Oregon Counties Should Honor Measure 37 Waivers

Oregon Counties Should Honor Measure 37 Waivers
By Margaret Goodwin,

Few people would argue that the state should be allowed to appropriate private property without compensation. But does the state have the right to legislate away the value of your property without compensation? When someone buys land, the purchase price takes into account the potential for development of the land. If land use regulations are later changed in a way that precludes development, the land loses a significant amount of its value. From the perspective of the property owner, this is the same situation as eminent domain. The 5th amendment prohibits the government from taking private property for public use without just compensation. How fine is the line between appropriating private property for public use and appropriating the use of private property for public benefit?

In the 1970s, Oregon enacted broad land use reforms for the purpose of preserving forest and farm lands throughout the state. Over the succeeding decades, it became increasingly clear that those policy changes were causing significant economic injury to those who had purchased property in good faith with the intent of long-term development. When someone purchases property, the land use regulations in effect at the time establish a justifiable reliance on the part of the purchaser that they’ll be able to use the property for any purpose that’s lawful under those regulations. When the rules of the game are changed after the players have bought in, that’s known as bait and switch.

In 2004, Measure 37 was passed to redress these justifiable grievances and ensure that the adversely affected property owners would receive fair compensation for the loss of value incurred by the changes in government policy. As it turned out, the economic impact far exceeded any compensation the state was prepared to make. However, Measure 37 also had a provision that gave the state the option to “grandfather in” existing property owners, granting them a waiver to exempt them from the new zoning laws, and allow them the lawful use of their property under the regulations that were in effect at the time it was purchased. The property value was restored to the property owners, and the state incurred no liability.

Almost immediately, however, there was a backlash from environmental and anti-development interests who had originally pressed for the land use reforms. They drafted up Measure 49 and sold it to the public by painting the property owners as greedy developers who want to pave over our forests and farmlands and turn them into ugly housing developments. In the counties with larger populations, that are already more heavily developed, Measure 49 passed easily. In counties like Jackson and Josephine, where there are more people actually impacted by these Measures, the votes ran overwhelmingly against it. But the more populous counties carried the day and Measure 49 passed. Under Measure 49, the property owners neither receive just compensation, nor are they grandfathered in. Rather, they can apply for permission to build up to 10 houses on their property, but no more, regardless of the extent of the property or what the original zoning allowed.

Now the counties are caught between a rock and a hard place. The state has threatened to sue any county that honors the Measure 37 waivers they issued. The claimants, who have valid waivers, lawfully issued by the counties, will sue the counties if those waivers are not honored. So each county must decide whether to face one lawsuit from the state, or hundreds of lawsuits from the individual Measure 37 claimants whose waivers were granted before Measure 49 was passed. There are over 300 of these in Josephine County, and over 500 in Jackson County. With the loss of the O&C funding, a number of counties are already facing potential bankruptcy. They simply don’t have the resources to take on hundreds of lawsuits, where damages will run in the millions of dollars. — Especially when fairness and justice are on the side of the claimants.

The counties should do the right thing. If the state does sue the counties, even if the state were to win, I would expect the decisions to be overturned on appeal. The United States Constitution supersedes Measure 49, and both the fifth and fourteenth amendments ought to protect the property rights of the claimants from appropriation by the government without due process or just compensation.

For more of Margaret Goodwin’s articles click here

  • rural residentq

    Rep. Ben Cannon explained his vote this way: ” … rights are grounded in allowing ‘us to deliberate over and choose a good life for ourselves.’ Health care is one such right.”

    I’m fine with the idea of expanding access to health care. I’m not against expanding social security to provide a (generally) single-payer approach at the NATIONAL (not the state) level.

    However, aren’t these the same 31 people who voted last spring to virtually abolish property rights in Oregon by slamming Measure 49 down our throats?

    The right to reasonable use of one’s property (and the rights of communities to have sufficient growth and development to create a dynamic, successful local economy) would seem to be a big part of “choosing a good life for ourselves.”

