County’s business-as-usual tactic pays off with M-37 ruling


News staff writer

February 25, 2006

Hood River County had prepared ahead for Tuesday’s state Supreme Court ruling that Measure 37 was constitutional.

In October, county attorney Will Carey advised government leaders not to stop “business as usual” until ordered by a court. His recommendation followed the decision by Marion County Circuit Court Judge Mary James that Measure 37 was illegal.

“What I do not want to have happen is to not process a claim and have charges brought against us,” said Carey last fall.

“I’m sure that people who are more seasoned than I am have never seen this in Oregon law. It’s a new adventure for all of us and we’re going to be plowing some new ground,” he continued.

Dave Meriwether, county administrator, said because the county board followed Carey’s advice, 44 out of the 64 claims submitted to date have been processed.

He said the county is relieved to finally have uncertainty eliminated about the validity of staff time spent on Measure 37 issues.

“At least we have that court question answered and know what the lay of the land is as far as this law is concerned,” said Meriwether.

Following James’ ruling, the four counties involved in the lawsuit and the state were forced to stop processing claims until that decision had either been upheld or reversed.

Since Hood River County was not a party in the challenge against Measure 37 that was initiated by 1000 Friends of Oregon, Carey did not believe James’ ruling was applicable. Other counties then voluntarily quit reviewing claims after being threatened with “cease and desist” lawsuits by Measure 37 opponents.

However, Carey wanted the County Commission to keep processing Measure 37 claims. He was concerned that the 180-day clock to make a decision on claims without incurring court costs was still ticking.

In fact, Oregonians in Action, authors of the new law, concur with his stand. Ross Day, director of OIA legal affairs, believes the six-month deadline applies to all agencies except those forced to stop work by James’ decision.

Meriwether said other court cases are pending to determine issues related to Measure 37, such as whether restored development rights transfer from one owner to another. However, he said at least the basic question about the law’s legality has been resolved.

On Tuesday, the Supreme Court reversed the controversial decision rendered by James last fall. She had determined that Measure 37 stripped the Legislature of its power, gave longtime landowners an unfair advantage and failed to give their neighbors a voice in the process.

Measure 37 passed by a 61 percent margin statewide in 2004, and 54 percent in Hood River County. The voter-approved law requires government to pay private landowners when their property value is lowered by imposition of a new regulation. In lieu of restoring the development right that the owner had at the time of acquisition, the agency can pay compensation for the lost value.

Day was pleased with Tuesday’s court decision – although he admitted to being “somewhat” worried about the outcome of the appeal case. He believes the will of the people can now be upheld and fairness restored to Oregon’s land-use system.

According to Day, for more than 30 years, property holders have had their development rights removed “for the public good” without being compensated as required by the constitution.

“We had law, fact and common sense on our side but we were afraid the court was going to say ‘we don’t like this policy’ and look for a reason to throw it out,” he said.

Bob Stacey, executive director of 1000 Friends, was disappointed by the high court’s decision. He contends that Measure 37 unfairly creates two classes of Oregon landowners and gives special privileges to one.

“The court held that Measure 37 is legal. The court did not rule that it is fair,” said Stacey. “It is not fair to put a gravel pit next to someone’s home and that is what Measure 37 allows. The government needs to find a way to pay those people who experienced a loss without sacrificing our quality of life and hurting neighbors.”

Day said 1000 Friends and other opponents Measure 3 opponents need to quit looking for ways to circumvent the law.

He said Oregonians have made it clear that that they want change in the land-use system and all parties need to work together on a proactive solution.

“Everyone needs to step back and let the measure work. I don’t think that most of the folks who are filing claims want to pave over Oregon, they just want their property rights restored,” he said.

Day is advising landowners to resubmit claims to the state while lower courts answer other Measure 37 questions. Meriwether said most of the claims submitted by county landowners dealt with a zoning restriction mandated by the state. Therefore, he said any development proposals will require a waiver of regulations at that level.

Hood River County does expect more Measure 37 landowners to submit development applications within the next few months. To date, only one proposal has been brought before planners. Joe and Nadine Holt had their development rights restored in 2005 by a Measure 37 claim.

They are now seeking to divide their 18.69 acres along Highway 35 into 10 lots as allowed at the time of purchase.

Meanwhile, OIA is gearing up to have another major Measure 37 question answered. Day said his legal brief is due in the Court of Appeals by March 26 that outlines arguments against a Hood River County court decision.

In April of 2005, Circuit Court Judge John Kelly shot down Measure 37’s application in the Columbia River Gorge National Scenic Area.

He upheld the Columbia River Gorge Commission’s challenge that the will of state voters could not force the removal of regulations set up by federal decree in 1986.

“I hope everyone understands that it is not the function of this court to have the final answer on this issue. The purpose of this hearing is really to create a record for a heaving by a higher court,” said Kelly.

OIA believes arguments in the case involving Hood River landowner Stephen Struck will take place by early fall. He is seeking to divide 6.75 Scenic Area acres on Morton Road into three residential lots.

Day contends that the Gorge Commission is a state agency because it is jointly funded by Oregon and Washington, which also provide oversight.

He said the management plan the bistate agency crafted has far exceeded the guidelines listed in the Scenic Act.

Therefore he said the regulations did not qualify for the exception in Measure 37 for regulations to enact required federal laws, such as the Clean Air Act and the Endangered Species Act.

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