The following is an essay I put together trying to explain why the "vesting of rights" of M37 claimants is a BIG deal. 
THE OREGON OXYMORON
Measure 49 in Context
by Jack H. Swift, Esq.
One might reasonably suggest that Measure 49 is almost un-Constitutionally vague and ambiguous. This is particularly true where it comes to the provision for protection of vested rights that might have accrued under Measure 37.
Measure 49 proclaims that there is a carried-over right to proceed under the waivers where one can demonstrate a common law vested right to do so. Measure 49, however, does not define a "vested right." Worse, it limits such vested right in terms of the common law. Measure 49 then likewise fails to define "common law." These concepts might sound simple but they are engulfed in a sea of ambiguity.
An initial issue of debate and litigation in the State and Federal courts in Jackson County relates to the question of what right is vested? Is it the accrual of the cause of action established under Measure 37 to recover monetary compensation for the regulatory diminution of the value of one's property by the imposition of regulation subsequent to one's purchase of the property? Is it the right to enforce a contract between the County and the claimant established by way of Measure 37 waivers? Is it the traditional land use right grounded in concepts of equitable estoppel to finish what one has begun? If it is the traditional land use interpretation, how does that square with the proclamation of both Measure 37 and Measure 49 that decisions undertaken pursuant to either are not land use decisions?
"Common law" in one sense relates to the distinction between the controlling decisional law (case law) of a jurisdiction as opposed to its statutory law. In that regard, an interesting legal debate arises in that in general practice, specific statutory law traditionally trumps case law. The initial ambiguity in Measure 49 is its apparent attempt to establish case law as controlling statutory law. Thus, Measure 49 apparently calls for case law standards in the vesting determination process in spite of Oregon's existing statutory law (the goalpost acts) which establish a bright line test for vesting of land use rights as opposed to equitable considerations. The legal validity of such establishment is currently under litigation in the Deschutes County courts.
A secondary question regarding the "case law" interpretation is "the case law of what jurisdiction?" Does Federal case law trump State case law in the eyes of the statute? Is State case law limited to Oregon case law or is one to look at the overall national body of law? Or does one look beyond that in this common law analysis?
"Common law" also applies to some five centuries of legal tradition under the so-called English common law system of justice. Oregon law unfortunately, in the area of land law, has evolved into an inherent contradiction of our traditional legal concepts of land ownership and use. In our legal tradition, the primary indicia of land ownership are the right to enter the land and the right to use the land. (The power to effectively sell the land is a function of the right to use it.) Title to the land is simply documentary proof of those rights.
However, the common law recognized that circumstances could arise wherein there could be a sharing (and potential conflict) of those rights between a titled owner and a user who happened to be a stranger to the title. Frequently, situations arise where a titled owner allows a stranger to the title to use a portion of the land, perhaps as a road. The stranger through prolonged usage develops a justifiable reliance upon the availability of that usage. In that circumstance, whose right should prevail? To resolve that conflict, the common law evolved the concept of easement, whereby a servitude was imposed upon the land itself, regardless of who owned it, whereby the right of usage is vested in the hands of strangers to the actual title. That is the traditional English common law system of land ownership.
In Oregon, the State's legislated Comprehensive Land Use Planning Program has turned that legal tradition upside down. In Oregon, ownership of the land is not to be confused with the right to use the land. The right to dictate the use of the owner's real property in Oregon has been usurped by the State's Department of Land Conservation and Development. The right to use the land has become not a function of ownership but, rather, a license granted by the DLCD.
In the Oregon system, the question of whether the titled owner and possessor has acquired a vested right to use his own land is, in a real sense, equivalent to creation of an easement in the owner. Perhaps what the common law might call an "inverse easement?"
The fact is that there is no such legal instrument in the common law of land ownership. The entire idea is contrary to centuries of legal tradition. And therein is the Oregon Oxymoron.
If you believe that the ownership of private property still includes the right to use that property as one sees fit, limited only by a duty not to do injury to one's neighbor, the ratification of M37 waivers as contracts is a VERY BIG DEAL.
 
 
jhswft@earthlink.net
EarthLink Revolves Around You.

People might think Velda Dickey is lucky owning 70 acres next to a commercial area off Interstate 5 in Ashland.

What most people don't realize, she said, is that she can do very little with the land, which is primarily zoned exclusive farm use.

