Measure 49

On November 2, 2004, the voters of Oregon approved statewide Ballot Measure 37, which entitled property owners to file a "demand for compensation" (a monetary claim) with local and state agencies if they believed that a land use regulation imposed on their property while in their ownership had reduced the property value.  Thousands of claims for compensation were filed around the state.  Locally, a total of 26 claims were filed with the City of Bend.  Most of these claims were ultimately withdrawn by the claimants or denied by the City Council.

On November 6, 2007, the voters of Oregon approved statewide Ballot Measure 49, which essentially repealed Measure 37.  The full text of Measure 49 (House Bill 3540) is posted on the City's website at the link listed at the bottom of this webpage.

For new claims for compensation made after June 28, 2007, a claimant must show that:

• Claimant is owner of the property and all owners of the property have consented in writing to the claim;
• Claimant intends to use the property for residential use;
• Claimant's desired use of the property is restricted by one or more land use regulations enacted after January 1, 2007; and
• The enactment of one or more land use regulations after January 1, 2007 has reduced the fair market value of claimant's property.

If the claimant establishes the information required above, the City must:

• Compensate the claimant for the reduction in fair market value of the property; or
• Authorize the claimant to use the property without applying the land use regulation to the extent necessary to offset the reduction in fair market value.

Some of the major differences between Measure 37 and Measure 49 include:

• For new claims filed under Measure 49, the City can charge a filing fee in an amount not to exceed the actual and reasonable cost of reviewing the claim.  As of February 6, 2008, the fees for filing a Measure 49 claim in Bend are $3,000 + $500 per dwelling or lot/parcel + $200 postage/notice fee + 4% surcharge.
• Reduction in value is determined by comparing the fair market value of the property from one year before the enactment of the land use regulation to one year after the enactment of the land use regulation, plus interest.  In order to show reduction in fair market value, the claimant must provide an appraisal.  If the claim is based on more than one regulation, the reduction in value for each regulation must be determined through a separate appraisal.
• Successful claimants are only entitled to establish 1 to 10 single-family dwellings, the value of which is equal to the reduction in fair market value of the property.
• Waivers run with the property and are transferable.  There is no expiration date, except that when the owner who obtains the waiver conveys the property, the subsequent owner must create the lots or parcels and establish the single-family dwellings authorized by the waiver within 10 years of the conveyance.
• A determination made by the City under Measure 49 is not a land use decision.  An owner or person who timely submitted written evidence, arguments, or comments during the City's review of the claim and who is adversely affected by the City's decision may obtain judicial review in Circuit Court through the writ of review statutes.  Judicial review under Measure 49 is limited to evidence in the record, and is available only for issues that were raised with sufficient specificity to allow the City to respond.

On February 20, 2008, the City Council adopted a Measure 49 Ordinance (NS-2093) in order to repeal the City's previous Measure 37 Ordinance (NS-1966) and to establish new procedures for filing and reviewing claims for compensation for property that is located, in whole or in part, inside the City's Urban Growth Boundary (UGB).  The complete text of the City's Measure 49 Ordinance is posted on the City's website at the link listed at the bottom of this webpage.

The purpose of the City's Measure 49 Ordinance is explained in Section 1.  The proposed ordinance contains definitions of 15 important terms in Section 2.  The process for reviewing Measure 37 claims filed on or before June 28, 2007 is set forth in Section 3.  The submittal requirements for Measure 49 claims are found in Section 4.  The City's Measure 49 claims review process (including notice requirements and the applicable review criteria) is described in Section 5.  The City Council's procedures for reviewing claims and making decisions (including public hearing procedures) are set forth in Section 6.  Section 7 explains that the claimant bears the "burden of proof".  Section 8 states that a decision to waive a land use regulation does not impact the claimant's duty to comply with other application regulations, or to obtain other required approvals or permits.  Section 9 states that minor procedural errors will not invalidate the City's decisions.  Section 10 requires Measure 49 waivers to be recorded in the county deed records.  Section 11 grants the Council discretionary authority to reconsider a decision on a Measure 49 claim under certain limited circumstances.  Section 12 explains that the Council's decisions can be appealed in court. Section 13 requires that decisions on Measure 49 claims must be fair, impartial, and based on the applicable review standards and the evidence in the record.  Section 14 states that compensation can only be paid based on the availability and appropriation of funds for this purpose.  There is a standard severability clause in Section 15, and Section 16 states that the City's Measure 49 Ordinance is subject to any amendments, modifications, clarifications or other actions taken at the state level.   The new ordinance was placed into effect immediately upon its passage on February 20, 2008, and it retroactively applies to December 6, 2007 (the date that Measure 49 went into effect).

For further information about the City's Measure 49 Ordinance, please contact the City of Bend Planning Division at 388-5580.

Ballot Measure 49

City of Bend Measure 49 Procedures Ordinance No. NS-2093

Measure 49 Claim Form