Oh, come on. This is more important than Mo Cheeks being fired?

Actually, it's funny, as OIA said they'd crossed every t and dotted every i. Of course, M37 may not help Dorothy English, etc. It's time the legislature threw out M37 and drafted their own fairness bill.

Um, maybe I missed something, but is Harvey's decision really surprising? M.37 was about the right for a property owner to use their land. Not about the rights of the land. Is there really an argument for any other read of the Measure on transferability?

A hissy fit would genuinely erupt only if Karen Minnis were to introduce legislation that required the separation of PERS costs from the ongoing education costs to keep schools functioning. The school districts often repeat that they have no control of the PERS costs that get blended into their education budgets. The Oregonian champions this belief system and so too does Stand For Children and the Chalkboard Project folks. The PERS stuff gets skimmed off by the Oregon Department of Education and redirected to PERS without ever reaching the schools. The schools claim it is the state's business, alone, . . . this PERS stuff, so it only makes logical sense that it be a separate item in the budget appropriations.

Minnis is either being too blind or too kind.

So? I ask. What is the school budget, the real school budget? I'd go with the plan to keep schools open,

But, Ginny, don't you know that the NEA and the public employee unions have already pledged to pretend that stocks are a good value. The assumptions of the continued bubbling growth of stocks is the very reason that state and local governments across this great land have borrowed countless billions of dollars for their pay-as-you-go pension plans; their modified hybrid pension plans. Do you really expect that the public employee sector will go back on their word in their bargain with the neocons . . . and necessarily admit that they were wrong and deceptive in their demand for borrowing public dollars to plop into stocks? The dismantling of SS was part of the plan all along, and the public employees already have their cake, and they want to eat it too. GO GET EM! Go knock yourself out trying . . . trying to save us from ourselves.

I felt that the Measure 37 "Opinion" by Hardy Myers (let's get his name right, he is from Crook County after all!) was well reasoned. I kept my voter's pamphlet from this last election just to keep the wording of Measure 37. Section 9 says, and I quote, "A decision by a governing body (meaning mostly County Commissions or Courts) under this act shall not be considered a land use decision as defined in ORS 197.015(10)." Most people probably were glazed over by the time they got to Section 9.

I don't know about every County's ordinance on land use, but since they have to be approved by LCDC, I bet that around the State they are pretty similar. When I was on the Planning Commission here in Crook County, "land use decisions" included all those things that were generally allowable by zone, but which required action such as subdivisions, partitions, and variances. Action was taken through "Conditional Use Permits."

So, if Farmer Joe has a 80 acre parcel that is just outside of Prineville, and he wants to give up on farming rocks and subdivide for houses, but he is in an EFU (exclusive farm use) zone; he might have a Measure 37 claim. According to the Measure, he or a family member would have the claim if they owned the land since the offending ordinance went into effect. In Crook County that would mean 1978. Let's say he did own it that long. Prior to 1978 the minimum lot size would have been five acres, so he can proceed with a claim to subdivide into about 14 lots, (those of you with a calculator would know that 80 divided by 5 is 16, but you have to leave room for streets and such).

Right now bare land ready to built lots are going for about $40,000 here (yep we got cheap land). As bare land the 80 acres would go for maybe $160,000 - and as lots it would go for $640,000. (Do you begin to see why people wanted Measure 37?) The difference would be the Measure 37 claim, $480,000. Crook County doesn't have that kind of money laying around, so they would grant the Measure 37 exemption to Farmer Joe to develope his subdivision.

But subdivisions are not just pieces of paper. They require survey's, road development, water and sewer, and so on. Big unanswered question - would Farmer Joe have to pay the system development fees that went into effect in the last 10 years for parks & rec, water and sewer, etc? Generally the subdivision development cost is going to be notable, maybe $100,000 or more to take the 80 acres and get it ready for lot sale.

So, Hardy Myer's decision is this. Farmer Joe can't go in and get his Measure 37 exemption, and then turn around and sell the 80 acres to Snidely Developer and have the subdivision right go with it. Farmer Joe has to develop the lots, and then sell them directly on a lot by lot basis to buyers to perserve this. I have read the language of Myer's decision, and actually, I'm not sure if selling the bare lot is enough, Farmer Joe might even have to put the house on it too.

Once a house is on the lot created in this manner, I doubt that the property would revert back once sold and then immediately require that the house be torn down - but it would still be in the Exclusive Farm Use zone because a land use decision for a conditional use was not made. The zoning language does state that you cannot rebuild a use that is no longer permitted - no grandfathering. So, if the house later burned down, the way it looks to me, you couldn't rebuilt it.

I am a real estate appraiser. I know of no lenders that will loan on the basis of a grandfathered use where you cannot rebuild. There is no point to fire insurance if you can't rebuild.

