Clarification bills die in legislature

June 25, 2005

Two bills to clarify the voter intent behind passage of Measure 37 have died in state legislative committees.

Rep. Patti Smith, R-Corbett, said both House Bill 3120 and Senate Bill 1037 became too controversial to gain approval. She believes the measures were flawed because they strayed away from the intent of the new law. Since the legislature is expected to be dismissed on July 1, Smith does not see any hope of either proposal being revived.

“I think this is a good thing since we can’t reach a decision on how you clarify 37. If we can’t get agreement on it then we should take our time and address it later,” she said.

In January Smith was hopeful that elected officials could set policies that would respect the will of voters.

Measure 37 passed by almost a 61 percent margin statewide last November. The law went into effect on Dec. 2 and allows landowners to ask for compensation when regulations have devalued property by taking away the use allowed at the time of acquisition. In lieu of payment, the government agency is given the option to remove the restriction and restore the use.

After watching political wrangling at the capital, Smith became convinced that consensus could not be reached. She said the viewpoints of the Democratic-controlled Senate and the Republican-held House were just too polarized.

Sen. Rick Metsger, D-Mt. Hood, predicted prior to the start of the biennium session that Measure 37 issues were likely to be resolved in court. He was never optimistic that the legislature could find the middle ground to set policy for the law.

“It’s going to start being decided by the courts and the public will react one way or the other and that’s when we’ll know what changes to deal with,” said Metsger.

Measure 37 has been legally challenged on constitutional grounds by 1000 Friends of Oregon, five farm families and four county farm bureaus. The opponents contend the statute violates government power to protect the health and welfare of Oregonians. They also argue that Measure 37 illegally creates a privileged class of landowners that are immune from the law. Oregonians in Action, authors of the law, contends that Measure 37 restores a basic constitutional right. OIA said voters have simply asked government entities to pay compensation when the use of private property is taken away for the public good.

Meanwhile, Hood River County continues to navigate its way through the uncharted waters for processing Measure 37 claims. The planning department has received 26 claims, mostly regarding agricultural lands, since December. To date, regulations on five claims have been waived and one claim rejected because the property lies within the federally-protected Columbia River Gorge National Scenic Area. The county has 180 days to render a decision on a claim or the landowner can take his/her case into court and seek to recoup attorney fees.

“We delayed as long as we could hoping we’d get some guidance from the legislature. But it looks like the framework is going to get set up in the courts,” said Dave Meriwether, county administrator.

When it became clear that state officials were probably not going to enact guidelines for Measure 37 claims, the county acted to avoid liability. Upon the advice of legal counsel Will Carey, the wording on the official findings of fact was altered.

The county formerly told claimants that development rights granted by Measure 37 would not be transferable unless the state changed its stand. Officials were following the lead of Gov. Ted Kulongoski and Attorney General Hardy Meyers, who were both of the opinion that rights were nontransferable.

The county did not want to get caught up in lawsuits over the unresolved issue so a decision was made to issue a neutral advisory. Claimants are now told that, while the development right may be granted at the local level, the state may prohibit it from being passed on to a new owner.

Another change in the county findings regards the review process for subdivision applications that are submitted regarding Measure 37 lands. Instead of requiring those proposals to be processed under current rules, the county will scrutinize them based on the zoning in place at the time of purchase. However, the landowner will still be required to adhere to all modern public health and safety standards.

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