Measure 37's dirty little secret
Russell Sadler
“A Circuit Court judge ruled that Jackson County has overstepped its authority with the state of Oregon and has added language that doesn't exist in Measure 37 to wrongly assert that claims can be transferred from one property owner to another,” reported the Medford Mail Tribune’s Damian Mann earlier this month.
"Under any legal analysis it is clear the voters did not intend Measure 37 claims to be transferable," Judge Phil Arnold wrote.
"We got clarity," said Commissioner C.W. Smith. "That's what we asked for."
Former Sheriff Smith, one of the brighter bulbs on the Jackson County Board of Commissioners, knows Measure 37’s dirty little secret. Measure 37 is deliberately vague because its supporters feared it would not pass if their real intentions were known.
The most prominent issue is “transferability” of the privilege of either being compensated for implied losses due to downzoning or of being exempted from those zoning provisions.
Jackson County argued that “transferability” is a property right that runs with the land, and that Measure 37’s provisions can be sold to a subsequent owner. This creates a market in land on the fringes of urban growth boundaries that gets special treatment that neighboring properties don't get.
"There is no support for this position of the county in the language of Measure 37," Arnold ruled. The judge also held, “The terms 'transfer,' 'transferability,' 'transferable,' and 'subsequent owner' are not found in Measure 37."
In an op-ed piece in the Oregonian, James L. Huffman, a professor at Portland’s Lewis and Clark Law School, spins another fantasy about Measure 37.
“Measure 37 is also about government paying its way along with the rest of us,” write Huffman. “If Oregonians don't want Plum Creek to develop 32,000 acres on the Oregon Coast, let's pay Measure 37 compensation or even buy it from them.”
Oh really? You cannot find that language anywhere in the text. And the public debate, such as it was, over Measure 37 was all about the pathetic plight of Dorothy English, not Plum Creek.
Prof. Huffman is not a dispassionate neutral commentator on this subject. Huffman was apparently part of a committee that wrote or reviewed Measure 37. He is telling us what he intended the measure to mean even though those words are not in the text of the measure people voted on. Huffman is doing the political equivalent of working the referees. Courts don’t even let legislators do that.
Once an initiative is approved by voters it is no longer the property of the people who wrote it. No one lawmaker has the last word on interpreting a statute, once it has been passed by the legislature, and sponsors do not have the final say on how to interpret their initiative if it is passed by the voters. That process is constitutionally reserved to the courts. Judges do take notice of ‘legislative history” -- hearings testimony, words uttered in debate on the floor, vote explanations recorded in official journals of the House and Senate -- but legislative history is only advisory.
The first thing a judge does when asked to interpret a statute or an initiative is simply read the plain text -- the words on paper. That is exactly what Judge Arnold did.
Measure 37 cannot be “fixed” if you mean “repaired.”
“Correcting” the deliberate vague language simply allows the measure’s supporters to enact revisions voters never approved. Measure 37 can be “fixed” only in the same way you would neuter a pet so it is harmless and cannot reproduce. The campaign for Measure 37 was inherently deceitful. Yet supporters of the measure insist it was passed by 61 percent of the voters. “What part of 61 percent don’t you get?” they complain.
The emerging answer to that challenge is “at least one-third.” There is growing evidence that many Oregonians who voted for Measure 37 would not vote for it again, knowing what they have learned since all these claims have been made -- buyers’ remorse. There is also a private, unpublished poll that shows nearly one-third of those who voted for Measure 37 would not vote for it again if it was put back on the ballot.
This growing evidence that Oregonians are changing their minds suggests a solution to the legislature’s dilemma in the best Oregon tradition. Instead of being bullied into “fixing” the unfixable, the legislature should suspend the chaotic Measure 37 claims process and put the measure back on the ballot during next year’s primary or general election. It can be framed either as a repeal of Measure 37 or an affirmative reenactment. Then informed voters can decide the fate of the measure knowing what they do now about its sponsors’ no-longer-veiled motives.
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Jan 28, '07
I agree, they should overturn it. As a matter of fairness to all landowners in the state, they should also overturn SB100.
Jan 28, '07
GT, have you personally talked to "all landowners in the state" and has every one of them told you they want to overturn SB 100? Seems to me there are homeowners (who by definition own land) who opposed Measure 37, and farmers who were against the OIA in some / all of the court cases.
As I recall, there was a decision in Prineville where the local government said "we won't change our rules--how much money do you want in compensation?" and totally boggled the minds of the people who had filed a Measure 37 case to build on or near a bluff the local government wanted protected. Does GT know for a fact that all the people who made that Prineville decision rent and none own land? Sounds like wordsmithing/propaganda to me to include all landowners in GT's claim.
Russell is right as usual.
I am getting really tired of hearing initiativemeisters saying "but what we intended our measure to say was...". I can think of a measure I supported where great care was taken in the wording but the Supreme Court threw it out anyway. Seems to me too many measure sponsors are sloppy in the way a measure was written and then if it passes say "Well, the voters have spoken, and this is what they said".
If the Measure 37 sponsors wanted transferability in the measure, they could have written it that way. That they didn't include that in the measure leaves it open to judicial interpretation. I'm with Comm. Smith on the issue of clarity.
Jan 28, '07
Great Russ - but you left out a part of this debate.
What the voters voted upon with Measure 37 has a part you haven't mentioned. I kept my voter's pamphlet for Nov. of 2004 expecting there would be a lot of debate later about Measure 37. So here is section 9 of Measure 37 as quoted from the Voter's Pamphlet:
"(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)."