  • mpower

    The first sentence should read… “Few people would argue that the state should NOT be allowed to appropriate private property without compensation.”

    Measure 37 was a rare, simple and just effort to protect private property and our constitutional rights. In contrast, Measure 49 will be remembered as the beginning of the end for rural Oregon as we knew it… M49 will come to be despised by the very people who were fooled into voting for it.

    And yes, valid Measure 37 claims processed before M49 should be honored… otherwise Oregonians will have no choice but to distrust – without exception – their own state government and the ballot measure process. M49 and it’s consequences truly represent a low-water mark for democracy in Oregon.

  • Pat Ryan

    So you’re arguing that the Farm Bureau, which has been one of the most reliable allies of Land Rights advocates, is actually just a bunch of idiots?

    Good luck with that one. It’s pure fratricide for you guys to attack the many thoughtful Rebublicans and independents who chose to support this overwhelmingly popular initiative, as being too dumb to understand what they are voting for.

    But it fits with your general behavior. (It’s just barely possible that intelligent and thoughtful people might disagree with your positions or my positions and not be evil or stupid).

    Way to shrink your base guys!

    Rock on.

  • dean

    It seems like Margaret is trying to rewind the clock and pretend as if M49 did not actually pass. If all the claims made are now honored, then what was the point of M49? Isn’t Margaret advocating that some counties choose to overturn the will of the people? I’m confused.

    • Margaret Goodwin

      Dean, if the counties lawfully issued M37 waivers before M49 was passed, how can the counties that issued them not be legally obligated to honor them?

      If two parties engage in a contractual agreement, one party cannot change the contract later without the consent of the other party. The counties put their full faith and credibility behind the waivers they lawfully issued. It seems heinously wrong of the state to mandate they cannot honor the agreements they lawfully made.

      The fact that the majority voted for M49 doesn’t make it right, or even necessarily legal. The difference between a democracy and a republic is that a democracy is ruled only by the will of the majority. In a republic, the will of the majority is subject to a written Constitution that protects the rights of the individual, even when the individual is in a minority. In a pure democracy, if there are more citizens who do not have a particular interest to protect (e.g., a Measure 37 claim) than who do, the majority can simply vote to toss out the rights of the minority and take whatever they want. In a republic, the purpose of the Constitution is to prevent that. Ultimately, both the 5th and 14th amendments must protect the property rights of the claimants who already received waivers from the counties.

    • rural resident

      Allowing M37 waivers to go into effect does not render M49 pointless. Unfortunately. M49 would still eliminate virtually all future claims that would have been made under 37, or that had been filed but not acted upon.

      Remember Measure 8 back to 1994, which attempted to make the “PERS pickup” illegal and created other mischief intended to harm Oregon public employees who had not retired. M8 was declared unconstitutional because it interfered with contractual agreements and conferred benefits to only one side. Public employees had given up other potential compensation in order to receive the pickup. They relied upon the existence of these agreements. Therefore, the Oregon Supreme Court ruled M8 unconstitutional. That was the correct decision then. Margaret is right about th M37 waivers now for much the same reason.

      I believe that M49 will result in significant economic damage to rural Oregon, should it remain on the books. Even more important, the Dems may come to rue the day they engaged in this little abuse of power and protocol because the process, even more than the product, sets a dangerous precedent that conservatives will no doubt exploit many times at some point in the future.

  • Bob T.

    “I’m confused”

    Finally dean is recognizing his problem. Now to the 12 steps.

  • George Forsman

    Dean. The question that begs to be asked is “what is the cost to the State if M37 claimants end up being paid off in their lawsuits”? The City of Tigard vs. A-boy Electric ought to wake you and others up. For a mere $13,000 piece of land abutting Fanno Creek, it cost the City of Tigard some $2.0 million dollars to settle their lawsuit, using much of the same arguments put forth by the advocates of M49. Using that same ratio, what will it cost the State and the Counties to satisfy their $12.0 billion claims?? Assuming 2.0 million taxpaying Oregonians, it would cost only $100,000 per taxpayer. How many are in your houshold DEAN? Why not pony up your money first rather than making the rest of us pay for your intolerance?

