1. What happened regarding
the Judge's Opinion in Marion County?
The Oregon Supreme Court reversed and remanded the Marion County
Circuit Court decision (Judge James's) in whole and found Measure 37 to
be constitutional. Measure 37 was again the "law of the land"
effective March 13, 2006.
2. When did Ballot Measure 37 Go
Into Effect?
December 2nd, 2004.
Article IV, Section 1(4)(d) of the Oregon Constitution states that an
initiative or referendum petition becomes effective 30 days after the
date on which the measure is enacted by voters.
3. Where do I file my Measure 37
Claim?
It depends on what law you are challenging. If you are challenging a
local ordinance, then you should file your claim with the local
government responsible for enacting or enforcing the ordinance. We
also believe that Measure 37 claimants who are challenging local
ordinances should also file a Measure 37 claim with the State of
Oregon (see below and Question 10).
If you are challenging a state law or a state regulation, you should
file your claim with the State of Oregon (see address below).
Because of Oregon’s unique and complex planning system, the only one
of its kind (for good reason) in the United States, there will be
many situations in which both state and local land use regulations
take away the rights you had to use your land when you purchased or
inherited it. For example, most county land use regulations are the
result of statutes and administrative rules passed by the state
legislature and state agencies. Property owners are thus at the
mercy of both state and local governments.
To be safe, we recommend filing a claim with both the local
government responsible for enacting or enforcing the land use
regulation, and the State of Oregon. It may be that the land use
regulation you are challenging is unique to your city or county, and
is not a requirement of state law, or it may be that the land use
regulation you are challenging is a matter of state law, and not
part of your local regulations. But in many cases, property owners
cannot be certain, and thus the state and local government will need
to determine which of them is ultimately responsible for the
challenged land use regulations, not you.
Claims must be submitted on a State of Oregon Measure 37 Claim Form
by personal delivery, private courier, or certified or registered
mail to:
DAS - State Services Division
Risk Management - Measure 37 Unit
1225 Ferry Street SE, U160
Salem, OR 97301-4292
Telephone: (503) 373-7475
Claims shall not be submitted by facsimile or electronically.
Additional information for filing a claim with the State
of Oregon can be found
HERE.
4. How long do I have to make my Measure 37 Claim?
It depends on the nature of the regulation giving rise to
the Measure 37 claim:
If the Measure 37 Claim is based on a regulation enacted or enforced
prior to the effective date of Measure 37:
– You have until December 2nd, 2006, or
– Two years after the date the government applies or enforces a land use
regulation as an approval criteria to an application you submit, or
denies a use based on a regulation enacted after the current owner
acquired the property, whichever is later.
If the Measure 37 Claim is based on a regulation enacted or enforced
after the effective date of Measure 37:
– Two years after the regulation was enacted, or
– Two years after the date the government applies or enforces a land use
regulation as an approval criteria to an application you submit,
whichever is later.
5. Is Ballot Measure 37 being challenged
in court?
Yes, there are several active cases in Oregon. Two of the more
important ones are noted below:
Circuit Court Matters -
Mathis v. DLCD, Yamhill County Circuit
Court No. CV060308
Oregon Supreme Court -
Columbia River Gorge Commission, et al. v. Hood River Co.,
et al.
Oregon Supreme Court No. SC S054689
Oregon Court of Appeals No. CA A129652
Hood River Co. No. 050051
CC The Oregonians In Action Legal Center is
representing Stephen Struck and Paul Mansur in this challenge brought by
the Columbia River Gorge Commission. Mssrs. Struck and Mansur have owned
property located within the Columbia River Gorge Scenic Area since
before the creation of the Gorge Commission, and they would like to be
able to modestly subdivide their property. Of course, at the time they
acquired their property they could do so, now they cannot.
Both of these property owners filed Measure 37 claims with their
respective counties, and it is expected that among the regulations the
counties will waive are regulations promulgated under the demands of the
Gorge Commission.
The Gorge Commission filed a declaratory judgment action, that asked the
circuit court to make a determination whether the Gorge Commission is
subject to the protections contained in Ballot Measure 37. Because the
counties’ decisions on the applications were due in a short period of
time, the parties agreed to an expedited briefing and hearing schedule
in order to resolve this issue as quickly as possible.
