Measure 37—Voters’ Patience Running Thin


On November 2, 2004 Measure 37 was passed by a landslide margin of 61% to 39%. After decades of oppressive government land use policies, and the disallowance of a similar bill (Measure 7), passed by a broad majority in 2000, Oregon voters finally took back their property rights””or so they thought.

As a quick review, Measure 37 was the citizens’ Initiative that created new statutes relating to land use. The Measure 37 statutes are now codified in ORS 197.352.

Measure 37 provided that where government zoning laws or other land use regulations deprived private landowners of their rights to partition, subdivide, build homes or otherwise use their lands without paying just compensation, the landowners would regain certain rights. The landowners were given two years to file a claim for compensation with the government for the loss of the use of the land. The government then had the choice to either restore to the landowners the same rights they had when they acquired their property or pay the landowners compensation for depriving them of those rights.

The road for implementing Measure 37 has not been smooth. Implementation was delayed first by a constitutional challenge. Months elapsed then a Marion County judge determined Oregon voters had overstepped their authority, so the judge ruled Measure 37 unconstitutional. Her decision was appealed directly to the Oregon Supreme Court, which reversed the lower court’s decision and reinstated the will of the majority who voted to pass Measure 37.

In the meantime the two year clock for filing Measure 37 claims continued ticking. Some counties worked diligently to process Measure 37 claims, but many citizens with valid Measure 37 claims have been confronted with multiple costs, procedural delays and other roadblocks to stop or slow the measure’s implementation.

The 2005 Legislative Session had the opportunity to accept the will of the people and devise rational procedures to process the many claims. Due to philosophical and political gridlock, the Legislature failed in its assignment and adjourned without a single solution to the many questions surrounding how best to implement the new land use law.

Now, two more years have passed and millions of dollars have been spent jumping thorough procedural hoops by landowners who are being opposed by their own government at every turn. These Oregon citizens continue to suffer at the hands of government officials who still cannot believe the vast majority of Oregon voters really meant what they shouted by their votes for Measures 7 and again for Measure 37.

According to a special PSU study entitled, “Measure 37: Database Development and Analysis Project,” as of January 18, 2007, there were 6,350 Measure 37 claims filed in Oregon. An interesting PowerPoint presentation showing a breakdown of size, location and purpose of the claims can be seen by clicking here. It is interesting to note that the vast majority of claims are just folks who want to sell-off a few lots or provide building sites for family members. The PSU study indicates nearly 3 of 4 claims are seeking to create 9 or less lots. The analysis goes on to indicate that 2 of 3 claims seeking approval to build dwellings are for 5 or fewer homes. It would have made sense to bifurcate the claims processing so that large development projects were closely evaluated, while honoring the intention of most Oregon voters by fast-tracking the many small claims and enabling them to be processed quickly and efficiently. Unfortunately, that has not occurred.

Last night I sat in the Capitol and watched a portion of the Joint Committee on Land Use Fairness. The Land Use Fairness committee was recently established to conduct hearing on the Governor’s Senate Bill 505. To be put it bluntly, Senate Bill 505 is a thinly veiled attempt to rob Measure 37 claimants of the months and money they have spent working to process their claims through the maze of Oregon bureaucracy that has so effectively hindered them.

S.B. 505 has two parts””a carrot and a stick. The carrot is an opportunity for claimants willing to permanently sell the rights granted them under Measure 37 for an opportunity to build a single home on their tract of land, regardless of whether the size of the tract is one or a thousand acres. The stick is a provision which freezes until June 30, 2007 all pending claims that did not have building permits by the end of last December.

As the Bend Bulletin Editorial stated concerning S. B. 505:

“Senate Bill 505 is less a bid to fix measure 37 than a threat to property owners who’d like to use the measure in ways the governor dislikes. It is also a bribe of sorts for those who’d like to use it in ways he likes.” The editorial goes on to say,

“This bill says in essence: Whatever your legitimate claim might be, build one expedited house on your land, or square off with a legislature that will do whatever it can to thwart your plans, even if that means using a bogus pretext to call a “time out. The Governor’s betting people will conclude that a house in hand is worth a dozen in theory.”

