Bad reaction to Governor’s M37 stunt

Governor Kulongoski announced this week a plan to issue a hold on most Measure 37 claims. This hold targets the larger claims which represents nearly 85% of all cases. The reaction was picked up statewide, here is a Medford Mail Tribune quote:

” ‘A bunch of hooey,’ said Dave Hunnicutt, who heads Oregonians in Action, the property rights group that sponsored the initiative passed by 61 percent of voters in 2004. Hunnicutt said the proposal to create an “express line” for single-family sites while suspending until June 30 requests for larger developments penalizes people who may want to do a little more. As an example, Hunnicutt said, a farmer might want to provide home sites for two or more children on his property.”

The O’Donnel & Clark Law Firm, which represents over three dozen Measure 37 clients, issued a press release. The firm states that a recent Appeals Court decision affirmed that Measure 37 claims are vested property rights. The press release stated:

“Said O’Donnell, a longtime land use lawyer and Democrat ‘The folks in Salem have gotten a bad case of elitism, they don’t understand that the people have repeatedly been heard on this and are insistent that some fairness for the owners of property be brought into the land use system. It is incredible that politicians think they have the authority to ‘suspend’ constitutional rights.”

Another O’Donnell & Clark release here.

Obviously the anit-37 folks tried to sue Measure 37 away, and that didn’t work. Now they have to deal with the cases that have built up, and the public gets punished for the politicians’ mistake. Governor Kulongoski complained that something had to be done because the measure was so poorly written. The simple measure was written just fine. The only poor performance in the entire Measure 37 affair is how the Governor and politicians are failing to implement it.

To top it all off, Portland professor and blogger Jack Bodanski made this great joke“

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Posted by at 08:47 | Posted in Measure 37 | 11 Comments |Email This Post Email This Post |Print This Post Print This Post
  • Captain_Anon

    i think the bill is just as it says, a compromise. something needs to be done to give the state, counties and cities time to process the claims they received. half the claims filed came in the final month, and probably a majority of those the last few days before the deadline. because of the complexity of the majority of the claims, there is a huge backlog of work to be done. some jurisdictions are putting off doing work on regular permits and legislative work to put all the man power into the claims, but even that isnt’ enough to get through the claims within the 180-days.

    this bill isn’t about stopping the process. it’s about pausing it so that the back up can get cleaned up, the M37 claims that the public was sold on – people getting thier retirement home out in the country on land they bought years ago – being processed, and giving the legislature time to pony up, grow some rocks, and do the hard work. making changes that actually work. deciding the blurry issues. developing consistency from county to county and city to city.

    this is a controversial subject and not everyone is going to be happy with the results because it is so polarizing. but the folks in salem need to step up to the plate and give the state a fix that’s workable. I think that’s what everyone wants.

    • Jay Bozievich

      Dear Captain, (Note he already gives himself a title of authority over others)

      There are three simple things to determine in all M37 claims:

      1. Ownership prior to the land use law or regulation requested to be waived.

      2. Would granting the waiver cause a public health hazard.

      3. Is it in the public interest to not grant the waiver. (critical habitat preservation, open space, whatever)

      Determination of ownership is fairly simple and would weed out any eronious claims. If the answer to the second and third questions are no, then grant the waiver and be done with it. Most of the claims fall into this catagory.

      The Cities, Counties and State could then concentrate on the claims that may either create a public health hazard or may have a public interest in not granting them. That way only those in question would have to go through the difficult process of determining value of the regulatory taking.

      Note that if the agency determines there is a public interest but cannot figure out how to pay for the taking, then just waive the regulation.

      Finally, I just love how you show your contempt for the voting public by claiming they were “sold on” people getting retirement homes. Wasn’t there a large campaign against M37? Did the voters not understand that some farmers and forrest land owners would use the law to develop land? Give me a break.

      Also, how can a measure that had the support of over 60% of the voters be “polarizing”.

      There is nothing to fix because it ain’t broke! If the elitist, “smart growth” land use regulators (Are you one?) would just stop dragging their feet and process the claims as required under the law, then there would be no backlog or controversy.

  • Steven Plunk

    For years people throughout the state recognized the unfairness of regulatory takings in Oregon. The Governor and legislature failed to take any action on the problem resulting in the citizens taking matters into their own hands through the initiative process.