Land Use decisions mean decisions about zoning, the allowability of partition or subdivision, and related ordinances that regulate what can or cannot be done within zones.
This is the root of where the "debate" over transferability comes from. Section 9 has been intrepreted by Oregon's Attorney General and most recently by this Jackson County Judge as meaning that the Measure 37 "right" extends to the property owner who owned the land prior to a new law or regulation that reduced a property right that the owner had. In real estate law, that kind of a right is called a license. It is a form of right attached to a person, a personal right not appurtenant (e.g. attached) to the land.
My read of this is that a Hood River Valley farmer can divide up his land under Measure 37, or get paid not to, but then what? If said farmer creates a bare land parcel in an EFU zone with a 20 acre minimum parcel size, but that parcel is only .25 acres, can the buyer of the bare land build a house on it? No. The land use regulations don't permit residential use in a farm use zone except for farm dwellings.
So, the farmer builds the house on the .25 acre lot as is his right under Measure 37. Then he sells it. The house burns down. Can it be rebuilt? No. Therefore, that house can't get insurance, and that house can't get a conventional loan - if people are paying attention.
What happens if they aren't paying attention? A lot created under Measure 37 has a house. No one tracks this 10 years later. The house might be purchased and sold again a couple of times. Realtors and others lose track that this is a Measure 37 property. The house burns down. The owner goes in for a building permit and is denied as the zoning doesn't allow that house to be there. The owner wasn't told, but should have been. So, the owner brings a lawsuit against the Realtors involved, the real estate Appraiser, the Title Company, the prior owner, and anyone else that owner can think of. -- Messy, messy.
Another aspect of Measure 37 that is troubling is the notion of "just compensation". A lot of people that voted for Measure 37 were thinking that they were upholding the Constitutional concept of "just compensation". When the government takes away your property, or a right to your property, the owner deserves compensation for that loss.
But what Measure 37 creates is beyond "just compensation", in fact creating "super compensation". I owned a 13 acre parcel in a zone that allowed land division to 2 acre sizes in the mid-1990's. In the late 1990's due to a court decision in Curry County, Crook County was forced by the State to change the zoning to a minimum lot size of 5 acres. My potential six lots then became a potential of two lots. I later sold that land prior to Measure 37. But let's say I didn't. I sold that land in 1999. At that time I could have got about $15,000 each for the 6 lots. I sold the land for $25,000 as one undivided parcel. Today, those six lots would each sell for $80,000, and the 13 acre parcel recently sold for $135,000. If I had held onto that land and made a Measure 37 claim, I could either get the right to divide to six lots, or claim $345,000 of loss for compensation (6x $80,000 - $135,000). But when I lost my rights, that loss was $65,000 (6x $15,000 - $25,000). That large increase from $65,000 to $345,000 represents the increase in land values in this area, but is clearly higher than inflation. Measure 37 requires the "super compensation" of current value versus value at the time of loss plus interest/inflation.
Anyway, Measure 37 is a complete mess. Unless the Legislature acts soon, we will see our courts increasingly tied up with the fall out from this measure.
12:38 p.m.
Jan 28, '07
I don't know Russell, your respect for the voters and your assertion that they are now educated on this topic, tend to fly in the face of history.
I think I'd like to see what the kids in the legislature come up with, before I gamble on another campaign where the "I've got mine" crowd spends a million five to sabotage rational debate and the collectivists spend two million eight to counter them.
2:52 p.m.
Jan 28, '07
Steve raises a key passage of Arnold's decision, but the implications Arnold takes from those words are different. Arnold's point in saying that there's been no land use decision or change in policy, is to question why the natural effect of the law would be to exempt subsequent owners from those policies. The waiver/compensation is entirely current owner-oriented, and I think Arnold was right to wonder why he should interpret any benefit for future owners from the measure, when not even the idea of previous or future owners appears as an entity in the text.
Furthermore, it is that very orientation towards compensating the current owner, and not enriching future owners, that drove the passage of the measure. Dorothy English's interests clearly follow the first model and not the second. So it's a little unbelievable to me that one could argue this ruling subverts the 61%.
Jan 28, '07
I agree: suspend first, then send it back for a revote. Washingtonians' sound rejection of I-933 was certainly based in large part by the "hoax" that they saw being perpetrated here. I'd wager that some of the strongest support for a repeal of M37 will come from Oregon's rural areas -- they've seen the teeth of the beast. And if Measure 37 is really about "government paying its way" then Huffman should have no problem with a vote to affirm reenactment. As for the cost of a revote -- all current lawsuits on the docket would become moot right? Taxpayers would save millions right there!
Jan 28, '07
Neither the status quo prior to Measure 37 nor our current condition are desirable outcomes. What we need is compromise. Measure 37 forced change on the zealots that resisted all compromise before and after Measure 7. While many folks aren't happy with what 37 has wrought, that's not necessarily the same thing as wanting it abolished.
9:34 p.m.
Jan 28, '07
Echo Gordie.
Jan 28, '07
The Urban Growth Boundary itself creates a market in land inside the UGB that gets special treatment that neighboring properties outside the UGB don't get.
Get it?
M37 has been a marvelous remedy for the very unfair planning being perpetrated on propoerty owners in this state for decades.
With all the deceitful rhetoric used to attack M37 I have yet to read ONE example of any harmful development which has resulted from a M37 claim. It's all "may, could, will" or more continued story telling about smelters, pig farms and widespread paving of farms, forests and wetlands. That and all the tlak about supposed costs to the stae without any recognition of the property tax windfalls coming to county coffers. Are there no honest critics of M37 armed with real examples of bad outcomes from real M37 spawned developments? Or is there nothing but the Mary Merten James' cabal?
