This statement here is the most confusing thing about the new bill:

"A property owner who prefers the original Measure 37 can proceed under it based on rights that are vested under common law."

What exactly grants vested rights? Is it an already approved Measure 37 claim? A building permit? Signifcant construction already underway?

If someone was willing to forgo transferability, and wanted to start construction before the election, would they be able to? Or will projects be limited to those that have already begun? If someone has an already approved claim, will they be able to proceed sans transferability even after the election?

The previous comment about vesting focuses on my main concern with HB 3540. It doesn't prevent large subdivisions from moving forward between now and the ballot referral vote.

A lot of damage could be done to Oregon farmland, forestland, and groundwater limited areas over the next six months or so.

As "Confused by Vesting" said, vesting does indeed generally entail having an approved claim, a building permit, and evidence that substantial construction has taken place.

My understanding, though, is that determining whether a claim has vested must be done on a case by case basis. This will be a goldmine for land use lawyers--and a nightmare for both claimants and concerned neighbors.

It'd be much better if the legislature would simply put a hold on Measure 37 claims for over three homes (or maybe ten). Waiting six months wouldn't be a huge deal for claimants wanting to develop a subdivision.

Building such a development is a complicated and lengthy process. My wife and I have been leading a fight against such a Measure 37 subdivision that's been proposed on groundwater limited farmland in the south Salem hills.

It's cost us and our neighbors $24,000 so far to challenge the claimant's unfounded assertion that there is plenty of water for the 43 homes he wants to build. An independent hydrogeologist hired by Marion County says that the subdivision may indeed harm existing wells and a spring that feeds a large lake.

So HB 3540 correctly limits Measure 37 claims in groundwater limited areas. However, the legislature needs to put a hold on large claims until the vote occurs, or much of the benefit of HB 3540 will be lost as claimants rush to become vested before the bill becomes law.

One side note -- I don't think there is any copyright restriction on public statements in the House and Senate. So if the text here was excerpted from copy supplied by Rep. Macpherson, the proper reference is "acknowledgment" rather than "permission." A small thing perhaps but an important reminder that the people's business belongs to all the people.

Now -- as they say during floor debate -- "to the bill." The combination of HB 3546 and HB 3540 is dissatisfying in many ways, but I believe it represents the best chance to stabilize the Measure 37 situation, rein in most of the abuses, and perhaps open up enough political space for revitalizing Oregon's land use system to provide protection for farm and forest land, orderly urban development, environmental protection, and enhanced protection for property rights of all property owners, not just those gaining a windfall from Measure 37's peculiar and discriminatory effects.

The vesting provision already mentioned is one short-term problem in this approach. But remember, this is one of many elements in a political compromise. To name just one positive thing, the valuation approach in HB 3546 would permanently repair a major defect in Measure 37, which requires "proof of loss" for claims with no method for doing so.

I don't intend to go through all the various components here, but there is one important thing to understand. If HB 3546 passes, it will completely clear the decks on the muddy debate over "what the voters intended." It will undeniably turn Oregon into a "regulatory takings" state, achieving a key goal of the development interests that fund the "property rights" faction. This would freeze the current system into place, at least until a new effort comes along to reshape the Oregon land use process, because under the HB 3546 approach, the prospect of even a handful of 10% loss claims would politically neuter almost any new land regulation.

That kind of chilling effect would hold back our development as a state. Oregon has changed dramatically in the last 30 years, and will continue to do so in the next 30, with a million new residents in Portland Metro and the growing impact of global warming on farming and forestry in this state, to name just two key factors. We need a land use system that is both viable and evolving. Today we have neither.

If passed by the legislature and approved by the voters, HB 3546 would also set a new standard to be emulated by other states, and I anticipate another wave of ballot measures elsewhere if that happens. This is another very troubling aspect of the current situation.

However, in my judgment passing HB 3546 is still the best available way we have to move forward at the current moment. And it will open up the challenge and opportunity of strengthening support for a revitalized land use system that is key to our state's future success.

This Bill is what 37 should have been. I urge voters to support HB 3540 in the November special election.

At the core of Measure 37 is lost value. This is the loss in value to a property that reputedly followed when the zoning principles of Oregon's landmark land use system came into play.

Under Measure 37 any loss in value opens the door to any legal development that would have been possible prior to the zone change. There are two very simple key terms here. They are the words "any" and "any."

The minority party does not like House Bill 3540 because it is a partisan bill and has no minority support. When this Bill comes to a vote and when candidates are up for election or reelection, voters should remember this and it should impact choices they make, for it reflects the minority party's concept of fairness.

House Bill 3540 recognizes that owners may have lost property value. House Bill 3540, though, removes the windfalls that follow from those two simple words, "any" and "any."

Oregonians seek fairness. Fairness was the motivation behind 37 and is why so many of us voted for the Measure. The backers of the Measure, though, did not play fair with us. They knew what those two words would do, though neither word is in the Measure.

HB 3540 corrects that oversight, and is generous as well.

If you have a claim, you can build at least one residence and up to three additional residences with no questions asked.

If you want more because you think your property values suffered more, the Bill provides a very simple process, adopted from Oregonians In Action and other, Southern, states. It works like this:

1. What was the value of the property one year before the zoning change?

2. What was the property value one year after the zoning change?

3. Was the loss in value at least 10%?

If the answer to question three is "yes," then the lost value is brought to the present day using the T-Bill rate. That determines how many residences you can build, not to exceed a total of twenty for all claims. If you have one claim, you can build a maximum of 10 residences, or up to the cumulative loss of value, whichever is smaller.

I discuss common law vested rights here.

A vested right is a use “under construction” that is inconsistent with a zoning ordinance but which is allowed to be completed, as a nonconforming use, because the property owner took substantial steps toward developing the use prior to the enactment of the zoning ordinance. Whether a landowner has taken sufficient steps to have acquired a vested right is an issue of fact that is decided on a case-by-case basis. The landowner must have taken substantial steps toward beginning construction or incurred substantial costs toward completing the job. The Oregon Supreme Court has recognized the following factors as relevant to whether the right has vested: ratio of expenditure made to total expense of complete project, good faith of the landowner (whether landowner knew of pending land-use regulation), type of expenditure (whether the improvements could apply to other uses), kind of project, location, and ultimate cost. In addition, “the acts of the landowner should rise beyond mere contemplated use or preparation, such as leveling of land, boring test holes, or preliminary negotiations with contractors or architects.” Platted but undeveloped land is not a “use” in zoning law for purposes of establishing a vested right for a prior nonconforming use.

In all likelihood, we will probably only see a handful of successfully vested M37 claimants before this fall. Even with M37 waivers, much work needs to be done in terms of approvals, permits, and so on. And even after that, they must the significantly develop.

(Incidentally, I didn't write the blockquoted part above... that is a citation from my blog entry.)

I will also point out that it would appear that any claimant who attempts to rapidly develop so as to "beat the clock" to avoid imminent land use restrictions (i.e., HB 354) is probably violating the "good faith" requirement for successful vesting of rights.