    Now the Governor sees urgency in “fixing” a problem that is much less of a problem than the one he ignored. I’d say he’s a little late.

    Slowing this process down is violating the law. Time is money and justice delayed is justice denied.

    The state government of Oregon has had decades to fix a land use system that people on both side of the issue refer to as broken. I suggest they sit back and let matters take their course and live with the consequences (if any really) of not taking action on land use sooner.

    • Captain_Anon

      a big piece missing from this whole debate is the role neighbors have played in it. when planning began, there was lots of flexability. but neighbors started to sue governments for not being strict on administering the law. so hearings officers, LUBA and the courts (including supreme court) began to making rulings that the government was bound to that forced the process to take longer, findings to be more complicated, and all the I’s dotted and t’s crossed. neighbors appealing and suing has had a significant impact on how the government has been forced to apply the rules.

  • Anonymous

    A right delayed is a right denied
    — Martin Luther King

  • Jerry

    This Capt. Anon guy is completely off his rocker. We don’t need “time” to do anything, nor do we need to slow down. The bill passed, it is law, and it needs to be obeyed. Plain and simple. Without exception. The politicos in Salem wonder why we don’t trust them and why we have such low opinions of them. Stupid things like this are why.
    Maybe next the good Capt. has, say, a refund coming from the state we should postpone that refund for a year or two to “examine careully” all the ramifications of that refund. Just to make sure.
    Sheesh – these big goverment, trust everyone people are driving me nuts.
    What the “governor” is doing is WRONG – that much is clear.

    • Captain_Anon

      Hi Jerry,

      It’s no secret you don’t like me. It’s also no secret that you aren’t reasonable in your approach to the issues on these boards. All you simply do is name call and vent doom and gloom like a grizzled old man.

      Reality is what it is. If you have 7000 claims, 16 staff members (only after the gov increased funding for staff), and only 6 months to process those claims, it becomes impossible. even the easy ones – meaning those that are CLEARLY valid and those that are CLEARLY not valid. a report had to be issued by the state for each one.

      let’s just do the simple math. let’s say each report takes 2 hours to complete. there are 2080 working hours in a year. minus 10 days vacation (80 hours), minus let’s say 5 days sick (40 hours), minus holidays (another roughly 80 hours). That leaves only 1880 hours in the work YEAR. notice that is longer than the 180 day clock. that amounts to 940 cases you could do at 2 hours each, doing NOTHING but the starr reports. IF you had no meetings or other tasks and projects to attend to.

      but let’s also look at it this way. 16 staff members, 7000 claims. that comes to 437.5 cases per staffer. at 2 hours just to write up a staff report you’ve got 875 hours dumped in. say you discuss the case with each claimant an hour. now youre’ up to 1312.5 hours. that doesn’t take into noticing requirements, public comments, staff meetings, other tasks.

      Also understand, too, a very large number of the claims deal with difficult legal questions. and attorneys get involved. both the states AND the claimants. letters back and forth etc. its a ton of time. its not even reasonable to expect them to complete all those cases in one year, let alone 6 months.

      the same for other counties and cities. now, some can do it because they received only a few claims. but there are many counties out there that received claims numbering in the hundreds.

      you can say “it needs to be obeyed’ regarding the 180-day clock all you want. but there isn’t enough time to be able to process them all in the time allocated. AND, take note, the Court of Appeals ruled on Wednesday that the state must hold meaningful HEARINGS for all claims. yeah, that’s right, the courts told the state just issuing a report wasn’t good enough. They have to hold formal hearings. add on another 4 hours per case.

      and for fun, check out the list of laqsuits the state is involved with at this website:
      https://www.doj.state.or.us/hot_topics/measure37litigation.shtml – not exactly quick and easy.

      you and jay and those who think this is just cut and dry and quick and easy really need to come to reality. It’s just not easy. even if everyone wanted it to be, the sheer volume and complexity of the issues combined with the time restraints prevents it.

      • Steven Plunk

        Captain,

        I’m not familiar with the numbers you have used regarding claims and the staff members availble to process claims. I assume that the 16 staffers you mention are DLCD since you said the Governor authorized additional funding for them.

