Court rejects Residents’ suit


News staff writer

January 17, 2007

The Hood River Valley Residents Committee lawsuit against the state’s evaluation of Measure 37 claims was shot down in Marion County Circuit Court last week.

Oregonians in Action, a property rights group, said the Jan. 10 ruling correctly interpreted the law it authored. If HRVRC had prevailed, OIA said opponents would have made an end run around the amount of compensation owed to landowners. In addition, they would also have been able to impede the full restoration of development rights.

“If they can drive down the value then they can drive down the use. So this was a big win,” said Ross Day, OIA legal affairs director.

“I think critics of Measure 37 were counting on the court to take the teeth out of the law by basically rewriting it.”

He said Measure 37 grants compensation when a regulation imposed by a government agency devalues property. The monetary amount is tabulated on the use that would have been allowed at the time of acquisition. In lieu of paying recompense, the agency can choose to lift the “offending” restriction and restore the prior zoning.

HRVRC combined suits with farmers in Washington County that accused the state of “failing to do its job.” They argued that public interests were not protected if officials assumed the compensation demands were valid.

The state was challenged to require proof that down zoning had taken place on Measure 37 properties. In fact, the HRVRC case raised a question over whether property values actually increased as a result of land use “safeguards.”

“Measure 37 eliminated the protections I enjoyed under the Bill of Rights. The Residents Committee is considering the possibility of taking legal steps necessary to preserve our ability to pursue the appeal,” said Mike McCarthy, a pear farmer and president of HRVRC.

“We will not actively pursue it pending discussions with all concerned parties in pursuit of legislative action that will make the law more fair and balanced.

“We believe litigation is not the best way to ‘fix’ Measure 37. We are using the tools at hand, but ultimately seek to have our leaders step in and deal with this extreme and unworkable law.”

Day said Measure 37 clearly allows landowners to seek compensation based on today’s market values. He said HRVRC and other opponents wanted loss estimates tied to the year that an “injury” occurred. And relief — in the form of restored rights — given proportionately to the lower dollar amount.

The decision by Judge Don Dickey was cheered by members of the Hood River Agriculture, Forestry and Landowners Association. The legal action filed by HRVRC last fall spurred formation of the new trade association.

“I never thought it had much of a chance because it was a bunch of bunk, to put it politely,” said Bill Bayless, a Dee forester named in the lawsuit.

He said HRVRC’s legal challenge highlights the need for HRAFLA to spend time educating the public. He said opponents of Measure 37 use the methodology behind compensation as a “pave over paradise” scare tactic.

For example, Bayless filed a Measure 37 claim asking for $29,918,655 in compensation. He reached that number by figuring the value of the 332 timbered acres if he and wife, Lavon, could still divide it into 232 lots.

In reality, Bayless, 78, only wants to carve off a few home sites to supplement their retirement income. He said, because of foreign trade laws, it is now impossible to earn a living from sustainable harvests on less than 1,000 acres. But he is denied even minimal development on the property that has been in his family since 1946, and under his ownership since 1962.

Bayless said the assertion of his neighbors who joined the HRVRC suit were “also bunk.” He said their ability to “see the night sky” could never be impeded unless he erected skyscrapers. In addition, he said the claim that water quality would be impaired by development was also wrong since the area is served by the City of Hood River’s meandering main line.

“I think they were really way off base and the court acted appropriately,” said Bayless.

Day said opponents of Measure 37 are now pressuring the Legislature to dismantle the law. However, he said officials are likely to be hesitant about making major changes since 61 percent of voters statewide gave their approval in 2004.

Meanwhile, he said Dickey’s decision set up some parameters about how Measure 37 could be interpreted — and others will follow.

In February, OIA faces off with the Attorney General’s Office in Yamhill County concerning the issue of transferability. Day said the state has taken the stand that restored development rights don’t pass on to a new owner. But OIA argues that property rights have always gone with the land, and not the deed holder.

“The state has just been fantastic about working with me to get this matter before a judge and an answer that we can live with,” said Day.

“I think these cases will narrow the scope of what the Legislature will address.”

HRVRC contends that claims are being processed contrary to the hardships portrayed in TV ads that were used to “sell” Measure 37 to voters. The group said that claims have ended up being filed for everything from gravel pits to large scale subdivisions. And, unless something is done, developers of Measure 37 lands will recoup “windfall profits” that are denied to other property owners.

HRAFLA said the Oregon Supreme Court has upheld the constitutionality of Measure 37 when it comes to fairness. And it is time to address the “inflexibility” of the centralized land use system that stripped away property values to provide neighbors and the public with a better viewscape.

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