Staking claims: sorting out a new meaning


News staff writer

November 11, 2006

The fate of Oregon’s centralized land-use system — the first in the nation — became uncertain when Measure 37 was approved by a supermajority of voters in 2004.

Oregonians in Action, a property rights group that authored the new law, said 61 percent of the state’s electorate wanted to “restore fairness” to land-use planning. OIA believed that, for the past 33 years, governments were wielding regulatory power to take away up to 95 percent of the use and value of private property without compensation.

Ross Day, OIA’s legal affairs director, said Measure 37 was intended to stop “select landowners from being forced to bear the sole cost for zoning that benefited the general public.”

“Not one word of Measure 37 prevents local and state governments from enacting land-use regulations. They just have to consider the impact on the pocketbooks of private property owners when they take an action,” said Day.

1000 Friends of Oregon, a conservation group, believes the law creates “inequities” in the land-use system. One of the primary arguments waged by the chief opponents to Measure 37 is that protected resource lands will be converted into sprawling subdivisions. They also protest that no compensation is available for neighbors who are adversely affected by development that results from a successful claim.

“It’s really thrown things up in the air and these are things that need to be resolved one way or the other. This is a very unstable situation,” said Eric Stachon, Friends’ communication director.

Day said Measure 37 simply restored Constitutional property rights. The law, which went into effect on Dec. 2, 2004, requires government agencies to compensate a landowner for a regulation that devalues the value of property by taking away its use.

In lieu of that payment, the regulatory body can restore the zoning in place when the current owner acquired the land. The amount of compensation, unlike the use, can be calculated on past history. For example, if the property has been in the same family for four generations, the value is based on what could have been done with the parcel at the time it was first purchased.

However, Measure 37 requires that any allowed use comply with current public health and safety standards. So, even though no minimum lot size had been established when a property was bought, the site must still adhere to modern standards, such as those ensuring an adequate septic drainfield.

Measure 37 also prohibits landowners from filing a claim for regulations brought by a required federal law, such as the Endangered Species Act.

If a government entity fails to act on a claim within 180 days after it is filed, or the landowner is dissatisfied with a government decision, the case can be taken to court and attorney fees possibly recovered.

The law encourages claims from past government actions to be filed by Dec. 2, or within two years of the imposition of a new regulation. However, after the 2006 deadline, a landowner can still apply for a use and then, if denied, gain two more years before the claim has to be filed.

The “poster-child” for Measure 37 was Dorothy English, a now 93-year-old widow, who has owned 20 acres on a hillside overlooking Portland since 1953.

English had been fighting Multnomah County planners for three decades to get out from under 61 regulations imposed on her property. Her goal was to subdivide the acreage to provide a home site for her grandson and finance her retirement. She called the model zoning rules adopted by Oregon in 1973 a “land stealing” campaign.

Stachon admits that passage of Measure 37 has indicated that Oregon could use more flexibility in its uniform approach to land use. 1000 Friends supports the three-year review of the regulatory system now underway by the legislatively-mandated Big Look Task Force.

However, Stachon believes the majority of Oregonians are backing away from Measure 37. The results of a poll posted on the 1000 Friends Web site appear to back up that assertion. The survey of 405 voters statewide was conducted by Greenberg Quinlan Rosner Research, a firm that describes itself as “committed to progressive goals, ideas and leaders.”

The Greenberg poll shows that only 29 percent of voters would now support Measure 37, with 48 percent saying they would vote no. The remaining 22 percent said they were unsure how they would now vote on the initiative.

“I think a lot of what you are now seeing around the state is ‘buyer’s remorse,’” said Stachon. “A lot of people thought they were voting to allow someone to build a house on their land. What they are now seeing is 850 acres of forest land divided up into one acre home sites, numerous claims for sizeable subdivisions and even a gravel pit.”

Dave Hunnicutt, OIA executive director, countered the Greenberg poll by saying the questions were engineered to gain the desired negative result. He joins Day in the belief that Oregon voters have shown their seriousness about changing the way land-use rules are enacted by the prior passage of Measure 7.

That constitutional amendment — almost identical to Measure 37— was approved by 54 percent of voters statewide in 2000. However, it was thrown out by the Oregon Supreme Court on a technicality. So, OIA went back to the drawing board and wrote Measure 37 as a state law because that allowed for greater flexibility in language — making it less of a legal target for opponents.

“Voters have clearly said twice now that they want Oregon’s land use system to change,” said Day. “But anytime you make as big a change as Measure 37 you are going to have some people and governments doing anything they can to stop it.”

1000 Friends did attempt to get Measure 37 invalidated by the courts in early 2005. The group filed a lawsuit on behalf of several farm bureaus and plaintiffs. They asserted that the law created a privileged class of citizens and, therefore, violated basic tenants of fairness under the state Constitution.

The plaintiffs contended the lawsuit was necessary to protect a land-use system that had preserved natural resources for more than 30 years. 1000 Friends claimed that Oregon’s tourism base had increased substantially because of the scenic beauty brought by development restrictions.

“Oregon is not Oregon by mistake, but because of careful stewardship,” said Bob Stacey, 1000 Friends executive director, when the case began.

OIA said the argument waged by 1000 Friends would ultimately undermine the state’s entire land-use system, such as taking away tax deferrals for the owners of farm and forest lands.

Plus, citizens in rural areas subject to more land-use regulations could argue against the greater use given to urban residents. OIA said farmers could also contest having to earn $80,000 per year in order to build a house on their agriculture land when residential property owners were not held to that same standard.

In fact, Day said that Measure 37 restored fairness since the rights of a rural property owner could not be “stripped away” to provide scenic views for an urban visitor.

OIA’s arguments won the day in the Oregon Supreme Court and Measure 37 became the law of the land in March of 2006.

Day said Measure 37 does not require citizens to pay a fee to file a claim, although most individuals have chosen to do so. He said each government was allowed by the law to create it own process for handling these claims.

However, he said it has been “interesting” to watch many local and state governments set up procedural roadblocks — including exorbitant filing fees — to thwart Measure 37 claims. Day said officials excuse their actions by saying the law is too “vague and confusing” to interpret in any other way.

“You’ve got counties out there trying very hard to figure out ways around Measure 37. Where does it say that every interpretation has to go against the measure?” asked Day. “It was after all, voted into law by the people that these agencies are supposed to serve.”

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