"It's not easy owning property," said the Medford resident, whose family helped pioneer the valley and bought the property in 1961.

Dickey and her family had hoped a Measure 37 claim would finally give them some flexibility, but their hopes dimmed with passage of Measure 49, which becomes law today.

They fear the measure will be used as a vehicle for the state to take away what they see as their rights.

Joy Olson, Dickey's daughter, said her father, if he were still alive, "would be flabbergasted to know what my mom has gone through to save this land."

"It's like you've chosen Miss America and found out she's a cross-dresser," said Dickey's son-in-law and Olson's husband, David Smith.

Smith has argued before Jackson County commissioners that Measure 37 waivers are constitutionally protected and cannot be overturned or changed by Measure 49.

The Dickey property is located just behind the La Quinta Inn on Valley View Road and is bordered by Interstate 5 and Eagle Mill Road.

Under Measure 37, approved by voters in 2004, a property owner could either get a waiver for a restrictive land-use law or be compensated for the lost value.

When Jackson County first began approving Measure 37 claims, it didn't require that a property owner also file a claim with the state. Circuit Court Judge Phil Arnold ruled in January the county erred in not requiring property owners to file a state claim. The county approved waivers of land-use laws on 571 claims.

Measure 49, billed as the "fix" for Measure 37, places sharp limits on development, allowing up to three-parcel lot splits in a fast-track process.

Jackson County commissioners treated Measure 37 applications like tort claims, and in Smith's opinion, the waiver was just another way to compensate the landowner and should be considered as no different than rendering a judgment in a lawsuit.

He said that instead of compensation, the county essentially paid the landowner by removing the offending land-use restriction and restoring market value.

Citing Article 1, Section 21, of the Oregon Constitution, Smith said that vested rights conferred by legal judgments cannot be overturned by a legislative act.

The Oregon Department of Land Conservation and Development has issued guidelines that suggest the rights of property owners who have received a waiver from the county but not the state are greatly diminished. The Dickey property only has a county waiver.

"The DLCD has it wrong," stated Smith in a letter submitted to county commissioners recently. "It is suggesting a dangerous, unlawful and wrongful course of action."

Stephanie Soden, spokesperson for the Oregon Department of Justice, said, "We would disagree that it is a tort claim."

However, Soden said these and other matters could be challenged in the courts.

In January, the state lost in the Oregon Court of Appeals a case known as Corey versus the DLCD that found property owners with waivers are entitled to certain benefits under the law. Soden said the state has appealed that ruling.

Smith argued that the rights of property owners should not be considered on a case-by-case basis to determine if a claim has been vested.

General guidelines from the DLCD for determining whether a property owner is vested include the requirement that a considerable amount of money must have been spent toward the development cost in addition to having the necessary state and local waivers.

Soden said the state has disagreed with Smith's analysis. "It really is a case-by-case basis," she said.

About 300 court cases from Measure 37 are currently working their way through the court system. "I don't know that anybody thought we would be debating this many complex issues," she said.

County Commissioner C.W. Smith, who isn't related to David Smith, said the legal argument posed by David Smith is interesting, and the county is still hoping for more clarification from the state before adopting a position on Measure 49.

"It's a legal puzzle that we're trying to figure out, and we're trying to figure out how to put the pieces together," the commissioner said.

David Smith said that what he's seen so far leaves him unimpressed with the new legislation.

"Measure 49 is the slickest piece of legislative chicanery to come down the pipe," he said.

Reach reporter Damian Mann at 776-4476 or dmann@mailtribune.com.

From: Trailmix4me2@aol.com
To: smithdc@jacksoncounty.org, WalkerJW@jacksoncounty.org, gilmoudr@jacksoncounty.org
Date: Thu, 6 Dec 2007 14:30:03 EST
Subject: Measure 49

As a M37 claimant, I am asking that you choose to determine "vested rights" under M49 here in Jackson County, at the local level.  It is my strong opinion that every M37 claimant who applied for and received a waiver from Jackson County and the State of Oregon entered into a contract with those agencies and were promised certain rights that now are endangered by M49.  We need you to take a strong position that those development rights granted under our M37 waivers are "vested rights", regardless of the total amount of money spent on development so far.  We trusted the government and you to protect the rights we were granted, and so far, our governor has not done so.  The voters of Jackson County clearly approved M37 and rejected M49, and you are in a position to make a difference for us now that M49 has passed.  Please keep in mind that once again, our local voice was drowned out by our northern neighbors who mostly live in urban environments and do not understand the issues rural property owners face under current land use regulations.
 