The Legal Center took the position that the Gorge Commission’s rules, to
the extent the rules exceed the requirements of federal law, are subject
to Ballot Measure’s 37's protections. Unsurprisingly, the Gorge
Commission thought otherwise. Both the Friends of the Columbia River and
State of Oregon have intervened on the side of the Plaintiff.
A Summary Judgment hearing occurred on June 1st, 2005 and the court
ruled for the plaintiffs. The Court then gave defendants until June
15th, 2005 to submit supplemental information to the record and/or file
a Motion for Reconsideration. Both motions were duly submitted and the
Court stated that a final decision would be made by June 20th, 2005. On
June 29th, 2005, a Response to Defendants Motion for Reconsideration was
filed by the Friends of the Columbia River Gorge on behalf of all
plaintiffs seeking to dismiss the points raised in the Legal Center’s
Motion for Reconsideration. The Legal Center filed a Reply Brief on June
30th, 2005, pointing out the errors of the plaintiff’s response.
The Hood River Circuit Court found for the Columbia River Gorge
Commission on July 21, 2005. We filed a Notice of Appeal with Oregon
Court of Appeals on August 24, 2005. All parties to this matter
petitioned the Court of Appeals to hold the matter in abeyance pending
the Macpherson v. DAS case now in the Oregon Supreme Court. However, the
Court denied that request and we filed our Opening Brief on March 26,
2006. The CRGC and state of Oregon filed their Response Briefs on May
11th, 2006 and our Reply Brief was filed on July 6th, 2006. Currently no
date has been set for Oral Argument.
UPDATE FOR ORAL ARGUMENT & WRIT FOR REVIEW IN ORSC... 6. What is a “waiver”?
Immediately after the passage of Measure 37 opponents of the measure
immediately began scheming ways to undermine your vote. Rather than
accurately describe the rights restored under Measure 37, government
officials, government lawyers, and anti-property rights advocates
immediately began using the term “waiver”, as a derogatory reference to
the action taken by the state or local government to restore your
rights.
Nowhere in the measure is the term “waiver” found. In fact, Measure 37
allows local governments (and the state government) to “modify, remove
or not apply” a land use regulation. The term “waiver” implies that a
property owner is being allowed to do something that would otherwise be
against the law. Of course, Measure 37 is not about property owners
“getting away with something”, it is about restoring legal rights taken
from honest Oregonians.
Use of the term “waiver” by opponents of the measure is intended to cast
a shadow on Measure 37 claimants by placing the measure in a bad light
and misrepresenting the purpose behind Measure 37. Don’t be fooled by
the use of this term. While the use of the term “waiver” has become
accepted in Measure 37 vernacular, we do not believe such a description
is in any way accurate.
7. Is a government’s decision under
Measure 37 to modify, remove or not apply a regulation (i.e. “a waiver”)
transferrable to a subsequent purchaser of the subject property.
Yes.
It has been said that one’s rights in one’s property is analogous to a
bundle of sticks. Each stick represents a different “right” or “use”
that, when bundled, composes all the rights one has with her ownership
of the property. Among the sticks in the bundle are the ability to use
property, to live on your property, and the ability to sell your
property.
Opponents of Measure 37 have quickly fabricated the idea that Measure 37
“waivers” are not “transferrable”. This new political theory is referred
to as “transferability” in political circles and does not accurately
reflect the express language – and intent – of the voters in Oregon on
November 2nd, 2005.
Measure 37 requires a property owner to be compensated for the loss of
market value of the property as a result of a land use regulation,
otherwise the government must remove, modify or not apply the offending
regulation. Market value entails two important factors: the ability to
put the property to a particular use, and the ability to sell the
property based upon that particular use. In other words, the ability to
use one’s property and transfer that use has a direct effect on the
market value of the property.
8. What laws and regulations does Ballot
Measure 37 apply to?
Ballot Measure 37 applies to land use regulations. A land use
regulation is any local government zoning ordinance, land division
ordinance, or similar general ordinance establishing standards for
implementing a comprehensive plan. ORS 197.015(11).
Ballot Measure 37 also includes the following within the definition of
"land use regulation":
• Any statute regulating the use of land or any interest therein;
• Administrative rules and goals of the Land Conservation and
Development Commission;
• Local government comprehensive plans, zoning ordinances, land division
ordinances, and transportation ordinances;
• Metropolitan service district (e.g. Metro) regional framework plans,
functional plans, planning goals and objectives; and
• Statutes and administrative rules regulating farming and forest
practices.
