Ruling sparks battle over property rights


News staff writer

July 16, 2005

Property rights are at the forefront of both state and federal government debates — and Hood River County legislators have chimed in.

On Capital Hill, U.S. Rep. Greg Walden, R-Ore., is working to stop agencies from using economic development as a means to wrest control of land from unwilling sellers.

He co-sponsored House Resolution 3135 after expressing “strong disapproval” with a recent decision by the Supreme Court.

Walden believes the bedrock principle of property rights is undermined by the June 23 ruling on eminent domain.

The higher court has decreed that governments are allowed to force people off their land in favor of private development that promises higher taxes.

“Oregonians have repeatedly made clear their support for private property rights, most recently with the passage of Measure 37. Therefore, the Supreme Court’s decision that diminishes our right to our own property is a travesty in my opinion. I think the Congress will — and should — take action to change the law and fix the problem,” said Walden.

Rep. Patti Smith, R-Corbett, is equally opposed to a late hour effort by the Oregon Senate to draw perimeters around Measure 37. She joins Oregonians in Action (OIA), authors of the new law, in the belief that a revised version of Senate Bill 1037 circumvents the will of voters.

Smith said Measure 37 passed by almost a 61 percent margin statewide last November and, under the proposed legislation, people in some coastal communities are now denied the right to even file a claim. In addition, she said landowners can no longer seek reimbursement of attorney fees in court if they the decision of a local jurisdiction is untimely or deemed unfair.

Under Measure 37, a landowner can request compensation for regulations that devalued his/her property by taking away the use allowed at the time of acquisition. In lieu of payment, the agency has the option to remove the restriction.

Once a claim has been filed, the government entity has 180 days to render a decision that meets approval of the claimant, or he/she can take the matter to court and recoup attorney fees. If the case is lost, the landowner cannot be held responsible for the agency costs to defend its action.

“People want fairness in land-use planning and they want their property rights protected. I think the voters made that very clear and the House needs to uphold the people on this critical issue,” said Smith.

Her counterpart, Sen. Rick Metsger, D-Mt. Hood, voted in favor of the bill. However, he remains convinced that the real questions raised by Measure 37 have to be addressed by the courts. Shortly after the November passage of Measure 37, Metsger predicted that the legislature, with a Democratically controlled Senate and Republicans holding the House, was unlikely to reach agreement on significant issues.

For example, controversy has sparked about whether the rights restored by a Measure 37 claim pass on to a new owner. And if the statute, which went into effect on Dec. 2, supercedes existing state land-use rules and guidelines.

Metsger said SB 1037 does not address many of the most hotly debated interpretations of the law. However, he believes the legislation does provide a uniform framework for the filing of claims — and that is better than nothing. Although the Senate made an exception to Measure 37 in order to protect the viewscapes along public beaches, Metsger said, in exchange, a house would be allowed without a claim on some farm land if tracts of land are consolidated.

He is not optimistic that SB 1037 will survive scrutiny by the State and Federal Affairs Committee in the House. And, even if it is approved, he said the bill does not resolve the outstanding issues.

“It’s my story, and I’m sticking to it, that Measure 37 is just going to be defined by the courts,” said Metsger.

Walden’s Private Property Rights Protection Act is now before the Judicial Committee and he is pushing for its passage. He and committee chair Rep. James Sensenbrenner, R-Wisc., believe HR 3135 will restore constitutional protection for land owners.

Walden contends that use of eminent domain should be reserved for large-scale public projects, such as the building of railroads and highways.

“This resolution says that we are not going to stand for this ruling and are going to move legislatively to really restore property rights,” he said.

Meanwhile, the Oregon House began deliberating on SB 1037 yesterday. Dave Hunnicutt, OIA director, plans to raise strong objections to the legislation. He said most Measure 37 claimants are elderly people who have held their property for years and are on a fixed income. He said if the provisions of the bill stand as-is, land-use planning in the state will be back to “business as usual.” And, once again, property owners will have to wage expensive legal battles to reclaim their lost rights. The one “saving grace” of SB 1037, said Hunnicutt, is that the processing fees for claims are capped at $1,000 — far below the costs imposed by some jurisdictions.

“Almost all of it (SB 1037) needs to be amended and I think the House will take a run at it. But the Senate won’t agree and it’ll just die,” he said.

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