        As I understand M37 the cities and counties are responsible for processing claims not the DLCD. How do we reconcile the fact that the cities and counties are the processors of claims yet a court requires the state to hold hearings? If then the state is out of the loop in most cases and the cities and counties are responsible don’t they have the personel to complete the work in the time frame allowed?

        I agree the tone of the conversation here wrong. These are genuine questions on my part as I am no expert on M37. No expert but still familiar with what it is all about and somewhat understanding of land use process in Oregon. Thanks for your remarks.

        • Captain_Anon

          I had read last summer that the state had to hire 16 additional staff to process the claims. before, they had 1 or 2. similarly, washington county had to hire i think 5 additional staff solely to process them.

          each city and county must process the claims, true. but the state must process a seperate claim as well. so when a land owner files a claim, they have to have the state waive rules as well. so they see every single claim. the reason is that most local land use laws are based on either oregon revised statutes, oregon administrative rules or the 19 land use goals. so for someone to get waiver to build on forest land, they must get a waiver from the state to the state goals, and a waiver from the county or city from thier local code.

          I thought it was the department of administrative services who processed them, but i did a search and found this site:
          https://www.oregon.gov/LCD/MEASURE37/summaries_of_claims.shtml#Summaries_of_Claims_Filed_in_the_State

          it has some eye popping numbers.
          As of November 17, 2006, 3,182 claims had been filed.
          (1,264 prior to October 25, 2005 and 1,918 received since March 13, 2006). but here is the real eye opener: *The Oregon Department of Administrative Services (DAS) received at least 3,309 Measure 37 claims between Nov. 17 and Dec. 4.* the number of claims doubled in two weeks. I’m not sure how ANYONE – those who support or oppose Measure 37 – can possible fathom the workers getting through all those claims in 180 days. that amounts to 207 cases per staffer (at 16 staff). if each takes just ONE hour to review to see if it has all the needed information, that’s 207 hours. in 6 months there are 1040 working hours. subtract 40 hours vacation, 20 hours holiday, 20 hours sick time (just halving what a entry worker gets) and you’re left with 904 hours in 6 months. that only leaves 4.36 hours to be spent on each case, *if* all you did was measure 37 claims. and as i stated in a previous posting, the oregon court of appeals has ruled that each case the state has must go to a public hearing. it’s impossible to do. plain and simple.

          and you’re right. there is a problem with both the state and local jurisdictions processing the claims. the state may deny one and the local authority approve it, or vice versa. or both deny and then the claimant sues. OR, the city/county or state take over 180-days to get a decision out and the lawyers for the claimant sue. which as we all know, costs all of us tax payers.

          i appreciate your tone in this debate. its good to have someone be reasonable and ask genuine questions.

          • Steven Plunk

            Captain,

            I now understand a little more about the logic of “postponing” these claims. The review that has to be conducted by the impacted agencies could take a good amount of time and overwhelm those agencies.

            My sympathies do not lie with the state government. While your position is based in logic I see the opposite position being just as reasonable and logical.

            It is the nature of Bureaucracies to complicate administrative processes over time. Land use in Oregon has been progressively complicated since it’s inception. The promises of a fair process became subordinate over the years resulting in enough frustration for the passage of M37. In a couple of ways the state is now reaping what it has sown.

            The impatience with an ever more complicated system led to M37 and that same complicated system is now creating a burden on the bureaucrats rather than the public. If they had not woven such a complicated web of rules and regulations this would be much simpler. But the web was meant to be a hindrance to the public, not those in the government so now they are pleading for relief. Many of us out here have no sympathy. Certainly no more sympathy than those same bureaucrats had for us when we encountered a system with no room for common sense and plenty of room for administrative abuse.

            So they now should live with the mess they made rather than seek the special dispensations they never gave to citizens. “It’s the law” they would say, “there’s nothing we can do”. Well now the law is requiring them to do something and they should do it.

  • Caper

    Have we all forgotten that this measure was passed by voters TWWWWWICE! I guess the rule is to pass a law twice to get it to become law, but pass it three times for the law to be enforced. Pass it four times for the politicians to leave it alone.

    The pols look quite snobbish on this attack.

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