This decision is a real blow to those that want to use Measure 37 to get around land use development laws. About the only scenario I can think of where this decision doesn't affect much is when a corporation owned a piece of land they wanted to use. What if PGE owned a 40 acre parcel they wanted to put a gas/electrical plant on, but zoning killed it? Since PGE can self-insure, and will continue to own the land, they could now build their power plant or get paid not to.

When you think through the Myer's decision, I think it has about killed Measure 37.

Thanks Steve that was informative. Using your example however, it seems to me that a developer could front Farmer Joe the necessary development fees with the understanding (through a contract supposedly) that Farmer Joe would sell the developed land to the developer once Joe jumped through all the M37 hoops??

Interesting Comment Engineer - But think about it a minute.

Snidely Developer could team up with Farmer Joe to create a subdivision using Measure 37. But - even though they could write a contract that Farmer Joe would split profits with his investor, that contract could be secured by the land, but only the land prior to the subdivision. If Snidely Developer and Farmer Joe have a conflict, and that happens all the time, Snidely Developer might be out all his money and have to foreclose against the collateral of the land - but Snidely Developer is then stuck with land he can't develop - he doesn't have Measure 37 standing.

If Snidely and Joe do get along, and they get to the point that they have sold all the new homes - they still have the zoning problem / can't rebuild the homes problem.

One further thought - these lots probably won't be able to get title insurance.

There is a precident for this kind of thing. Sometimes land is given as a restricted gift. For example, someone might give land to a Hospital, but have a reversion clause in the deed that if the land is no longer used as a Hospital, the land reverts to the donor, or his descendants. These sorts of reversions of property, while rare, do happen.

Perhaps the same sort of process will happen with Measure 37 based on Myer's decision. So long as the Measure 37 applicant controls/owns the land, they can do what they want, but as soon as they sell, there is a reversion of law. Yep, that could mean tear down the house, tear down the auto shop in the farm field, etc.

It is also my understanding that when the Attorney General of Oregon issues an "opinion" - it has the effect of law until over-ruled by a court. It would be binding on all Counties unless Myer's specifically said it was not.

Things may actually play out very fast with Measure 37.

Excellent analysis Steve. That was really helpful.

It seems to me that with Myers decision, M37 only helps people who want to build an extra home on their land for their family. It doesn't help people get rich off the land.

Which is a great compromise if you ask me.

IMO, the legislature needs to enact meaningful land use reform. Yet, I sincerely doubt they will ever be able to agree on anything. And as such, we're just going to have another M37 in 2006.

Believe it or not, back when I was working on Measure 7, our intent was right in line with Hardy Myers' decision. We never intended for rights to be transferable to future owners. We only wanted property owners to be able to use their land the way they could when they bought it. I'm not sure about the benefit to a community of your interpretation of this grandfathering thing, however. If a house in a neighborhood burns down, the lot is unlikely to ever be used for farming. It would simply remain an eyesore for the rest of the neighborhood. How does that help anyone? Why would people support the law being implemented in that way? At a point you have to be realistic and not press for your idealogy so much that you create a stupid governmental system. That just leads to more frustration and more reactionary initiatives. Anyway, I think Myers' decision goes to show how much everyone on the left bought into the over-the-top anti-Measure 7 and anti-Measure 37 scare tactics.

The UGB was/is based on a 20 year supply of land. If, say, 200 years passes or the UGB is instead based on a 200 years supply of land won't most of the M37 claimant's land fall within the new UGB's?

A feature of the definition of property is the right to alienate one's interest in something, which is essential to creating markets. If the right to develop is personal what then shall I make of the treatment of the new fangled concept of “Tradeable Development Rights?” Are they property or personal stuff dependent upon the whim of a future politician?

Consider this proposition - When you die your house must be either torn down or given to your kids. Sounds absurd. It all sounds as if the fixed definitions of property are themselves at issue. There is no property, there is only the king and his merry band of servants, each given little protectorates, and then a bunch of peasants. Lets all cheer the retreat from liberty shall we.

Becky's post was the point I was trying to make. I thought that the supporters were really arguing that the rights would only extend to the individual, not the property.

Now I fully expect them to try to go further, because I think they really wanted to get rid of all land use planning, not just making the system more fair.

Or, to the benefit of Becky, who I think is a nice person who has earnest ideas that are taken to extremes by the thugs and obnoxious jerks she hangs out with, some of the people around M. 37 and OIA will use the measure to get rid of big chunks of our planning system.

Me thinks that Mr. Gazelle is a little thirsty.

The potential of "non-transferable rights of property improvements" for anyone that purchases after the current owner "wins" a claim to improve, and improves upon it; their property is a nice way of slowing down M37 claims against the various municipalities.

Again, we are going to lose credibility with these types of games.

When that old lady was on those ads did she say she wanted to use the land for herself? NO -- it was for her children.

All of us who opposed M37 said that if it passed it would pass on to the next generation and provide for rural subdivision -- now we find some loophole????

I hate the hypocrisy of the right and I am starting to hate the hypocrisy of the left. Hardy et. al., you undermine our credibility with these legal games!!!