M37 clause stirs up claims

Measure’s two-year deadline confusing some Oregon landowners

By Rachael Scarborough King / The Bulletin
Published: November 20. 2006 5:00AM PST

Confusing language in the text of Measure 37 has led to a spike in the number of claims filed in recent weeks in Crook, Jefferson and Des-chutes counties.

One clause in the measure seems to set a deadline of two years after it went into effect – Dec. 2, 2004 – for filing claims. But local planning authorities say landowners can still file claims after December, even though the process could involve more paperwork.

Measure 37 allows landowners to file a claim when land use regulations enacted after they bought their property reduce its value.

The measure reads: “Written demand for compensation … shall be made within two years of the effective date of this act, or the date the public entity applies the land use regulation as an approval criteria to an application submitted by the owner of the property, whichever is later.”

That means that people who want to file a Measure 37 claim on their land after December would have to first file a land use application, receive a rejection based on current regulations, and then file their claim, said Tanya Cloutier, senior planning technician for Jefferson County.

Currently, landowners can file a claim without first making a formal land use application and receiving a rejection.

Measure 37 went into effect 30 days after it passed, Nov. 2, 2004. Local planning experts said many claimants seem to believe there is a hard and fast deadline approaching in December.

“There is and there isn’t,” Cloutier said. “What’s happening at this point in time (is) that most people, rather than having to come in and go through an extra process to receive that denial, they’re trying to get it in before that Dec. 1 deadline.”

Cloutier said that Jefferson County has received 103 Measure 37 claims since 2004, and 19 in the last two weeks. Crook County has seen 34 claims filed overall, with about 10 in the last few weeks. Deschutes County has experienced a smaller bump, with 12 claims filed in the last five weeks out of 125 total.

“I guess the trend would be ramping up,” said Tom Anderson, director of the Deschutes County Community Development Department. “I would characterize it as a little spike to this point.”

Anderson called the language of the measure “a little bit ambiguous.” He said once someone’s land use application is rejected, they then have another two years to file a Measure 37 claim, assuming the claimant can show the rejection reduced the value of the land.

“If a person misses this two-year window next year, they may have to file some kind of land use application and be denied in order to have that enforcement kick in, which would give them another two-year window,” he said. “What form that enforcement needs to take is yet to be determined because it hasn’t come up yet.”

DeAnn Tschantre is a Bend resident who filed a Measure 37 claim with Crook County on 39 acres she owns in Powell Butte. She said she filed her claim in October in part because of the December deadline.

“We were going to try and sell the property first, but it’s just way more valuable if we can take advantage of the laws that applied to the property when we acquired it and divide it into three parcels,” Tschantre said.

Crook County Planning Director Bill Zelenka described the language of the measure as “clear as mud.” In fact, Crook County essentially sued itself in Circuit Court last year in order to help clarify certain aspects of the measure.

“What is really needed at some point is some real defined clarity to a bunch of these issues, including ownership, date of acquisition, transferability and those kinds of things, and they need to be consistent throughout the state,” Zelenka said. “It’s not fair to citizens if somebody in Crook County gets it one way under a looser interpretation and an adjacent county under the same situation would be much more restrictive.”

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