Was Measure 37 a failure?
Over at the High Country News, contributor Randy Stapilus (of Carlton, Oregon) has a take on Measure 37. To him, it looks like it's a failure for the right-wing anti-land-use crowd that pushed for its passage.
Many claims, however, involve small issues, like requests to place a single house or guest cabin on a piece of farm property. Such projects were often barred under the old land-use laws. And all of those laws, heated rhetoric notwithstanding, do remain in place. So do provisions related to health, safety and other concerns, any of which may limit property use without triggering a need for payments or waivers.Measure 37 has not turned out to be as liberating as some property-rights advocates had hoped. Waivers are allowed only when land-use rules change after a landowner obtains the property; many claims have been rejected because owners sought waivers for rules already in place when they acquired the land.
Read the rest of "So far, Oregon land-use measure is more bark than bite" and come back and comment here.
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June 15, 2005
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Jun 15, '05
Measure 37 is only a failure because it has been thwarted by the AG. The voters voted for transferabilty, they should have it.
Jun 15, '05
Everyone I talked to knew from the get-go that Measure 37 wouldn't change nearly as much as its supporters and opponents said it would. Also, I can't believe people are suprised that it only applies to laws imposed AFTER property was purchased. I thought it was pretty clear all along that the point of the measure was that government shouldn't be able to change the rules on you after you already purchased your property without compensating you for the loss that resulted from that change. The idea that it was a total reversal of all land use laws and that people could be compensated when they never lost any rights was ridiculous. Such confusion, however, is the natural byproduct of two highly polarized campaigns that refused to acknowledge any compromises had been made, instead preferring to frame the issue in black and white. I suppose that makes it easier for the partisan voter who isn't interested in nuances or intelligent decision-making. But it always results in amusing, if not sad, articles like this one.
Jun 15, '05
Andy said The voters voted for transferabilty, they should have it. Call me old fashioned, but I always thought what went into law if something passed was the text of the measure, not what was said in the campaign. That is why some ignore all ads and read only the text of the measure, articles about measures, endorsement editorials, etc.
This is from the text of the measure in the online voter pamphlet--from list of what wouldn't change--the list also includes federal law, public nuisance, health hazard, etc. E) Enacted prior to the date of acquisition of the property by the owner or a family member of the owner who owned the subject property prior to acquisition or inheritance by the owner, whichever occurred first.
Sorry I don't see how that translates into "voters voted for transferability".
4:32 p.m.
Jun 15, '05
Don't rub it in. Let the 37-ites think they got something really wonderful, and maybe they'll quiet down. Don't goad them into "Son of 37."
Jun 15, '05
Andy - I quote from Measure 37 as passed by the people:
"(9) A decision by a governing body under this act shall not be considered a land use decision as defined in ORS 197.015(10)."
When Hardy Myers ruled that the rights were not transferable that were granted under Measure 37, he based that upon the language of Measure 37 quoted above. Only a land use decision provides development rights appurtenant to a property. Measure 37 development rights more closely fit the legal definition of a "license". Licenses are granted to one person for one purpose, and are not transferable.
So, yes, Measure 37 is a very shallow victory for those who want to subdivide farm lands. You can do it, you can even build track housing, but you won't be able to get conventional loans on the property. All lenders have a policy not to put their money at risk on property unless it can be rebuilt. Since the land use development right under Measure 37 cannot transfer to the new owner, the right to rebuild a home if destroyed (by fire or whatever) is not part of the deal. So, you could buy that home developed on what was that farmers field, but you better come with all cash, because you won't get a loan.
Anyway, I'm not an attorney, but that's my understanding. At least that is my policy as the only fee appraiser in Crook County. I will inform every lender that subject to legal intrepretation, it appears that homes or other improvements built upon Measure 37 created parcels cannot be rebuilt after sale to a new party (someone other than the Measure 37 petitioner or their family).
6:37 p.m.
Jun 15, '05
There's a principle at stake that I don't hear much talk about. Over the course of decades, Oregonians spent literally hundreds of thousands of hours to craft land use policy for the state. It wasn't a fait accompli forced on rural Oregon by demonic Portland, but a rich tapestry of decisions that protected rural Oregonians as much as it did serve the new urbanism of PDX. So the question is: what's so hot about our system that a half-assed, ill-advised electorate whose only research was reading the propaganda of land developers minutes before ticking off "yes" to M37 can undo that work? (Never mind that it may have been less draconian than the developers wished.)
If there was ever an argument against the initiative system, this is it. It definitely favors pure democracy. It also favors stupid decisions by people unqualified to make them.
Jun 15, '05
Hold on Jeff -
Measure 37 would never have passed if not for the votes from Portland and Multnomah County.
Oregon's land use laws were constructed by all the people of Oregon. Most of us in rural areas like most of the land use laws. Protection of true farm grounds is important to us. Creating areas to segrate industry is important to us. Keeping range lands upon for grazing is important to us. However, and this is a big "however", the Oregon Land Use and Development Commission has been riding roughshod over us for years. Since the Portland Metro area has Metro to intervene, you won't hear much about that in Portland. What has happened is a great divergence away from the spirit of SB 100 and what started under Gov. McCall. While I was on the Crook County Planning Commission, I witnessed representatives of the State come into our meetings and insert themselves into individual land use decisions. -- That just doesn't happen in Portland!
Jeff, you say, "...a rich tapestry of decisions that protected rural Oregonians as much as it did serve the new urbanism of PDX." That was true up to a point, but then the bureaucracy got bigger, stonger, and more imperial. Oregon's LCDC is largely responsible for the unhappyness in rural Oregon, but they don't mess with Portland much.
There is a "principal" there Jeff, but the LCDC ripped it to shreds years ago. Like many things in life, we are more upset by the broken promise, than we would be if no promise were ever made.