Please step up on behalf of those people you represent, who have twice acknowledged at the polls that our land use system is broken.  Please take the lead in determining "vested rights", and do not sell us out to the
state, who is not looking kindly on M37 petitioners, despite the "spin".  Under state guidelines, it appears that only 15 of the 571 local claimants have vested rights under M49.  This is wrong.  I spent about $10,000.00 to pursue my M37 claim and my Partition Application.  That may not sound like a large amount, but it is HUGE to me, and I did that in good faith, trusting I would be able to use my property for the petitioned purpose. I haven't had a vacation in over 20 years, I drive a car that is 15 years old and am retiring this year on a very small amount of SS.  I do not trust the governor or LCDC to protect my M37 rights, I am trusting YOU. 
 
Please do not let all the "little folks" down, as M49 is a veritable minefield of potential problems for us and we need our commissioners to take a leadership role in correctly representing the Jackson County voters. 
 
Please keep in mind that you are not alone, as the Big Look Task Force agrees change is needed to correct erroneous zoning and restore more local control.  Do you ever wonder why Oregon is the only state out of 50 to have state controlled land use planning?  I am a native Oregonian, and love where I live.  I support sane, coherent land use planning but I do not support a state planning system that dictates a lockdown of rural lands and removes local control.  I have owned my 80 acres since 1967.  It is now zoned WR20, and designated forest land.  In 40 years I have harvested less than $10,000 worth of trees from this "High Value" forest land, spent almost as much removing dead and diseased trees and managing the land.  Where is the "High Value" return?  $250 per year, before expenses?????? I don't think so.  My land, like many other rural parcels is incorrectly zoned.  Please help me and other petitioners protect our restored rights under M37.
 
Dorothy Lippke
P.O. Box 22
Trail, OR 97541
541-878-3366

 

BLOG   POOR GUY'S ALMANAC

USED TO BE A FELLOW COULD FIGURE OUT HOW TO MAKE THE BEST USE OF HIS LAND AND IF HE NEEDED A BARN FOR HIS COWS HIS NEIGHBORS GOT THEMSELVES ORGANIZED, TOOK A DAY OFF AND HELPED HIM BUILD A BARN.   CHANCHES ARE THEY PAINTED IT RED LIKE EVERYBODY ELSE HAD.

HEARD OF A FELLOW THE OTHER DAY THAT WAS CELEBRATING HIS FIFTH ANNIVERSARY.   WASN'T FIVE YEARS WITH HIS WIFE; WAS A FIVE YEAR RELATIONSHIP WITH THE GOVERNMENT PLANNERS WHO WERE MAKING SURE IT WAS OKAY WITH SOME ARISTOCRATES UP IN THE STATE CAPITOL IF HE BUILT A BARN ON THE FARM HIS GRANDFOLKS HAD HOMESTEADED. SEEMS THE COMMITTEE IN CHARGE OF BARN COLORS COULDN'T REACH A CONCENSUS ON WHAT SHADE OF EARTHTONE WOULD LOOK GOOD TO THE ARISTOCRATS IF THEY HAPPENED TO MOTOR PAST THE FARM ON THEIR WAY TO ONE OF THEM RETREATS THEY HOLD OUT WITH MOTHER NATURE.

MY COUSIN NATHAN'S BOY BOBBY WHO IS GOING TO SCHOOL IN EUGENE IS COMING HOME FOR THANKSGIVING.   HE WAS ALL EXCITED BECAUSE THERE WAS SOMETHING LIKE A 4H CLUB ON CAMPUS.  SOME GUYS ARE ALL EXCITED BECAUSE THE ARISTOCRATS JUST PASSED A NEW LAW TO MAKE SURE MOST OF OREGON IS PRESERVED  EXCLUSIVELY FOR FUTURE FARMERS TO USE.   GOTTA ASK IF HE HAS RUN INTO ANY OF THOSE HIGHLY EDUCATED SCIENTIST FELLOWS THAT ARE WORKING  ON HOW TO GET STUFF TO GROW ON THE FARM LAND AROUND THESE PARTS.

