United States: Buyer Beware: Attorney General Says Measure 37 Waivers Are Not Transferable

In an eight-page letter of advice to the Oregon Department of Land Conservation and Development (DLCD), Oregon's attorney general took the position that when a local government decides to modify, remove, or not apply (i.e., waive) a land use regulation under Measure 37, that waiver is personal to the owner making the claim and does not run with the land. To the extent that local governments and courts follow the attorney general's advice, waiver remedies under Measure 37 on farm and forest land will essentially be useless, because these waivers would not be transferable to subsequent owners of the property. This odd result sets the stage for litigation and legislation concerning the so-called transferability issue. Meanwhile, property owners with valid Measure 37 claims will be left wondering whether to file claims now or wait until the issue has been resolved. During this interim period, the attorney general's opinion will likely have a chilling effect on property transactions involving Measure 37 property, because a transfer may eliminate Measure 37 rights. If the legislature does not effectively respond to the attorney general's opinion this session, it could be several years before the transferability issue is finally resolved by the courts or in a subsequent legislative session.

The attorney general's opinion addressed two questions:

1. Is a waiver personal to the current property owner? and
2. Can a local government make "blanket" waivers, where all claims that involve a particular law are automatically waived?

To answer the first question, the attorney general analyzed the text of the measure in context, and the history of the measure. Focusing on the two sections of the measure that authorize waivers, the attorney general determined that the text of those sections strongly suggested that voters intended the waivers to be personal. The attorney general then analyzed the history of the measure. The history includes the ballot title, arguments for and against the measure in the Voter's Pamphlet, and newspaper commentary. From this analysis, the attorney general concluded that, while not very helpful on the issue, the measure's history is generally consistent with the interpretation the attorney general reached from the text-in-context analysis.

With respect to blanket waivers, the attorney general stated that a local government may not waive a regulation on a blanket basis if that regulation is required by state law. This means, for example, that any local regulations enacted to implement the Statewide Planning Goals are not waivable under a blanket waiver. In practice, it means that there will probably be few, if any, blanket waivers that affect rural land, but there could be such waivers that affect urban land.

Although the attorney general followed the legally correct process in reaching his conclusions, the conclusions he reached are by no means the only conclusions that could be reached from such an analysis. For example, although the measure does focus on the present property owner, this is to be expected in a statute that is predominantly remedial, and there is nothing in the text of Measure 37 that is inconsistent with the notion that these remedial measures can also be permanent, in the sense that they run with the land. In other words, there is room for a great deal of interpretive disagreement even if all of the interpreters use the same interpretive tool, so unless the legislature resolves these issues, they are almost certain to be litigated.

Trying to predict the prospects for legislative action with regard to Measure 37 is a lot like counting your chickens before they're even conceived. It was widely known that the attorney general's office might take this position, confirming what DLCD and the Governor's office had been saying since the measure passed: namely, that waivers should not be granted, and if they are, they are personal to the current owner. So far, the legislature has been hesitant to wade into the debate over Measure 37. Even with the attorney general's opinion and the problems it presents, it seems unlikely that the legislature will be compelled to weigh in. In the meantime, property owners and transferees should consult with counsel familiar with Measure 37 and they may want to consider seeking specific remedies that modify or remove the applicable land use regulations through a zone change or other means of modifying or removing the relevant regulations. In the end, the choice of whether to "waive" regulations—and if so, how—is with the governing body of the government that enacted the regulation. These uncertainties point to the need for negotiating solutions on Measure 37 claims.

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