Jan 29, '07
OK, that does it! It is one thing to talk about things like "M37 has been a marvelous remedy for the very unfair planning being perpetrated on propoerty owners in this state for decades. ".
That is a policy debate. But as a resident of Marion County and a friend of one of Judge James's friends, I'd like to know how that last line does anything but make people angry. Or was that the point?
If you think SB 100 should never have been passed because all that sprawl around Denver is what we should see in Oregon, that's a valid point of view.
But I don't see why an attack on a judge (not on the judicial opinion but on the judge personally) advances the debate.
3:11 a.m.
Jan 29, '07
I have yet to read ONE example of any harmful development which has resulted from a M37 claim.
Well, given how long it takes to get the financing for a development, pull permits, and get a project off the ground (not to mention the lingering transferability issue), any lack of developments is just a matter of timing... not the will.
Don't you worry, Richard, if M37 stays in effect - and, especially, if transferability magically appears in it - then you'll get your beloved sprawl. Condos in the countryside, as far as the eye can see.... Oooh, and Wal-Mart's in Wine County, too!
Jan 29, '07
Gordie & Kevin:
You'll be happy to know that Oregon is currently taking a Big Look at land use planning. The one good thing about M37 is it made it impossible to ignore the fact that a lot of people were dissatisfied with Oregon's land use planning.
It turns out that most people didn't want to abolish it altogether. But there were some genuine problems that had gone unaddressed for too long. Now we'll address them.
Here's what I hope happens: the legislature refers a repeal of M37 to the voters. M37 goes away. Then the legislature makes some needed changes to the -- let's be honest -- overwhelmingly successful land use planning that has made Oregon so livable.
Jan 29, '07
Though I disagree with his implication that land use planning is a crime perpetrated on land owners, Richard does raise a couple of interesting points. We should remember them:
Government effects the value of land. It always has and it always will. The UGB changes the market forces for land around Portland. When the railroads first went in across the West, their location determined which towns became major centers and which became ghost towns. The same thing happened with the interstate freeway system.
And with increased development, there will be some increase in property value and, hence, property taxes. I've seen nothing to indicate that the new revenue will come anywhere close to paying for the staggering cost of the M37 claims, but there will be some more revenue.
Jan 29, '07
Here's what I hope happens: the legislature refers a repeal of M37 to the voters. M37 goes away. Then the legislature makes some needed changes to the -- let's be honest -- overwhelmingly successful land use planning that has made Oregon so livable.
I probably agree with the sentiment and purpose of Bert Lowry's posts above, but his suggestion that the voters should repeal M37 and THEN the legislature will adopt some unspecified repair of Oregon's land use laws strikes me as absurd. How about if the legislature designs a package to repair the perceived inadequacies of Oregon's land use laws and passes it with the proviso that after the bill has been signed by the Governor, it will only become effective if Measure 37 is repealed by the voters at the next election. Giving the voters an intelligent choice, with an iron clad guaranty that the legislature won't double cross them, seems like the way to go.
Not that voters distrust politicians of course.
Jan 29, '07
TorridJoes comments about my statement again are one of these 180 degree backwards things so often written. He claims I said something in support of the transferability of rights under Measure 37, and frankly I didn't.
I think Measure 37 ought to be repealed, but it would go over best if that repeal happens in three phases: First, a time out for everyone, second like Bert suggests a time for the Legislature to implement changes in land use laws based upon the "Big Look", and third a final repeal of M37
Jan 29, '07
M37 as a remedy for unfair planning is a realtor's talking point, and it's backwards. SB 100 was the medicine for sagebrush subdivisions & coastal condomania. Sadly, we're in an "arms for hostages" situation now. In order to get the release of Oregon's livability, the Big Look folks have to send something back simultaneously -- even though they may not feel they're ready.
Jan 29, '07
Kari thank for confirming my point, there is not one example of and destructive development resulting from a M37 claim, but plenty of paranoia, pandomonium and propoganda from M37 opponents. And M37 did not waive or suspend ALL zoning, and land use laws on every piece of Oregon earth. Lay off the 1000 friends coolaid. The Big Look is just another illusion perpetrated to falsly give the impression some land use regulations are coming so why not suspend M37.
Bert, the property tax revenue from M37 construction of homes alone will be enormous. If Washington county claims only result in 500 new homes with an average tax of 4500.00, along with all the upfront fees, it means real money for county and city coffers. In stark contrast there is NO "staggering cost of the M37 claims". Anti-M37 public officials are liars, plain and simple. The token cost of processing them is effectively meaningless and very few claims will be paid in lew of granting the waivers.So where is the "staggering cost" if not merely coming from 1000 friends hype and the Mary Merten James Cabal? Yes, the personal charge aimed at a judge who has been shown by the OSC to have twisted Oregon's constitution to fit the anti-M37 agenda. Translation=dishonesty.
The UGB has proven to be a fanatics extreme tool that has spawned chaos which M37 opponents continue to call "planning". In reality the UGB has obstructed and delayed genuine planning while failing miserably to accomodate the needs of growth. In every way. Any effort to repeal M37 prior to fixing the horribly distorted SB 100 will be just mean more fraud with no fix ever coming at all. Let's see the M37 development first. What the cabal doesn't want to happen because it will prove beneficial to the state while resulting in essentialy none of the clamaity or cost this thread propogandizes.