    • dean

      Margaret…I’m totally with you on the need to protect the rights of minorities against the tyrany of majorities. But obviously that arguments cuts in many directions on many issues…i.e. the rights of gay couples to equal treatment.

      I guess we have lawyers and courts to work these things out, so to the extent M37 claimants think they have a case to make, it will all sort itself out. I will encourage my own Clackamas County Commissioners to uphold M49 until the courts rule otherwise.

      George…if anyone has a takings case similar to the Dolan’ so be it. Since the 1920s property rights advocates have claimed that land use regulations that diminish value are unconstitutional, but have never won their case. Dolan did not argue a land use regulation, but the granting of an easement for a trail in exchange for a building permit. M37 made up new rules that had nothing to do with the constitution. It was a statute. M49 changed that statute.

      And Margaret, what were the actual costs to M37 claimants that they would seek to recover from the Counties? If they were high, they can argue vesting no? To argue that a waiver amounted to a contract that has now been breached, not by the Counties but by the state…seems like a very long stretch. But I’m no lawyer, just a confused liberal.

      • RinoWatch

        Liberals are somewhat confused.

        Live your life, stay outta other peoples business, keep your nose clean, obey the law/constitution, you’d be well on your way to alleviating your confusion.

        • dean

          Geesh…you would take all the fun out of my life. I would have to stop working for left wing totalitarian mind and property control over right wing reactionaries. What would I do with all my spare time?

      • Margaret Goodwin

        Dean wrote “I guess we have lawyers and courts to work these things out, so to the extent M37 claimants think they have a case to make, it will all sort itself out

        I have no doubt the courts will sort it out. And there will probably be appeals. And it will probably be very expensive. So the question for the counties is, do they honor the commitments they made to their citizens when they issued the M37 waivers, and face a single lawsuit from the state, or do they obey the state and face hundreds of lawsuits from those who hold lawfully issued waivers upon which the counties have chosen to renege?

        If the state sues a county for doing the right thing, I believe the county will win. Even if the state does win, I beleive it will be overturned on appeal, and the county will ultimately prevail.

        If hundreds of M37 claimants file suits against a county for acting in violation of their constitutionally protected property rights, the county may lose some or all of those cases, and be liable for millions of dollars in damages. The county may also win some or all of the cases, at enormous expense, with absolutely nothing to gain for their trouble. Even so, I expect many of the cases would be overturned on appeal and the county would still be held liable, in addition to the colossal outlay in legal fees.

        If I had to place a bet on the outcome, I’d bet on the Constitution trumping Measure 49. And, if I were a county commissioner, looking out for the best interest of my county, I would do the right thing and face an unjust lawsuit from the state, rather than hundreds of just lawsuits from my constituents whose trust I had betrayed.

        • dean

          Margaret…but we are not talking about “constitutionally protected property rights.” Sure…if a county has violated these, an individual should sue and should win their case. But you are mixing apples and oranges. A waiver from an existing, legal zoning restriction is not constitutionally protected.

          Counties did not “betray” anyone’s trust on this issue. They granted waivers because that is what a new state law (M37) required of them. Now they are compelled to modify or rescind those waivers because the state law was modified by the voters. I am not a lawyer, but seriously doubt there is any constitutional issue here at all. Maybe a property owner can argue a “contract” breach, but since a waiver is probably not a contract, I even doubt that.

          But I suspect neither of us is qualified to offer legal advice to property owners or counties in this case.

          • Margaret Goodwin

            How is it not a betrayal of trust when the county issues you a waiver, formally stating you have a right to develop your property, and then turns around and yanks it away?