Most state and local officials will work hard to carry out the will of
the voters regarding Measure 37. But some state and local officials may
attempt to avoid Measure 37's protections by misrepresenting these
exemptions to deny Measure 37 claims, such as asserting that offending
regulations are need to protect health or safety.
The chief petitioners, anticipating such action, wrote in the Voter’s
Pamphlet:
"It is not our intention that Ballot Measure 37 be interpreted in such a
way as to allow statutes, regulations, goals, ordinances or whatever
other means of regulation currently defined in statute, regulation, case
law etc. as a land use regulation to be bootstrapped into the definition
of building codes, public health and safety codes, sanitation codes, or
public welfare codes, by the courts.
In other words, there currently exists a body of law in Oregon which
defines what constitutes regulation of land use. It is those regulations
that are subject to the provisions of Ballot Measure 37. The state
government and/or local governments should not be allowed to rename a
land use regulation simply to avoid the protections of Ballot Measure
37.
9. What laws, regulations and ordinances
does Ballot Measure 37 not apply to?
Ballot Measure 37 specifically exempts statutes, administrative rules
and local regulations that are designed to protect the public’s health
and safety, such as fire codes, building codes, health codes, sanitation
codes, solid wastes or hazardous waste regulations and/or codes,
pollution control regulations, and traffic safety regulations.
Measure 37 does not apply to state or local land use regulations that
restrict or prohibit activities that were commonly and historically
recognized as public nuisances.
Measure 37 does not apply to state and local land use regulations that
are required to be adopted in order to comply with federal law. Some
state and local government officials may try to extend the reach of this
exemption by claiming that they are adopting land use regulations
because "the feds made them do it." But in most instances, the federal
government leaves land use planning and regulation to state and local
governments, such that the times when federal law truly mandates the
adoption of a state or local land use law are not common.
Measure 37 does not apply to land use regulations enacted before your
property was purchased by you or a family member who purchased it before
you, whichever occurred first.
Finally, Measure 37 does not apply to laws restricting or prohibiting
the use of property for the purpose of selling pornography or performing
nude dancing. This restriction, however, only takes effect if the Oregon
Supreme Court determines that state and local governments have the
authority to adopt land use regulations specifically targeting these
types of establishments, or a majority of Oregon voters approve an
amendment to the Oregon Constitution allowing these types of
restrictions. Currently, such restrictions are unconstitutional, and
Measure 37 cannot and does not make any attempt to change that.
10. Why is there an exemption for laws
restricting or prohibiting the use of property for selling
pornography or performing nude dancing?
The drafters of Measure 37 and Oregonians In Action take no position
on social issues, including pornography. While we realize that many
people have strong feelings on these issues, they are simply not
within the scope of our mission.
But in order to defeat laws they disagree with, opponents of Measure
37 and other property rights measures, often resort to tactics that
have no relation to their actual concerns. For example, property
rights opponents defeated a takings initiative in the State of
Washington by abandoning their "gloom and doom, sky is falling"
rhetoric and instead arguing that voters would be forced to
compensate pornographers if the Washington law was adopted. The
addition of the "pornography" exemption was necessary to stop
Measure 37 opponents from making that same frivolous, baseless
argument against Measure 37.
11. I heard that there are local
government laws and state laws that affect the use and enjoyment of my
property. Because it is likely that both the state’s laws and my local
government’s laws have taken the value of my property, do I need to file
my Measure 37 claim with the state and the local government?
Yes. If you live within the limits of a city, you will need to file
your Measure 37 claim with the city. If you live outside a city’s
limits, you will need to file your claim with the county.
Unfortunately, because of our over-regulatory land-use system, often
there are both state and local laws that affect the use and enjoyment of
your property and give rise to Measure 37 claims. When that occurs, it
is not always clear who is responsible for the land use regulations that
have taken away your property rights. Sometimes the local government is
enforcing its own law that is not required by the state. Sometimes the
local government has adopted an ordinance because it was ordered to do
so by the state. Sometimes both state and local government laws operate
independently of each other, and both reduce the use and enjoyment of
your property.