Jan 29, '07
This is why we have to vote no on everything. A no vote on this measure would have spared us this garbage happening now. But what do I know? I am just a lowly constituent without any land. Best way to fix it is to repeal it. Just get rid of it.
Jan 29, '07
This is why we have to replace the abused and distorted SB100. A replacement would have spared us the continued planning chaos. I am a taxpaying constituent with land in four counties which I worked for and bought. I work all over the metro region. The transportation system and land supply have been retarded and is hopelessly dysfunctional. And is getting worse. Best way to fix it is to replace it. Just replace with reasonable land use regulations like so many other states have and stop the fantasy land use and transportation planning.
10:44 a.m.
Jan 29, '07
Okay... changing horses mid-stream.
Ditto BlueNote!!
I voted for M37. I will admit that I regret it. But only to the extent that what I though I was voting for turned out not to be entirely the case, coupled with my not having throughly thought it out first. But I don't regret viewing the existing situation at the time as being unfair and at times unreasonable. Well intentioned, to be sure. But, benevolent dictators are still dictators.
Jan 29, '07
The Legislature should:
Repeal Measure 37
Adopt new rural land use statutes that allow a single-family residence on any existing, legally created lot, and on new lots of at least 40 acres in size. On all rural lands in the state. Regardless of location.
Direct DLCD to adopt administrative rules that require new houses on lots on rural lands to have adequate buffers and setbacks from adjacent properties so as to minimize impacts on adjacent commercial agriculture and forestry.
The overly strict rural land use laws are what spawned Measure 37. It's time to fix that problem.
1:28 p.m.
Jan 29, '07
Steve, you doth protest to much. All I said was that the quote you supplied from Arnold's ruling, led you to a different (but not necessarily oppositional) conclusion than the one Arnold himself derived. Your point was that it established the current owner as a compensatable "licensee," but Arnold's point in using that language was to point out that subsequent owners can't get the benefit of a rule change, because the rule isn't actually changing on the books. The only people who qualify for remove/modify/not apply privileges are those who held the land in question at two specific times: before the regulation in question was enacted, and at the time of the M37 claim. That's it.
Whether what you say is true or not wasn't my point; it was to address what Arnold was trying to get across by saying what he did.
Richard is funny! He thinks there's no cost to finding employees to process and review 600 separate claims in 180 days, as Clackamas must do. And he thinks that Oregon would have no more sprawl than it does today, had SB100 not passed. And he also thinks the transportation system is one of the worst, instead of demonstrably one of the best. Funny, funny!
I think Kevin's perspective on M37 (voted for it, sorry to discover it doesn't do what he expected, still interested in a law that would) likely forms a significant portion of Yes voters. And it is their concerns--not those of misinformed and hyperbolic comments like Richard's--that should receive their due in the Legislature.
Jan 29, '07
How about we quit forcing high density and its pollution, congestion and high costs on the cities by dumping the UGB and letting people be free of urban concentration policies.
I don't want to live in a concentration city.
Thanks JK
Jan 29, '07
Richard,
Can you provide us with some examples of "calamity and chaos"? Something other than "I think traffic is kinda bad." I am genuinely interested to see what you are so angry about, and what changes on the ground you would like to see.
2:22 p.m.
Jan 29, '07
How about we quit forcing high density and its pollution, congestion and high costs on the cities by dumping the UGB and letting people be free of urban concentration policies.
Jim strikes a nerve with this one. I'm not sure that I'd take it as far (some degree of urban planning seems wise to me), but I too have no interest in living in an urban concentration camp.
Plus, has anyone noticed how virtually nonexistant the yards are in the newer uber-compact housing developments? The houses are packed right up against each other! It's an aesthetic nightmare!!
Surely there has to be some reasonable middle ground where both sides get some of what they want without resorting to either pre-UGB directionless sprawl or gawd-aweful-ugly urban concentration camps.
As a side note of sorts... any sociologists out there wanna venture an opinion or two on the sociological impact of a few generations of kids raised in nice big houses with no yards and nowhere to socialize with their friends outside other than roaming the streets?
Jan 29, '07
Grant asked "Can you provide us with some examples of "calamity and chaos"?"
Sure. But it's not simply anger. That's a worn out question. City after city is at a loss on what to go about growth despite 20 years of the region having so-called model for the nation planning. There's no money for master planning any of the growth areas, but plenty for Metro mission creep. We have one of the most worsening congested transportation systems in the country despite the fantasies the torridjoe's vision about. The shortage of affordable housing is worsening as fast as congestion without any plan to accommodate that need either. Industrial land supplies for employment are at crisis levels despite the phony Metro designations in 2004.
2002 UGB expansions sit idle, frozen by the hidden agenda of no growth Metro officials and planners across the region,,, and they know it. SoWa has been fraud costing many millions, the Beaverton Round as well. Damascus planning is a bad joke and every road project faces endless delays and obstructions by officials, planners and their allies. The Sellwood Bridge, Columbia Crossing, Sunrise Corridor, I-5/99 connector, Dundee/Newberg bypass and every other effort to accommodate growth in traffic capacity demand is being thwarted by irrational fanatics pressing to stop any capacity increases while conspiring to expand rail transit regardless of cost or effectiveness. It's all theory with these folks as Transit Oriented Developments are supposed to be some alternative when they are simply a smoke screen, waste of public dollars and a worsening rat race in the making. Just like the auto oriented Orenco Station area which is still held up as alternative planning success story. It must be true, there's all sorts of stories on the web about it.
