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By RAELYNN RICARTE
News staff writer
November 15, 2006
“Hood River County Planning Director
Mike Benedict describes handling Measure 37 claims as a “highly
complex process that is constantly – almost daily – evolving.”
Measure 37 was approved by a 61 percent supermajority of voters
statewide in November 2004. The law requires government agencies to
compensate a landowner for a regulation that devalues private property
by taking away its use.
In lieu of that payment, the regulatory body can restore the zoning
that was in place when the current owner acquired the land.
Recently, the State Department of Justice rendered an opinion on
behalf of the Department of Land Conservation and Development that
could limit the amount of Measure 37 construction.
The agency contends that public water providers are held to an Oregon
land-use rule that prohibits the extension of water lines into rural
areas if that encourages growth. The state also prohibits sewer lines
from being installed outside of a city’s urban growth boundary for the
same reason. “The owner of the property is going to have to figure out
their own way of providing those services,” said Richard Whitman,
legal counsel for DLCD.
Measure 37 requires that claimants adhere to modern health and safety
standards. So any type of community water/sewer system would have to
comply with existing sanitation regulations. If development is reliant
upon installation of a septic tank, the number of home sites could be
further reduced. In areas with poorer soils, the drainfield would end
up covering a much larger section of the property.
Benedict said several key legal questions awaiting a court decision
could also affect Measure 37 rights.
“There isn’t a day that goes by where we aren’t making a judgment call
on something,” he said.
For example, legal arguments are being waged by Measure 37 opponents
that development netted with a successful claim should not transfer to
a new owner. Another major point of contention centers on ownership.
Oregon courts will determine if the original deed holder retains usage
rights when the property is incorporated, or temporarily placed in the
hands of a family member.
Benedict said there are other “ambiguities” in processing claims. For
example, he said there was a two-year period between the approval of
Senate Bill 100 in 1973, which set out land-use concepts, and getting
the regulations down on paper.
Since the county didn’t incorporate the state’s mandates into its
comprehensive land use plan until 1984, Benedict said sometimes local
and state zoning differed during that era.
To cover the legal bases, Benedict said landowners are advised that
any regulation waived by the county must be matched by the state
before building plans can be approved.
He said hours are spent by staffers to research deeds and determine
what the allowable use of the property was at the time of purchase or
inheritance. He said the process becomes even more difficult when a
single claim involves multiple parcels that were purchased at
different times.
The chain of ownership also has to be checked out since the county
recognizes the zoning in place when a corporation was formed. That
means a property owner may not regain the use allowed when the land
was acquired, even if he/she retains an interest in the company.
If the owner turned the deed over to another person – as in protecting
the asset in a bankruptcy case – the county factors the development
right from the date the deed was regained.
“It’s been tough to make a call in some of these areas. But, within
the next five years, we should have some answers from the courts and a
more solid idea of how Measure 37 is working,” said Benedict. |