Because it is often not clear whether state or local government is
ultimately responsible for adopting the land use regulations that have
taken the value of your property, we suggest that you err on the side of
caution and file claims with both the state and your local government.
12. Local governments and the state have
adopted procedures for processing Measure 37 claims, do I have to follow
those procedures?
No. And Yes. Although Measure 37 allows governments to adopt
procedures, there is no requirement that a person filing a Measure 37
claim follow those procedures.
What do you mean by “no”?
The purpose of subsection (7) of Measure 37 was to avoid the
circumstance where a person sues the government under subsection (6) of
Measure 37 and the government claims that the person cannot file a claim
until the property owner completes the government’s process. This is
called a "ripeness" argument and is the main argument governments have
been using for years to avoid paying compensation to property owners.
This provision was also necessary because after the passage of Ballot
Measure 7 in 2000, some local governments adopted onerous procedures
intended to discourage property owners from exercising the rights
restored by Ballot Measure 7 (2000). These procedures were nothing more
than an effort to eliminate or limit the ability of property owners to
have their property rights restored. The drafters of Measure 37 knew
that local governments again would try to thwart the will of the people
by imposing onerous regulations.
Subsection (7) of Measure 37 empowers property owners by ensuring they
can proceed with their claims, despite state or local government
attempts to short circuit Measure 37, through the adoption of
complicated and expensive claims procedures.
What do you mean by ‘Yes”?
Obviously, the passage of Measure 37 was a significant accomplishment.
There can be no doubt about that. But almost as significant has been the
response of many local governments to Measure 37's passage.
As one would expect, Multnomah County has been especially resistant to
implementing the measure (even though it passed in Multnomah County),
but the remaining counties have been (for the most part) eager to
implement Measure 37 fairly and consistent with the intent of the
voters. Most counties recognize Measure 37 as an opportunity to improve
economic development in the communities.
Accordingly, if you live in counties such as Jackson County, Crook
County, Deschutes County, Josephine County or Linn County (to name a
few), we strongly suggest following the procedures adopted by those
jurisdictions. The procedures adopted by these and the other counties
are intended to get you what you want as quickly as possible. These
counties want to work with you – not against you – to make sure your
rights are restored. Therefore, it would be wise for you – as well – to
work with the counties.
13. If I may be able to use my property
for the use that I want under regulations enacted after I acquired the
property, should I make an application for that use before filing a
claim under Measure 37?
Yes. In some cases, it may be possible for you to still qualify to use
your property in the way that you could when you purchased it. In those
situations, we recommend that you file an application with your local
planning department, or at least consult with them, to determine whether
you can qualify for the use.
You do need to satisfy the requirement that the government has
“enforced” a regulation. if there has been no denial or other action
that “enforces” the regulation, you should include a statement that an
application would be futile and ask for approval of the uses which you
expect the government to deny.
For example, if the law is clear that you cannot use your property in
the way that you could when you purchased it, then it would be futile to
submit an application to the local government. For example, Oregon law
prohibits the creation of parcels smaller than 80 acres in farm or
forest zones (97% of all privately owned rural land in Oregon is zoned
for farm or forest use, regardless of whether or not it can be used for
agriculture or timber uses). Because the local government cannot approve
a request by a farmer to divide his 80 acre farm into two parcels for
each of his children, it would be futile for the farmer to submit a
partition application to the local government.
In any event, Measure 37 says that you have two years from the date an
ordinance is enacted or enforced against your property. Therefore, it is
up to the property owner to make sure a use application has been denied,
or the local government has communicated to the property owner that a
desired use would not be allowed, before filing a Measure 37 claim.
14. Do I need to file an application to
rezone my property or seek a variance from land use regulations before I
make a claim under Measure 37?
No. Measure 37 does not require you to file an application to change
the zoning on your property or seek a variance before you file a claim.
All that is required by Measure 37 is that a law is enacted or enforced
against your property, and that law lowers the market value of your
property. That is all that is required by Measure 37.
15. Do I need an appraiser to certify the
value of my claim before I make a claim under Measure 37?
No, the only time an appraisal by a certified appraiser may be
necessary are:
(1) when the government intends to pay the claim, or
(2) when there is uncertainty about whether there has been a loss in use
and value of the property because of the offending regulation.
