Most Legislator’s list of key issues for this session included “Fix Measure 37.” In early February I wrote a newsletter entitled, Measure 37″”Voters’ Patience Running Thin. It contains a review of Measure 37’s history and a discussion regarding Senate Bill 505, which was a flawed bill that could not garner enough votes to get passed out of committee.
Like the story of the trolls where each one gets worse, Senate and House leadership now have proposed House Bill 3540A. This bill was passed out of committee on April 26th on a party-line vote.
Since Measure 37 passed in every Oregon county except one, you would think implementing the will of the people would be a bipartisan issue. It is bipartisan everywhere except here in the Capitol. Here in the heart of Salem the Capitol Mall has been described as “one square mile surrounded by reality.” In this surreal place there are many Legislators who remain convinced the voters were deceived by campaign rhetoric and duped into passing first Measure 7 and then, after it was invalidated due to a technicality, Measure 37. As a result, instead of bipartisan agreement on how to implement a two page ballot measure, we are now presented with House Bill 3540A.
House Bill 3540A is 22 pages of complex legalese that neuters the intent and thwarts the will of the many Oregon voters who passed Measure 37. For instance,
1. It eliminates all Measure 37 claims except a constricted number of single -family residential claims, cutting out all landowners who had industrial or commercial land claims;
2. It focuses on “compensation,” then makes the process to qualify so expensive and complicated that few will be able to comply with the requirements and perfect their claims; and
3. It subtly removes from Oregon counties the right for local decision making jurisdiction. The Bill states,
“If the department [DLCD] determines that the only land use regulations that restrict the claimant’s use of the property are regulations that were enacted by the county, the department shall transfer the claim to the county”¦.”
(HB 3540A, page 11; underlining added for emphasis)
Implicit in that statement is the directive that where there exists any state regulations that restrict the use of the claimant’s property, DLCD will retain jurisdiction in the State over those claims–which will be the vast majority.
The subtlety of HB 3540A continues. When I read legislative bills I am on guard for “the Hook.” The Hook is the discrete clause added or removed or the slight word change that has major and often unnoticed consequences. An example of a “Hook” in HB 3540A is found in Section 7. Section 7 governs those Measure 37 properties outside the Urban Growth Boundary (UGB), that could possibly qualify for construction of a maximum of three dwellings””including existing dwellings””regardless of the size of the acreage. Notwithstanding pages of verbiage describing how a claimant with acreage outside the UGB can qualify for a maximum of three lots or dwellings, most of those Measure 37 claimants will get nothing. Their claims will be eviscerated by the following clause:
“(8) Relief may not be granted under this section if the highest and best use of the property was not residential use at the time the land use regulation was enacted.” (HB 3540A page 10, lines 7 and 8 )
Essentially, subparagraph (8) states that if there was some possible use for a landowner’s acreage that would have made that landowner’s property worth more that it was worth as a residence at the time land use law changes deprived the landowner from being able to build a dwelling, then that landowner will have no Measure 37 rights whatsoever. After reading subparagraph (8), I called a former County Attorney who is an expert in land use issues. I asked the following question:
“If a rural landowner needed to know what options were available to meet the definition of “˜highest and best non-residential use’ for his rural acreage, what uses would be on the list?” Off the top of his head he gave me a few alternatives:
– Golf course
– Aggregate mine (sand and gravel)
– Rural commercial gas station, convenience store, etc.
– Wine Tasting Room (under certain circumstances)
– Church (If more than 3 miles beyond UGB)
– Recreational Park (fishing ponds, hunting, mountain biking)
– Ecological Park
– Animal Reserve
– Dog kennel
– Shooting Range
– Privately Owned Campground (under certain circumstances)
– Landing Strip for private aircraft
– Horse Stables
– Domestic Plant Nursery
Is the political game of HB 3540A becoming obvious? The Governor and his Legislative captains did not support Measure 37, did not vote for Measure 37, and since Measure 37 was passed in 2004 have delayed its implementation. Now public pressure and claims processing deadlines require our state leaders to take action and implement Measure 37. Their response is further obfuscation by presenting House Bill 3540A, a bill that will be sold as a solution, while delivering nothing but more expense, delay and broken promises to Oregon citizens. There are thousands of Oregon landowners, many of whom are quite elderly, who have jumped through every hoop, paid every fee and waited 2 Â½ years for the promised land use relief for which the vast majority of Oregonians voted. Fortunately, House Bill 3540A has a troubled road ahead of it before it can come to a House floor vote. If it passes, it is to be referred to the voters for our approval. It is a bad bill that shows little respect for the citizens it is supposed to serve. Rather than requiring Oregonians to spend the time and effort to defeat HB 3540A at the ballot box, our State leaders should set aside their partisan politics and work to craft a meaningful solution and truly “Fix Measure 37″. After all, a promise is a promise.