Of course you wouldn't have any other impression but things are marvelous. The Oregonian and every other news source reports every day how swell it all is. The Tram is now a "linchpin for the whole region". What a crock. I'd like to buy the Tram for it's true insignificance and sell it for the hype it's wrapped in.
Out by the airport, Cascade Station has been a historical failure with once prohibited BIG BOXES now coming where a promised ped/bike rail mini-city was to emerge. Gresham Station now has Metro giving away it's two remaining parcels, and adding other subsidies, next to light rail after sitting empty for years. What for? Another TOD. Big deal. What's the return on that public investment of millions? Nothing but the trumped up fantasies about increased transit ridership while the whole area becomes a bigger auto oriented rat race. With no affordable housing. What's the answer for these planning guru folks? More fees and higher housing prices. More rail and more congestion. Light rail to Vancouver and total freight mobility gridlock.
But not to worry, haven't you heard? Oregon's new Sustainability Economy" will ride to the rescue.
M37 won't be causing ANY of the problems offered here.
The staff time for the initiail claims is a pittance compared to the coming fees and property tax increases every year, year in year out providing revenue to basic services.
Why can't M37 opponents be honest about any angle of M37?
Jan 29, '07
torridjoe: Richard is funny! He thinks there's no cost to finding employees to process and review 600 separate claims in 180 days, as Clackamas must do. JK: What’s the big job? Just look at the regulation that is being asserted against a given property - if it is health, safety or Federal mandate then deny else remove the regulation. Simple. Also gets the gov’t our of deciding who’s land is valuable and who’s is worthless.
torridjoe: And he also thinks the transportation system is one of the worst, instead of demonstrably one of the best. Funny, funny! JK: Are you trying to defend spending a BILLION dollars to remove 1/4 of one lane worth of traffic off of the Sunset with Westside MAX? Or $350 Million for Interstate ave MAX to replace buses and increase area congestion, while not fixing I5 right next door which is one of the most congested roads in the region and screwing up our economy. See: DebunkingPortland.com/Transit/RailAttractsDrivers.htm Funny, funny!
Thanks JK
Jan 29, '07
I have a professional relationship with a few local home builders. Without exception, they are apologetic and embarrassed over the fact that they are building $650,000.00 or $750,000.00 homes on lots which do not have yards big enough to kick a soccer ball or install a basketball hoop.
It is a fact of life that existing land use laws and regulations continue to increase urban density. Obviously the goal is to avoid "sprawl". I am not smart enough to be a land use guru, but it seems wrong that the average kid may grow up in a yard too small for throwing a baseball or kicking a soccer ball or whatever.
Jan 29, '07
Richard:
I'll grant that if every M37 claim results in a waiver instead of a pay-off, the tax revenue will be sufficient to cover it. But I don't think that will happen. Nor should it. Most land use regulations are there for a reason. And most people support those reasons.
I don't suppose anything I say will convince you so I won't waste my time. I'll just point out to others who are reading that you're wrong.
Property taxes are a small percentage of the taxable value of a piece of property. The taxable value is less than or equal to the real market value (usually less). M37 claims pay the claimant 100% of the expected increase in real market value. If the enforcing agency decides to pay even 1% of M37 claims per year, they lose money -- and that's assuming they can afford to dedicate all of the increased tax revenue to paying claims.
The old land use system had some problems that need to be solved. M37 threw the baby out with the bathwater. That's great for the people who hate babies; but the rest of us believe that the people in a community should be able to get together and decide how they want their community to be. Land use regulations are one of the ways we do that.
Jan 29, '07
Come on Bert. There's hardly any M37 claims being paid verus the waiver. If we use Washington County as an example the revenue issue is a no brainer. There is and will never be any significant cost RELATIVE to the increased revenue generated. How do you get those notions of yours? There will NOT be widespread claim payments at all. There is no need as the impact will be insignificant. The fee and tax revenue will be far more than sufficient to cover the few claims. You say, "Most land use regulations are there for a reason. And most people support those reasons."
That's why M37 does not override most land use regulations. Is it your honest misunderstanding that M37 claims override all land use regulations. Because that is patently false and a common falsehood used by M37 opponents. I hear and read it all the time. M37 allows smelters, pig farms, environmental waivers, water runoff on and on and on. Is there no honesty at all in the M37 opposition? A wide array of land use regulations and environmental protections remain fully intact WITH M37 approvals. Get beyond the distortions and realize water run off must be controlled. Public safety and environmental protections fully remain in virtually all M37 claims.
"If the enforcing agency decides to pay even 1% of M37 claims per year, they lose money" Oh BS. Where did you get that?
There aren't that many paid claims and new claims won't continue to appear every year while property taxes go on and increase forever. The baby has been drowning in the bath water. M37 merely loosens the drain to lower the level of the regulations killing the property rights baby. The people in the community should indeed be able to decide what their community should be. With reasonable limits and genuine community involvement. Not the faux public involvement so often utilized to advance pre determined planning outcomes.
Anyone who wants to see real damage versus the imaginary M37 damage just drive around the region in rush hour and look at all the spaceless, crammed together development our so called model planning has provided.
Keep many of the regulations, as M37 DOES,,, fire the planners.
Jan 29, '07
I don't know if Russ Sadler or many of the above posters have gone through the M37 Claim process. I have twice and helped/represented several other people. There are some misconceptions being thrown out here and other places.
In all the claims I know of there has been a processing charge from $850 to $1200. In my cases, staff time did not equate to the charges made. In Lane Co. the charge was $850. I received two confirmation letters (after requesting such letters) of receipt of information. My phone calls (none initiated by staff) probably didn't exceed one hour of staff time, the County Commission hearing provided five minutes to present the case, staff spent maybe ten minutes responding and taking questions from commissioners. This same scenario applies to Mult. Co. and Columbia Co.(which even charged more).