JEB JUST CALLED ME TO ASK WHAT I THOUGHT ABOUT MEASURE 49 PASSING.   I TOLD HIM I WAS SURE SUPRISED IT DID.   WE COULDN'T FIND ANYBODY WHO HAD  BEEN ABLE TO FIGURE OUT WHAT IT SAID SO ME AND MA JUST VOTED NO.   I GUESS THE ARISTOCRATS UP NORTH WHO ARE BETTER READERS FIGURED OUT IT WAS A GOOD THING BECAUSE MOST OF THEM VOTED YES.  BEST I COULD GET OUT OF IT WAS THAT IT SINCE IT WAS MEASURE 49 THEY MUST OF PATTERNED IT AFTER THE 49ERS BACK IN CALIFORNIA THAT THE GOVERNMENT LET FILE GOLD MINING CLAIMS.   THIS ONE  SAYS, I GUESS, THAT SOME FOLKS WILL BE ABLE TO ACTUALLY BUILD A HOUSE ON THEIR FARM.   GOOD NEWS FOR OUR FRIENDS OUT IN  SAM'S VALLEY WHO BEEN LIVING IN A FIFTH WHEEL ON THE FAMILY FARM AND USING A PORT A POTTY(WHICH I GUESS IS AN OUT HOUSE YOU CAN RECYCLE).  DID YOU KNOW THE U S GOVERNMENT TOOK THIER FARM DURING THE 2ND WORLD WAR?  THEY DID GIVE IT BACK AFTERWARDS.   UNFORTUNATELY IT MESSED UP THEIR DATE OF ACQUISITION FOR THEIR MEASURE 37 CLAIM.   SEEMS UNCLE SAM WASN'T IN THE DEFINITION OF FAMILY MEMBER.

HARRY'S WIFE, SALLY, JUST GOT HER REAL ESTATE LICENSE.  I TOLD HIM TO HAVE HER CHECK OUT TO SEE IF SHE COULD FIND SOME GOOD FARM LAND THAT WILL GROW CROPS.    SHE CALLED ME BACK RIGHT AWAY.   SIAD THE WORD AMONG THE REAL ESTATE FOLKS IS THAT ITS A BUYER'S MARKET.  SAID THERE'S A WHOLE BUNCH OF PROPERTY THAT MAY BECOME AVAILABLE.  MIGHT BE PRICED RIGHT, TOO.   SHE ASKED ME TO KEEP IT UNDER MY HAT CAUSE IF THE WORD GETS OUT THERE MAY BE A BIDDING WAR.   SEEMS SHE FOUND OUT AT A SEMINAR THAT THE ARISTOCRATS HAVE DISCOVERED A WHOLE BUNCH OF HIGH-VALUE FARM LAND THAT IS REALLY EXCLUSIVE; FOR FARM USE ONLY.   HOPE SHE CAN FIND ME SOME THAT WILL GROW A CROP BECAUSE IT WOULD SURE BE FUN TO BE REALLY EXCLUSIVE AND HAVE A PLACE THAT STUFF GROWS ON.  MA SAID SALLY ALWAYS WAS AN OPTOMIST SO I SHOULD'NT HOLD MY BREATH.   SHE SAID SHE WON'T MOVE ON A PLACE THAT DOESN'T ALREADY HAVE A BARN ON IT WITH AN APPROVED PAINT JOB CAUSE SHE IS TIRED OF MILKING THE COWS OUT IN THE RAIN.

MA WAS RIGHT.   SALLY JUST FOUND OUT THAT THERE'S TALK THAT THE FARM LAND SHE HEARD ABOUT ISN'T ALL THAT EXCLUSIVE.   SEEMS IN ADDITION TO THE BARN PAINT COMMITTEE THEY'RE GONNA A NEED A COMMITTEE OF SOIL SCIENTISTS TO FIGURE OUT WHAT TO PUT IN THE SOIL SO THAT IT WILL GROW CROPS.  I TOLD HER THEY WOULD SURE HAVE THEIR WORK CUT OUT FOR THEMSELVES.  THEY'LL NEED TO FIND A PLACE TO HAUL ALL THE ROCKS AND CLAY TO BEFORE THEY CAN START BRINGING IN DIRT.