            Look at the history here. You buy some property that, according to the law, is developable, and the cost of that property reflects its potential for development. Then the government decides to change the rules, and says tough luck. We just legislated away the value of your land. You can no longer use it for the purpose for which you lawfully purchased it. The land may not be suitable for any other purpose. Now it sits idle, and you still have to pay taxes on it, because it’s still “yours,” even though you can’t use it. And you can’t sell it because nobody else can use it either.

            How is this different from eminent domain? The difference is you get no compensation from the government, *and* you still have to pay taxes on the land. Good deal. For the government. Not so good for you.

            If the government decides to build a freeway where your house is, they are required to compensate you for the loss of your property. However, suppose the government can claim they aren’t really _taking_ your property, just changing the land use regulations. You’re no longer allowed to live there, because the land can now only be used for high speed traffic, but you’re still the legal owner the land, and they still require you to pay property taxes on it. Sweet deal. For the government. Not so much for you.

  • Anonymous

    Do you get grant money?
    Any local government money for anything?

    • dean

      Why do you ask? Do you have an actual name?

  • Marvin McConoughey

    I wonder if I’m the only Oregonian who can no longer make sense of Oregon’s land use laws? I’ve had a college education, a fine career, and done well in personal terms. I even do my own income taxes, and do them well. But life is too short for me to understand Oregon’s land use system, if there is one.

    Whatever the rules are to be, legislators owe it to us ordinary people to make the law understandable so that we don’t spend our lives wondering what the laws mean. Clarity might also have the healing effect of reducing litigation and bitterness. You wanted a special session, legislators, now use it for something productive.

  • Jack Swift

    I personally presented a petition for an Order to our local Board of County Commissioners to the effect that it was the intention of the BoCC in issuing Measure 37 waivers that they would be permanent and legally binding contracts. The petition was well received and is now pending review by County Counsel and public hearing and debate. The legal effect of the Order would be to ratify the waivers issued as binding contracts.

    I brought this forward for a number of reasons. Initially I was present when our County Counsel advised the BoCC that the state had set the County up to be sued. By the claimants if the County did not honor the waivers or by the State if the County did. A matter of pick your poison. His words. He pointed out that this County issued somewhat more than 300 such waivers, a potential of 300 separate litigations.

    This particular County voted 80% against Measure 49 suggesting that implementation of the waivers would be consistent with Goal One of the State’s Comprehensive Land Use Planning program which goes to local citizenry involvement.

    In a neighboring County, lawsuits are already underway over this issue of waivers as contracts among other things.

    It occurred to me that if the County takes the position we have to comply or breach the contract, it is off the hot seat and out of the cross-fire. If the State wants to sue to preclude the County’s honoring the contracts, the County simply lets the claimant fight it out with the State. If the State wins, the County has no obligation to the local citizen and it’s not the County’s fault. If the citizen wins under the Contract Clause of the Constitution, then the County can honor the contract without further ado, which is critical to the continued growth of the County.

    Simply acknowledging these things as contracts converts a no-win situation into a no-lose situation.

    • dean

      Jack…I’m no lawyer but if the county deliberately turns the waivers into contracts, that may be the point where they are opening themselves up to lawsuits all around.

      As I understand it, most M37 claimnants have done little to act on their claims. This means they have not spent much beyond filing fees. Also, most claimnants say they only wanted to build another house, or a few houses, which are allowed under M49. So it seems to me the only beneficiaries of your approach are the larger claims.

      Marvin…Oregon’s land use system is complex because it is so layered, with state and regional governments interacting with couonties and cities. But the underlying zoning is no more complex than anywhere else. In other words, once a community gets through the effort to create a plan, at that point it is only as complex as the local code makes it, just like most other places in the nation.

      • Jack Swift

        Dean: The whole point is that the County is going to be sued either by the State or the claimants. If the County adopts the position of not taking sides, saying simply we will abide by the contracts or by contrary law if it is determined the contracts are invalid, the County cannot lose. The suit with the State will be defended by the claimant, with the County simply signing off on the defense. No expense, no liability.