At last night’s hearing on S.B. 505, dozens of citizens lined up to express their frustration. The citizens were angry. Repeatedly they expressed their outrage at being categorized by the Governor as greedy developers merely because they wanted to exercise the rights restored to them by Measure 37.

A Newberg attorney who has practiced land use law for 25 years testified that S.B. 505 was being sold as “No harm, No foul,” but was really just the old “Bait and Switch.” He said he has 45 clients, some of whom have invested more than $200,000 on development costs and will watch it all be flushed away by further delays, if S.B. 505 becomes law. He said S.B. 505’s offer to build a single dwelling was intended to placate claimants who already have approvals for 10 or 20 units by enabling them to get an immediate permit to build a single dwelling.

Although proponents of the bill’s “Measure 37 claims freeze” say the waiver of deadlines are necessary so the State can catch up on processing their pile of M-37 claims, one citizen referred to S.B. 505 as a mere ploy. He felt the bill is just more “smoke and mirrors,” because it does not delay the pending claims, it suspends them. In any event, he said S.B. 505 will not provide the State enough time to process claims,its hidden agenda is to undermine them.

A lady spoke for her 83 year old mother, who wants to partition off some acreage to enable her to pay her bills and provide building lots for her kids. She emphatically told the committee, her mother was “not a greedy developer, like the Governor [implies].”

During the 2003 Legislative session I sponsored House Bill 3315. It would have allowed a single home to be built by folks who had the right to build when they bought their properties, but lost that right by land use law changes. The bill was passed by the House and died in the Senate. In a conversation with the Governor’s land use representative and the lobbyist for 1000 Friends of Oregon, Representative Bill Garrard and I told them the Governor’s refusal to let our bill become law was a huge mistake and would result in another Measure 7 type Initiative. Their response was our modest bill “went too far,” and there would not be another Measure 7. They said Oregon voters did not know what they were doing when they voted for Measure 7, and would never make that mistake again. After Measure 37 swept over Oregon, the 1000 Friend’s lobbyist told me I had been right and that they should have passed our bill.

Now we are at another crossroads. I may be only a small town, country lawyer, but I live in the heartland of Oregon and I know my people. Just like when I was talking to the lobbyist in 2003, I have another message to deliver. The Governor and Legislature will get only one more chance to effectively, efficiently and immediately implement the spirit and intent of Measure 37. By doing so, we can make moderate and necessary changes to Oregon’s land use system without throwing the baby out with the bath. We can enable a freedom loving people to use and enjoy their own property, without destroying the Oregon we all love.

Senate Bill 505 should be amended, before it is too late. In its present form, S.B. 505 jerks the rug out from under the feet of thousands Oregon voters who have done everything possible to comply with the complicated and contradictory Measure 37 claims procedures. To treat families who want to subdivide their properties into less than 10 units the same as some large commercial developer may be the final slap in the face of Oregon voters. We voted for Measure 7 and the State did nothing. We voted for Measure 37 and the State continues to give nothing but delay, excuses and a failure to act. If a third Initiative is necessary, Oregon’s statewide land use system will be dismantled and returned to local control. We have the votes. We have the will. Our patience is running thin.

Sincerely,

Dennis Richardson
State Representative

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Posted by at 06:01 | Posted in Measure 37 | 12 Comments |Email This Post Email This Post |Print This Post Print This Post
  • Jerry

    Well said Dennis. Why are the other politicos not as outraged as you are? What is wrong with these people? It is no wonder people are upset with the state politicos. Most of them are downright scary in their willingness to break the law. I am ashamed of them.
    Please do something to stop this madness.
    Oregon government is broken. Plain and simple.

  • Historian

    Rep. Richardson,

    Your outrage and defense of voters’ intent seems relative to whether or not you support the ballot measure in question.