Now environmentalism, not to be confused with land use, is a whole different issue in terms of a "demonic" Portland (to use your term) forcing its will on rural Oregon. I know that these two different issues tend to blend together, but its best to keep them straight went we talk about this stuff.
10:29 p.m.
Jun 15, '05
Jeff - Steve's basically right. The original land use laws were created by rural folks to protect their farm land against the encroachment of urban sprawl. Why? Well, if you have a farm, and there's a reasonable expectation that you could build condos (due to legality and due to other condos next door) then you get taxed at the "highest and best use" rate - as if it were condos. Farm guys didn't want to get taxed off their land; they wanted instead to farm the land.
That's why the county farm bureaus fought for SB1000 back then, and why some/most of them opposed Measure 37 now. (The state farm bureau is another story; having been captured by the GOP.)
1:31 a.m.
Jun 16, '05
The article focuses on current claims relating to past changes in land-use laws, and the Measure 37 campaign used a lot of personal anecdote stories to gain sympathy.
But I always have had the impression that the sponsors of the measure were at least as interested and probably more interested in tossing a Moncke wrench into the works of new regulations, rezonings and so on -- in other words, in obstructing or preventing future planning, and extension of the process Jeff describes. Has Measure 37 failed on that score? Can/do we know yet?
A related purpose of the measure in my view is to establish a basis for future speculative rent-seeking by certain kinds of real estate interests, essentially creating a basis to shake down government entities. It is interesting that the type of right-winger who is quick to invent fantasies of candidates using public election financing money to buy small contributions on margin, as it were, studiously ignores the incentives for abuse built into Measure 37.
Does the AG's opinion apply in cases where someone is granted an exemption from a new land use regulation? If it does, what does that mean? Say for the sake of argument that someone got an exemption from a new zoning regulation, built something that would have violated the new zoning absent Measure 37, and is able to sell it to an unwitting buyer. Would the government entity that did the zoning then be able in principle force the new owner to repurpose whatever had been built to comply with the zoning, or to tear down structures impermissible under the zoning?
I also have had an idea that Metro and the Portland metro urban growth boundary (together perhaps with some other UGBs around the state) were particular targets. How is that playing out? How will Measure 37 affect the next go-round of expansion of the PDX metro UGB?
Also, does anyone know if Measure 37 applies to itself? I bought my house in the expectation that various land use regulations that apply to it would also apply to my neighbors. Now they may not. If my neighbor does something that increases the value of his or her property based on a Measure 37 exemption, but reduces the value of my property, can I make a claim against the state for the lost value because the state (in its guise as the sovereign people) changed the rules under me?
Measure 37 backers would be perfectly happy if I could and did, of course -- if I could, it would seem that the state's only option would be to compensate me, as there would be no way to exempt my neighbor's property from Measure 37, and if the state had to pay such compensation, there would be that much less revenue to spend on all the services the property and tax nuts hate. Unless of course the state were forced to raise taxes to pay such compensation.
While the above is a bit facetious, it has a bearing on the UGB question.
At least part of the reason for property values inside the UGB being what they are is the UGB. If Measure 37 eventually causes the UGB to crumble, presumably quite a lot of property values inside the UGB will fall. While I doubt if anyone really would have a Measure 37 claim as a result, it does raise the question of whether Measure 37 could be the pin that pricks the metro area real estate bubble.
9:22 a.m.
Jun 16, '05
Kari and Steve, I think you misconstrue my point (probable evidence of crappy writing). I agree with both of you. My point was that the original land-use planning in Oregon wasn't a liberal or conservative hobby horse jammed down opponent's throats. Land use laws represented the culmination of one of those extremely rare public policy processes where innovative thinking drives compromise so everyone walks away happy and proud.
Steve, I was talking in more theoretical terms about the initiative system undoing in one single vote what took years of work by dedicated, informed, diverse leaders to create. Of course Portlanders voted for M37--they were hoodwinked along with everyone else. Portlanders are liberal, but I have no evidence that they're better informed than the rest of the state. I do find it slightly disingenuous on your part to blame the trouble on environmentalists. What I see is the breakdown of that initial agreement into feuding between developers, environmentalists, and farmers that led to the politics-as-usual compromises in recent decades and years. That escalation was what led to M37.
Jun 16, '05
Afew things:
10:17 a.m.
Jun 16, '05
Actually, by and large, the farmers, developers and environmentalists all were against Measure 37. Because it threatens farming (by creating conflicts with neighbors), creates huge legal uncertainties in the real estate market, and allows sprawling developments that harm clean air and water.
The people who never bought into Oregon's land use laws have always been 30% of the population who are anti-government folks. Oregonians In Action's charter is anti-gun control, anti-tax, and anti-land use. They partnered with some conservative developers and the timber industry who hates Oregon's forest practices act, and created Measure 37. Remember -- Measure 37 applies to all laws that impact land use, not just Oregon's "land use laws". With public health and safety exceptions, and other exceptions, that is. Measure 37 calls out farm and forest practices specifically.
And Kari, the state Farm Bureau supports Oregon's land use laws, last I checked. They sat out Measure 37 because of some weird internal dynamics. But while they support Republicans at the ballot, I think they're lobbying against the Ringo Measure 37 deal and the Garrard deal as well.
As poll after poll have shown, the voters didn't think they were voting on Oregon's land use system -- they thought they could have our land use laws and eat their cake too. With over 1000 claims, and counties and cities waiving laws left and right, there are significant impacts on Oregon. I think the jury's still out on whether M37 ends up being a death of 1000 cuts, or more of a legal morass with relatively limited damage.
<h2>Of course, Oregonians In Action said they "crossed every T and dotted every I" and now are looking to expand Measure 37 to include transferrability. Hmmmm.</h2>