Even though the legality of Measure 37 has been upheld by the Oregon Supreme Court, dozens of other legal questions remain unanswered.
Hood River County Planning Director Mike Benedict is tracking arguments being waged in 31 lawsuits related to Measure 37 claims. However, his staffers are moving ahead on three of these development applications brought forward by local landowners.
“Every case is going to be different so this is a completely new learning curve,” said Benedict.
Measure 37 passed in November of 2004 by a 61 percent margin statewide. The new law, which was approved by 54 percent of local voters, requires governments to compensate landowners when a regulation downzones property by removing its use. In lieu of payment, the agency can choose to lift the “offending” restriction.
Although a Marion County Court ruled last fall that Measure 37 was unconstitutional, the state’s highest court overturned that decision in March.
Benedict said it could be a long time before the courts determine if the rights restored by a Measure 37 claim can transfer to a new owner. Or whether the qualifying date of a claim begins at the time the property was purchased or should be set back by a subsequent incorporation.
Meanwhile, the 180-day clock continues to tick on the county’s legal requirement to process a development application. Benedict said Measure 37 issues are very complex to navigate and he does not believe that doubling the development fees last fall even begins to cover the actual cost of staff time.
He said in addition to the usual planning procedures, his department now has to research and assemble the historical county ordinances and state statutes that apply to each application. They also have to decide if any federal law needs to be factored in, since mandates to protect air, water, and endangered species are not covered by Measure 37.
Benedict said his office now has to determine which ordinances/laws involve public health, safety and nuisance issues that are also exempt from Measure 37 claims.
“We intend to apply all current regulations that don’t prohibit a use and reduce the market value of a property,” he said.
He anticipates that it could take three or four months to process a Measure 37 development request instead of just a matter of several weeks.
“We don’t want to be in a business that causes people to do unnecessary work. But, at the same time, there is some rule of law as well,” he said.
Benedict said another complexity arising at the local level is that many land-use rules being challenged by Measure 37 claimants have been required by the state. So, all local land-use applications must have restrictions lifted by the Department of Land Conservation and Development.
And those waivers must dovetail with the county’s interpretation of a Measure 37 claim or a conflict could arise.
The bottom line, said Benedict, is that a number of “judgment calls” are going to have to be made on many issues related to the new law.
For example, the possibility exists that a property owner could gain a Measure 37 waiver and then sell a majority interest in the parcel to a second party.
Benedict said resolution will have to be reached about whether the entire parcel is eligible for development when the original claimant holds only a 1 percent interest in the land.
In addition, situations already exist with some Measure 37 claims where a public roadway or sewer line was put in place after the property was purchased. Benedict is unsure if land divisions should meet the minimum lot size based on the septic systems in place at the time of acquisition, or the smaller lot sizes allowed with sewer access.
He wonders if parcels should have the standard 50 feet of frontage on a roadway if the pavement was not in place at the time ownership began.
“If there’s no case law by the time these decisions need to be made then the county commission will have to make the call,” said Benedict.
Even though a Measure 37 claim successfully gained a waiver of some regulation, he said a development application could still be denied.
According to Benedict, a request involving a conditional use permit gives a lot of deference to the comments of neighbors — who might be strongly opposed.
He said local officials also need to decide how to proceed in many other scenarios.
For example, a claimant regains the right to build a home on a five-acre parcel with no further specifics.
And then applies to construct the residence in a riparian zone on the basis that site is worth more because of its proximity to the water.
“Do we only have our glasses on from a certain date or are we allowed to factor in everything we’ve learned since that time on farming practices and the impact upon neighbors?” he asked.
Benedict said there will undoubtedly be “ill will” created by some of the local decisions made about Measure 37 developments.
However, he said every attempt is being made to save landowners from unnecessary bureaucratic hoops.
For example, if a person owns five acres of land zoned for exclusive farm use but can’t meet the $80,000 income test for a dwelling, he will not make that individual apply for that use first.
Instead, Benedict will recommend that he/she submit a Measure 37 claim instead.
Nor does Benedict believe that every potential Measure 37 claimant should first go through the arduous process of attempting to gain an exception to a state land-use rule.
“Regardless of all the unresolved issues over Measure 37, our staff will do everything possible to alleviate any hardship faced by a landowner going through this process,” Benedict said.