Measure 37 — Now What?

By Edward H. Trompke

The big deadline for filing Measure 37 claims came and went on December 4, 2006. But that doesn't mean that all Measure 37 claims are over.

First, the state and local governments must process all the pending claims. Many claims are on hold either because they were filed as precautionary claims to protect rights for future use or because of uncertainty about what rights are protected by Measure 37. State and local governments have six months to complete their evaluation of recently filed claims.

In the meantime, the courts are starting to decide how to apply Measure 37. The first case in the court of appeals was argued at the end of November, but it addressed only whether Columbia River Gorge Commission regulations were exempt from Measure 37 as regulations required by federal law. Many cases are still in the trial courts.

In the meantime, any landowner who wants to pursue remedies under Measure 37 must comply with a requirement that did not exist before December 4, 2006. Now the landowner has a remedy under Measure 37 only after a regulation is actually applied as an approval criterion to a land use application. In practical terms, this means that if a land division is requested, the landowner first must submit an application and have it deemed "complete" at the expense of surveying, engineering, and other costs. After the application is denied or conditioned on regulations, the landowner may then file a Measure 37 claim demanding compensation and then refile the application with the Measure 37 waiver in hand to obtain approval.

Some governments have expressed a willingness to work with the landowner, but even then the process will not be easy. Measure 37 requires that a land use regulation be applied to the property before a remedy arises. But some governments may be willing to compress the process into one hearing, at which the government could deny an application, approve a Measure 37 claim, and then approve the application under Measure 37 (and as negotiated by the city staff and owner).

Ideally, developers and local governments will cooperate in reaching mutually satisfactory results and minimal costs.

Finally, when governments adopt new land use regulations, they should be mindful of Measure 37 and balance the regulations to add value, as well as diminish value, if they want to avoid Measure 37's requirement that the government compensate the owner for the lost value.

And that's the way things shape up with Measure 37 until the courts start handing down decisions.

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

BACK TO TOP | BACK TO ARTICLE INDEX | PRINTER-FRIENDLY PAGE