The additional costs to the M37 applicants (land use consultants, attorneys, architects, material costs, etc.) have been averaging from $10,000 to $15,000 for simple applications for small parcels. This proved true in my two personal cases. M37 has created a new "cottage industry".
In my parents case near Eugene, my parents owned the active farm since 1954. In the following decades before 1978 when state-wide planning/zoning restricted the property, adjacent farmers had divided their properties into 1/4 to 2 acre properties on three sides of my parents property with homes, septic tanks, and wells. These homes enjoy the views of our fields. What is interesting is that several neighbors in letters and testimony at the M37 hearing expressed that my father deserved to divide his land like the parcels that they have lived on for thirty years. They appreciated the decades of having "urban lots" but enjoying the "farm life" at no cost to them. And, of course, there were a few that thought "I have my small parcel and I want to look at these fields forever".
Father is now in his late 80's with cancer (Mother died 5 years ago) and can use the money from M37 land division, similar to English. The M37 claim was made for one acre parcels with two acres shown as an alternate. The one acre parcels would meet the septic and well state requirements. Like most M37 state-wide applicants the feasible maximum of development per existing zoning, health, environmental restrictions are requested. Even the attorneys strongly recommend requesting the maximum for legal reasons. But, like most applicants that is not what will be requested in the next stage of planning-the platting. What is amazing, is that not all applicants are "greedy", and have been longtime environmental stewards of their lands. They do not subdivide for the maximum. But according to the media, the Oregonian, and many posters (without indepth knowledge)they proclaim that the M37 claim numbers will be what is built. Wrong. And in the next planning stage there are numerous requirements that reduces that which can be developed. They are of different standards than that required in a M37 claim. But again, without "planning knowledge" the media misses that point again.
Contrary to Bert's thinking, in my parents case, the tax increases for Lane will increase over 50 times. First for the additional land parcels, and then for the improvements on each parcel; all this on 16 acres of land.
Steve Bucknum is missing very important points about "transferability". M37 had nothing in its language that limited transferability. AG Hardy Myers used subsection (8) in his "letter of advice" to make an argument that "to allow the owner to use the property for a use permitted at the time the owner acquired the property" as meaning this "use" rights are only personal to the owner. But he is forgetting that this "use permitted", besides the zoning allowed at the time, also includes the owners right to sell his property. Selling property, dividing property, is a "land use decision" that all our state and local jurisdictions acknowledges in their codes. Read your codes.
Just as some of the above posters and others asserted; they claim that M37 proponents are now making "interpretations" of M37, especially in regards to "transferability". Well, AG Myers has done just that in his "opinion" that Subsection (8) allows a city, county to avoid paying compensation to an owner by "modifying, removing, or not applying" the questioned land use regulations. Myers interpretes this as meaning the questioned land use regulation is temporary, and only applies to the present landowner if s/he has ownership in the property. This interpretation is also contrary to several legal OR and federal land-use cases in regard to the meaning of property. The most important part of M37 to understand is that "use of a property" is also the ability to sell the property; and that includes the new zoning acquired by a M37 successful claim.
Another interesting aspect of this anti- M37 media blitz is one of last weeks (and there have been many) pieces on the Hood River valley M37 claims. I probably have the numbers wrong, but the article claimed there were 10,000 acres in Hood River Co. with M37 claims. This is almost the acreage being added to Metro's UGB expansion(14,000 acres). Both have problems in providing for development because of no/limited services as required by all our zoning/building codes. But isn't it smug of us in the metro area to add even more acreage than HR, have "our cake and eat it too", and both without adequate services, and cry about the "devastation" it will cause HR.
Also remember my above comment that what is asked for in numbers in M37 claims is not what will be allowed or built. "What is good for you is not good for us" or the reverse.
The last time I reviewed Washington Co. M37 claims, over 98% of the claims were for dividing land with less than 5 home sites. There has not been one media analysis for a county or on a state-wide basis of what is the true nature of all the M37 claims. I know it is a little early to tell what the numbers will be, but I know it will be less than all the M37 claims purport. And of course we have not had any valid analysis of the economic benefits. Or the simple analysis that with all the claims only 1/4% of all of Oregon's land will be added to it's present 4% urbanization of it's land mass.
a democrat landowner
1:53 a.m.
Jan 30, '07
OK, this is getting ridiculous.
People, Measure 37 is only 2 pages long. Given its importance to the future of our state, if you haven't yet, please READ IT!
One notable point - the entire measure talks about compensation rather than waiver, with the exception of the following phrase:
If a claim has not been paid within two years from the date on which it accrues, the owner shall be allowed to use the property as permitted at the time the owner acquired the property.
So to add to the debunking of Richard's preposterous claim above, that the lack of an identifiable catastrophe resulting from M37 has any significance whatsoever: There hasn't been time!!! The law was suspended for several months following the 2005 Marion County ruling (and I'll echo LT's outrage at your animosity toward the public servant in question), and the ability to disregard regulations does not go into effect until 2 years after a claim is filed.
Add that to Kari's point about lawsuits and development projects taking time, and it starts to sound like you're asking us to wait until the horse has emigrated to Mexico before we pick up a hammer and get to work on the barn door.