        Also, the vast majority of our local claimants are not monied developers. They are hard working ranchers, farmers, and land investors who, thanks to Senate Bill 100, have lost their retirement investment. I do not have a dog in the fight. I’ve got my retirement and I can’t subdivide my property anyhow. But I do care about the regulatory theft confronting my fellow citizens.

  • Marvin McConoughey

    Dean, I’ve lived in other states and whatever the presumed simplicity of Oregon’s underlying zoning, the process of getting land use decisions in Oregon is a grotesque nightmare. The time consumption, cost, drama, and doubt is injurious to Oregon, in my non-lawyer view.

    • Jack Swift

      To truly appreciate just how grotesque Oregon land law has become, one needs to understand the traditional underpinnings of our system of real property law.

      In that system, the fundamental indicia of ownership are the right to access and the right to use as one sees fit. The right to sell is part of that right to use.

      Traditionally, the title to the property evidences those rights.

      When, through circumstance, a conflict arises as to a partial right to use by an outsider (say one has allowed a public trail to cross a portion of the land for a period of time and outsiders have come to depend upon that usage) then a servitude accommodating that usage is imposed. What we call an “easement.”

      The essential battle in the Comprehensive Land Use Planning Program vs Measure 37 relates to the right to use. The arbitrary and unilateral imposition of a state easement controlling the use of private property turns the whole system upside down and there is no legal device such as an inverse easement granting the owner the right to use his own land as he sees fit.

      The essence of private ownership of land in Oregon has been converted to communal ownership with all the rights of such ownership in the hands of strangers to the title.

      A very peculiar legal situation indeed.

  • Bob T.

    Do you get grant money?
    Any local government money for anything?
    #7 Anonymous on 2008-02-16 19:43 (Reply)
    Why do you ask? Do you have an actual name?
    #7.1 dean on 2008-02-16 21:22 (Reply)

    Now that’s funny. So exactly what government money do you get?

    • dean

      Bob T…glad I can make you laugh. Why do you want to know?

      Marvin…yes, that was my point. Getting land use decisions made is more complex because of the multi-layered structure.

  • Bob T.

    You’re a dedicated local government activist, like many others around here, and I suspect you get greased for your extensive blogging.
    I also happen to know ho local agencies find ways to deliver money to their helpful groups and individuals. Often by through contracts for providing education materail etc.
    Are you one of them and are you getting any compensation from any government sources?

    • dean

      Bob…okay, that explains why you want to know. The answer is I am a private consultant and part time public university teacher, so yes, part of my income is from local, state and federal agencies, part is from private sector clients, part from publishing, and part from farming. A little of this and a little of that as a friend of mine once put it.

      I’ve never thought of myself as a “dedicated local government activist.” I’m not sure what to make of that. I would describe myself as not all that dedicated to anything to tell the truth. I’m just a dabbler.

      But no…none of my clients are paying me to contribute my wit and wisdom to this or any other site. I do wish it were so. It would be fairly easy money to match wits with you conservatives, though the name calling gets tiresome.

  • Bob T.

    “But no…none of my clients are paying me to contribute my wit and wisdom to this or any other site.”

    How stupid would that be?
    Of course your not paid to do this.
    Like I said above it’s “Often by through contracts for providing education materail etc.” or other tasks.

    or in your case “consulting work” ?
    Why the elusiveness in answering?
    What agencies are you consulting for? And/or getting paid from?

    • dean

      Oh boy….paranoia shows itself. Sorry Bob, that is none of your business. The last thing I need is you or some other whacko pestering my clients about your theories.

      My consulting work does not include providing “education material” except as it pertains to the projects I work on, none of which involve this or any other blog. Get a life okay? Deal with the arguments and issues I present or choose to ignore them. Either way I don’t care.

      Buh bye now.