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Measure 37 cutoff not to be ignored

Time may be running out for some property owners if they ignore a 90-day state deadline in hopes that legal challenges eventually shore up their development rights under Measure 37.

Both the Oregon Department of Land Conservation and Development and the authors of the controversial property rights initiative, Oregonians in Action, have urged property owners to consider their options closely or risk losing any rights they have to develop under Measure 49, the successor to Measure 37.

"I don't want to see somebody who could have gotten something getting nothing," said Dave Hunnicutt, president of Oregonians in Action. "We want to make sure as many of those 80- or 90-year-old widows make a choice and make a choice on sound advice."

Property owners - many of them elderly - with Measure 37 claims from both the state and the county started receiving letters from the DLCD in January advising them that they had 90 days to decide whether to pursue a fast-track option to build up to three homes, or a more difficult process to build up to 10 homes, or to prove they have spent a significant amount of money to be considered legally vested and continue to pursue their development plan.

Cora Parker, deputy director of the DLCD, said the property owners are required under state statute to respond within the 90-day limit.

"What we're urging people to do is not close any of their doors, to not shut any of their options off," she said.

Measure 37, approved by voters in 2004, attempted to provide property owners who have owned their land for many years with relief from development restrictions imposed under Oregon's sweeping land-use laws of the 1970s.

After property owners filed about 7,000 state claims under Measure 37, voters approved Measure 49, overturning the property rights law. Jackson County had approved 571 waivers of land-use rules on about 60,000 acres.

So far, at least three lawsuits - with more expected - have been filed in Jackson County, where the property owners claim the waiver they received is a contract that can't be overturned by Measure 49. If successful, the property owners are hoping that the development rights they received under Measure 37 would be restored.

Hunnicutt, who thinks the 90-day state deadline is not enough time, supports the legal efforts in Jackson County to retain full Measure 37 development rights, but he said property owners should realize the full implications of not pursuing their options under Measure 49.

Even if the legal challenge is successful, it could be difficult to legally prove the state waivers are also contracts, he said.

Compared with the rest of the state, Hunnicutt said Jackson County has become a hot bed of legal challenges to Measure 49. Jackson County has an unusually high percentage of property owners who don't have a waiver from the state as well as their county, he said.

Hunnicutt said property owners with approved waivers from both the state and county who don't think they are vested should strongly consider an option to build up to three houses.

"If they have the potential for relief under 49, the fast-track option will be far and away the easiest option," he said. "It's better than a poke in the eye with a sharp stick."

Throughout the state, Hunnicutt said his impression is that about 90 percent of the people who are eligible are picking the fast track. He said he supports Jackson County's efforts to create an ordinance that describes the process for determining whether a claim is vested.

Medford resident David Smith, a member of the newly formed group called Citizens for Constitutional Fairness that seeks full development rights under Measure 37, said he doesn't dispute that people should carefully consider their options under Measure 49, particularly the fast-track option.

"I think that's sound advice," he said.

However, he said the choices leave him cold.

"You're told to name your form of execution," he said. "Do you want lethal injection or a firing squad."

Smith said the legal experts he's talked to dispute that a state waiver is also needed in addition to a county waiver. Smith's mother-in-law has an approved Measure 37 waiver from Jackson County but not from the state.

Referring to Measure 37, he said, "Nowhere does it say that the state has to be included in the formula."

Smith said that his legal experts also agree that the waiver alone grants vested rights to a property owner.

Parker, of the DLCD, said the letter is being sent only to people who have a state waiver.

"If they're not already filed with the state, they're not getting any notice from us," she said.

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