As to transferability...I'm no lawyer, but how is this even controversial? Exactly what part of "as permitted at the time the owner acquired the property" is open to interpretation?? The only person "permitted" to do anything is the claimant whose compensation has been denied. The new owner has not yet filed a claim when they purchase the property, so compensation hasn't been withheld. So they are not "permitted" to do anything outside of the regulations at the time of purchase. How is there anything remotely controversial about that?
From that point forward, Steve Bucknum's nightmare scenario from above plays out...property becomes uninsurable, because it can't be replaced...mortgage companies can't give loans, due to lack of insurability...etc. (Thanks for spelling that out, Steve - very edifying!)
Can't these Libertarian measure-pushers get ANYTHING right??
Jan 30, '07
I took a drive into Portland on Sunday. I was so offended by all the growth and high buildings going on. I used to like going there and seeing the pretty city. Now it is ugly. I thought "planning" was supposed to take care of that. Maybe I should be complaining about that and try to keep them from doing that with their property. I shouldn't have to look at that mess when I go up there. But it should be none of my business......
Jan 30, '07
Oh Pete, you are lost in the M37 muck the opponents and Judge James rake out. As to "debunking" my claims, you have failed while deliberately piling on more misleading rhetoric. You say, "There hasn't been time!!!" And that is "debunking?" Only in the mind of a Judge James distorter. Just as Judge James purposefully distorted law you are distorting the reality that you can't come up with a single detriment yet to occur from any M37 claim. There "hasn't been enough time" for even one example? Well, I tell you what why don't you wait until the barn door is at least unlocked before blathering about the horse having all bet left the barn. Your echo of "LT's outrage at your animosity toward the public servant in question" is a hoot. The Judge, having been shown by our Oregon supreme court to have betrayed her repsonsibility to follow the law, deserves nothing but public shame. If you respect her for her attempts to thwart law by her deceitful means then you have serious ethical challenges as well. Take any county and fill in ALL of the M37 development with the REAL foot prints of the impact, versus filling in every parcel, and the effects are and will be insignificant. You, in your methods would have people believe the many false impression M37 opponents dishonestly perpetrate. It's not debunking,, it's dishonesty.
11:19 a.m.
Jan 30, '07
Richard:
Judge James ruled that the measure violates something called plenary power etc. I am not a lawyer, I have no idea what plenary power is. Are you? Do you? Care to spell it out for the rest of us?
If every judge whose ruling was overturned got canned, our courts would be a lonely place.
I'll be waiting for your detailed argument explaining why Judge James's decision was not merely mistaken, but constituted a disingenuous abuse of power. There's a big difference.
Jan 30, '07
Pete, Go read the James ruling and the OSC ruling that reversed her. If you think Judge James was merely using judicial discretion and not deliberate manipulation and "activism' then you are much worse than "merely mistaken" yourself.
12:07 p.m.
Jan 30, '07
I have perused both, and saw nothing that stands out as extraordinary. Though I'll repeat, I'm not a lawyer, and am not intimately familiar with the interpretation of judicial rulings.
There is, however, one thing that stands out to me: there was an organized effort to discredit her, and that effort failed to produce anything convincing. Had it succeeded, there would have been a news story or two about it, and there would be something for you to cite beyond the original text.
Instead, all I can remember is a demagogic spokesman who clearly had an understanding of the court system inferior even to mine.
Jan 30, '07
Pete, The most obvious thing that stood out to any intelectually honest person was: There was an organized effort by Judge James and 1000 friends to discredit and repeal M37,and that effort failed to produce anything convincing for the OSC justices. There have been numerous stories about it as well as the rulings text. It doesn't take ANY "interpretation" to read and know what the OSC debunking of James' activism means. Your problem is you are stuck on the BlueOregon thread where all of the usual suspects here praised the James ruling as wise and well founded. Of course they were all about as wise as the judge. Not So Much. Give up your hypocrisy of defending the judicial malfecience of Judge James while lambasting efforts to pull her from the bench. The OSC proved she is unfit. The failure of efforts to remove her only means there were enough people like you to defebd her malfecience.
3:06 p.m.
Jan 30, '07
Richard:
Your assumption that BlueOregon posts constitute a major part of my education on Measure 37 is incorrect.
Let me put thiks to you a different way:
My first opinion of Measure 37 was that it was a extremist policy, designed to appeal to populist sentiments while, in reality, aiming to serve a small but vocal and well-organized minority.
I won't swear off that view entirely, but my opinion has evolved somewhat.
I can now see that SB 100 from 1973 may have had negative effects I've been unaware of, and there may be injustices that have flowed from it, gradually creating the kind of public sentiment that could lead to a 61% approval of the measure.
I still believe that Measure 37 is bad policy, and should be reformed - but I am open to learning more about the sentiment that led to its adoption, and hope Oregon can find a solution that provides some restitution to anyone who has a legitimate claim to having been wronged by land use regulation.
In other words, I want to understand legitimate opposing views.
Your gratuitous attack on an individual (and I call it gratuitous because her decision is now moot) is a strong indication that you do not share that desire to find a widely acceptable solution. Even OIA's Dave Hunnicut has recently struck a conciliatory tone: "We've had [strict land-use] laws in place for more than 30 years," Hunnicutt said. "It's time to step back and see what works and what doesn't. Better late than never."
But it looks like you didn't get the memo.
Jan 30, '07
There was an organized effort by Judge James and 1000 friends to discredit and repeal M37
There was also an organized effort to recall Judge James---how did that do? Richard, were you an active supporter of that effort?
As the granddaughter of someone who was both a lawyer and a judge, I strongly support judicial review of ballot measures.
Do you have concrete evidence that a local judge was in collusion with a lobbying group (was it sloppy or intentional that you didn't capitalize 1000 Friends?) or are you just expressing anger?