    For instance, you’ve supported efforts to overturn the will of the voters in the cases of:

    1. Banning the use of dogs to hunt bears and cougars (passed twice)
    2. Raising and the minimum wage and indexing it to the CPI
    3. Parental notification on abortion (1990 and 2006)
    4. Taking voter mandated TURA and TPEP funds and using them for purposes other than tobacco use prevention
    5. Making funding the state fair the responsibility of lottery dollars which voters mandated for parks and salmon restoration, not the state fair

    Of course, on this website, these outrages were never discussed. But, when its a Republican or conservative issue, the melodrama starts.

    Much the same as “local control”, “will of the voters” is an arguement used far too often by hypocritical elected officials, in both parties.

  • Anonymous

    “…subdivide their properties into less than 10 units…”

    That’s exactly the problem with M37. It was meant for people who want to live on their land, like Gene and Barbara Prete, not to turn farmers into subdivision developers.

  • Jerry

    Historian has a good point. When an initiative is passed it should be followed. Every time. No exceptions. Then fix it at the ballot box if it is broken.
    Fools all who try to change what the people have voted on. Fools.

  • George Forsman

    Well said, Rep. Richardson, as a Measure 37 claimant, whose property rights were taken away by the State of Oregon in 1974, without compensation as required by SB 100, I, too, resent the insinuation that I am greedy.
    After purchasing our 60 acre farm in 1966, Clackamas County zoned in 4 sections (2,260 acres) of land just North-East of Canby to RA1, which allowed a house on an acre of land. Prior to buying the land, my neighbors were selling lots of 1-5 acres for about $1,000 per acre. Most buyers were interested in 5 acre lots; however, smaller lots were all sold prior to 1974. I figured at the time of purcahase to sell my property into 2-3 acre lots by 1990.
    Of course, this was blocked by SB100. Then in 1993, I had to sell some 70 acres as LCDC was changing the rules, so that I could not build a home on a lot of record. Was this fair?
    Now thanks to all the impaction zoning rules ensacted by the cities, I am once again able to sell off i-acre lots on my 20 acre farm. The reason why my property is so deireable is that no-one else can buy a one acre lot. By the way my land is not prime farm land; but rather Class III soil which is just a hair above swamp land. And that is the entire problem with bureacratic planning. We were sold a bill og goods by the 1000 “Fiends of Oregon in 1973, We were supposed to protect some one million acres of “prime” farm land (as reported in 1969) which has since been reduced to less than 500,000 acres. And all who had restrctions uimpossed were to be compensated for their loss in value for which they have yet rto receive. Was this fair and legal?
    So now they are using “open space” and “park” designations to remove all property rights from owners without compensation. I ask is this fair? And is it fair for a city to designate one side of an existing road “Industrial” and the other side as Exclusive Farm Use, when both farms have identical soils and the price difference is some $300,000 per acre difference because of arbitrary rules of Urban Growth Boundaries? Where is God’s name is this fair???
    So what do law abiding peole to do; when our Government Leaderds are bought and sold by the likes of corrupt organziations suchas The 1000 “Fiends” of Oregon?

  • What the voters wanted

    A number of Measure 37 opponents are now proclaiming that the outcome of M37 is not what the voters intended. With due respect to those commentators, none of them have spoken with me. I suspect that most have not spoken to even a dozen Oregonians who helped pass Measure 37.

    Accusations of voter ignorance may have limited merit. Few of us consult platoons of lawyers to help predict all possible initiative outcomes. But imperfect voter knowledge surely is not limited to only those of us who voted for Measure 37. Great efforts were made by pro and con Measure 37 groups. Voters had excellent information resources available, regardless of which way they voted. Perhaps a bit of sour grapes is at work with disgruntled enemies of Measure 37.

    • Bob Jones

      I totally agree! This is just a back door ploy to negate the votes of thousands of oregon citizens. Where does it stop? I think we should all remember these actions during our next election! Democrat, Repulican or any party. We as citizens (the people) need to stop these government EMPLOYEES from doing what they want to working for us and doing what we want.

