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.