Many residents of counties with lots of farming (Marion is one of those counties) are alert to the fact that once farmland is subdivided it won't go back to being farmland. That was the original idea behind SB 100, introduced into the legislature by a farmer.
Has Oregon land use planning needed some fine tuning over the years? Yes. Does that mean Measure 37 was the only possible answer? Lots of local folks don't agree with that contention. Thousands of Marion County residents voted on either side of Measure 37.
Which county do you live in, Richard? Are you an active member of OIA?
Jan 30, '07
Oh LT thank you for the elementary lesson. Imagine that, "once farmland is subdivided to won't be farmland again" And people are alert to it? Who told them? Geeze! What am I supposed to think about that? Let me tell YOU about SB 100. It was hijacked by envir-zoning-planning nitwits and zealots soon after it passed. Which resulted in it's immediate distortion brought about, primarily, by a reckless rush to label every piece of Oregon ground. In that careless yet purpose serving rush,sweeping inaccuracies mislabeled land across Oregon. That immediately caused land neither farm, forest or wetland/habitat to be needlessly locked up. The anti growth agenda was borne. Ever since our land use planning has been in need of major overhauling. Not merely the "fine tuning" the misinformed and M37 opponents suggest. The UGB "program" has been completely retarded over the years and used to block growth versus accomodate it with reasonable controls. UGB expansions were intended to provide needed land for all uses some time prior to the need actually arriving and turning to a shortage. Including homes with family sized lots and other uses now effectively prohibited. M37 was the only "answer" or way to deal with the current land use planning Tom McCall would be outraged over. There was no "fine tuning" coming, period. And every one of the informed M37 opponents know that is the case.
Whatever 1000 friends have convinced some of your local folks of has little to do with either the real land use problems we face or needed remedies which ONLY M37 and more like it will ever provide. Without them we would be repeating the last 20 years without any so-called "fine tuning" at all. I live in Washington County. I have never been an active member of OIA. And if I was? What? You would feel better drifting back into your revisionist and misguided views of our land use planning? Should more of you hurry to cast my critism as "anger" while continuing your drum beat for the perpetual dysfunction our land use planning is, allow me to clarify. I could not be happier. Having been a tremendous financial benefactor of the UGB/planning/land shortage inflation your anti growth, anti car extremist gurus have mindlessly perpetrated,,, I say thank you very much. Just like Homer Williams on the another outcome of the madness too many of you do not understand.
Jan 31, '07
Torrid Joe - apparently you don't know the meaning of the word "license". It means it applies to only one person, and it is not transferable. E.g I agree with the Judge, I don't disagree as you have stated.
Lee, you wrote, "Steve Bucknum is missing very important points about "transferability". M37 had nothing in its language that limited transferability. AG Hardy Myers used subsection (8) in his "letter of advice" to make an argument that "to allow the owner to use the property for a use permitted at the time the owner acquired the property" as meaning this "use" rights are only personal to the owner. But he is forgetting that this "use permitted", besides the zoning allowed at the time, also includes the owners right to sell his property. Selling property, dividing property, is a "land use decision" that all our state and local jurisdictions acknowledges in their codes. Read your codes."
Lee, I am a former licensed Realtor, a former County Planning Commissioner, and I am currently a licensed Real Estate Appraiser. I think I know what I'm talking about, and its clear you don't. I never said that selling property was a part of Measure 37 or impacted by Measure 37, in fact, I discussed the consequences of selling property created by Measure 37.
You have equated that part of the bundle of rights of a property, the right to sell, with the Government's police power of zoning regulation. What a mess - I don't even know where to start with you other than to say you are just wrong.
Nothing before or after Measure 37 impacted a property owners right to sell a property, you raise a straw man argument.
Section 9 of Measure 37 specifically and plainly says that Measure 37 does not overrule the police power of government as found in zoning regulations, which are the basis of land use regulation. Land use regulation is in fact only zoning regulation, saying what can and cannot be done with land.
Measure 37 allows an individual who purchased a property prior to a change in land use/zoning to do/have a use that was permitted when the land was purchased. In most cases, that means to have smaller parcels than now allowed. In some cases, like the case here in Prineville, it was about rimrock set back rules. That rule established a 200 foot setback from the top edge of our sharp rimrock formations, to preserve the view from our valley.
There are all sorts of rules attached to zoning that Measure 37 can be about. Lot line set back rules, percent of lot coverage rules, runoff rules, variance rules, etc. that have nothing to do with subdivision.
Prior to Statewide zoning implemented most places about 1978, but with some variance as Counties phased in, people couldn't just do anything anywhere. Most places had requirements that put one in front of a Planning Commission to approve a plan. What Measure 37 has done, is to take the hypothetical case of "anything goes" that is thought to have existed prior to 1978 (but in fact didn't), and make a County either allow it or pay for it - which is in my humble opinion just wrong.
Measure 37 sold itself as a fix for a little old lady who wanted to create a couple lots off of her larger parcel. What it is doing is much more, much deeper than that.
And again, until the issue of transferability is addressed, we are only creating a worse and worse mess day by day as Measure 37 parcels are created with unsettled rights to build or replace structures. I think Measure 37 is nothing like what the typical voter thought it was.
I therefore conclude, it is time to temporarily suspend Measure 37, figure out fixs and replacements to it, and then remove it from the books.
Feb 4, '07
I say its time for a Boston Tea Party style revolt against the liberal dictators who control our state and our destiny. Quit paying your taxes, make the system come to a grinding halt.