      • Brian

        Elected officials set policy and priorties. Bureaucrats just do the work, as the elected officials tell them to. Elected officials also hire and fire department heards, who are at-will employees. change the elected officials, change the priorities

  • Jerry

    • Over 60% of people voted for M-37 knowing it would cost money
    • They trusted their elected officials to protect our Land Use Laws
    • Little direction was given on how this was to be done
    • The State and Counties have reacted by permitting the use previously denied

    • There are other solutions:

    A – The Government could decide to come up with a formula for the dollar
    amount of compensation for lands they do not want to see developed
    1. Claimant’s amount minus the development costs
    2. Arrange to pay with an additional, one time, added state tax for taxpayers to pay this amount – we voted for this measure with this possibility in mind
    B – The Government could enter into negotiations with the claimant(s)
    1. Allowing people to build a home on land that was buildable when
    they bought it
    2. Allowing people to partition or subdivide their property as they were able to when they purchased it in the following manner:
    a) adjacent to cities – OK – required to annex to city so that it shows up as normal urban growth
    b) non-resource land (AR or similar) – OK- was planned for at creation of zone – has moved from 1 acre to 1½ acres to the present 2 acres – all are doable and acceptable
    c) resource land – ( EFU,FT,TC or similar) 5 acre minimum – won’t change the character of the zone much:
    1. EFU- the addition of mini-farms and/or rural living – both highly desired and needed – should not be
    seen as a detraction of the countryside by most
    2. FT – already looks like this
    2. TC – development is mostly already limited by natural factors and access – slope and remoteness
    3. All other uses should be denied – mining, gravel pits, shopping
    centers, etc. – as too intrusive – this should be about homes

    There might be some specific cases that would present as being unusual, such as large holdings by Corporations and/or Timber Companies, but the Courts or the Legislature could probably deal with them.

    I know that this is not a perfect solution, but it is a start. The voters have decided that the Government of our State acted unfairly to a limited number of our people and we need to make it right. No solution is perfect, but allowing the forces of development to once again, post 1972 land use reform, run rampant with no control is not what I and many others would like to see.

    I also do not think it is fair to slow down the process, as the Governor wishes to, without protecting the rights of the claimants who have acted in good faith, spent the time and money required to file the forms, and may have problems in waiting for the legislators to sort it out. A lot of them are older and may have an event that invalidates their claim. For the most part these are people who had their rights taken away. The very least we can do is to rectify the issue of the claim becoming invalid if the claimant dies. If the Legislature is going to slow down the process, they should grant the continuing validity of a valid claim for the heirs of the claimant even if the claimant dies. It seems that the issue of inheritance, by whatever means – Probate, Trust, Revocable Trust, etc. – is still being decided by the courts.

    Thank you for your time in reading this.

    Jerry

  • Brian

    Like a Jerry (not the one in #7) said in another topic, if you don’t like the law, do something to change it. well, we are. we don’t like it, so we’re changing it.

  • Layne Barlow

    Strange that none of you bothered to mention the Constitutional prohibition against taking personal property for public use without just compensation — it’s been there since the original Oregonians ratified it in 1857.
    Don’t feel bad. The vast majority of those who’ve sworn to uphold and defend this among other inconvenient Constitutional protections are either in ignorance or defiance of this prohibition.
    I know this firsthand. I’m a guy with an injunction from the Oregon State Bar for exercising what the Bill of Rights says I get to do in six different sections. They used one single, vague statute, which according to them and the courts (all Bar members, too), beats out all six sections.
    And so on.
    Point: the Constitution has to matter to someone. If it doesn’t matter to us, the people, and if we don’t hold the public authorities accountable, then who’s going to take care of business here?

  • Marvin McConoughey

    The public approval of Measure 37 stems from the extraordinary powerlessness and helplessness of the individual when faced with the power of modern government. When that government power is directed at one’s own real estate, the fear level skyrockets. People who were presumably elected to represent the individual, now appear as terrifying monsters with the power to destroy dreams and plans and hopes. In this atmosphere of ultimate unknowingness, no one can make long term property investment plans because a well-intentioned government employee has the power to overturn the meaning of private property ownership. Perhaps some of this real human fear has become understood by Governor Kulongoski because he has apparently modified his early pressure to change the law the implements Measure 37.

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