Nevertheless, you should present evidence of the loss in value caused by
the regulation(s). Many Measure 37 claimants have submitted as evidence
real estate market analysis, comparable sales in the area versus the
assessed value of the subject property, and offers made for the subject
property, as evidence of the value of the subject property, the value of
the loss of the subject property, or both.
Measure 37 does not require you to hire an appraiser before you file a
claim. However, if you cannot agree with the state or local government
about the value of your claim, you will likely need a report from a
qualified appraiser to substantiate your claim in a court of law.
16. Do I need an attorney to help me with
my claim?
Nothing in Measure 37 requires you to hire an attorney to help you
with your claim. A property owner can file a claim on her own. However
it is still a good idea to contact an attorney before filing a Measure
37 claim to make sure your application is complete. If you don’t know an
attorney, or need help finding one, please call us at (503) 620-0258 and
we will refer you to an attorney familiar with Measure 37 and land use
regulations generally.
17. What information should I include in
my Measure 37 claim?
Every county and the state of Oregon have adopted uniquely different
procedures and forms for filing claims under Measure 37. We suggest a
property owner submit information requested on the government’s claim
forms. With that being said, we suggest at a minimum a Measure 37
claimant provide the following information (for ease of reading, the
term regulations is intended to mean all laws, goals, rules,
regulations, ordinances and policies affecting the use of your
property):
• A statement that a claim for compensation is being made based on a
land use regulation enacted or enforced against your property. This
statement should be very clear that you are making a demand for
compensation pursuant to Ballot Measure 37 (2004)(Or. Laws. Ch. 1,
2005);
• A statement describing the regulation or regulations that is/are being
enforced, or that have/has been enacted, against your property, and when
the regulation(s) were/was enacted or enforced by the government. Some
local governments are requiring Measure 37 claimants to identify every
regulation affecting the use and/or value of the subject property. If
possible, we suggest listing as many regulations (either by the specific
citation or by a general description) that applies to your property;
• A statement describing when the current owner acquired the property.
This information should be supplemented with information such as deeds
and/or land sale contracts.
• A statement detailing the regulation(s) that were in effect at the
time you and/or your family acquired the property;
• A statement explaining the current market value of your property with
the offending regulation(s);
• A statement detailing what the market value of your property would be
if the offending regulation(s) were/was not applied to your property;
• A demand for compensation for the loss in market value, with a
statement that the current owner of the property will accept a “waiver”
of the offending laws or regulations in lieu of compensation (note: you
may also want to indicate that you actually intend to develop your
property to a lesser degree than is stated in your Measure 37
application)
• The name, address and current telephone number of the current owner of
the property.
18. Can the government charge me a fee
for making a Measure 37 claim?
No. Again, subsection (7) of Measure 37 makes this point clear. In
2000, after the passage of Measure 7, many local governments began
adopting procedures for processing Measure 7 claims which included
exorbitant fees. Back in 2000, local governments adopted these high fees
in an effort to discourage property owners from filing Measure 7 claims.
Accordingly, subsection (7) of Measure 37 was included in the measure to
avoid cases where the local government adopts fees so high that they
make it very costly for any property owner to receive relief under
Measure 37.
Unfortunately, some local governments have passed or are considering
ordinances that will impose excessive fees on property owners who file
Measure 37 applications for relief. This is akin to having the
schoolyard bully steal your lunch money, and then charge you a "fee"
when he gives it back to you.
We encourage local governments and property owners to work together to
create a reasonable and fair process for resolving claims. If fees are
modest and reasonable, and the claims process is not designed to punish
property owners for attempting to have their rights restored, it will
encourage everyone to work together without litigation. If fees are
excessive, however, property owners will simply resort to litigation to
obtain relief.
NOTE TO MULTNOMAH COUNTY RESIDENTS
- Not surprisingly, Multnomah County is attempting to charge Measure 37
claimants $1,500 just to make a Measure 37 claim with the county. Do not
submit to the county’s extortion! Remember, Measure 37 only requires
that you make a demand for compensation upon the county.
19. How long does the government have to
make a decision on my Measure 37 claim?
180 days from the date you make a written demand for compensation upon
the government. Many local governments, and the State of Oregon, adopted
policies trying to define when a Measure 37 claim is "filed", for
purposes of determining when the 180-day clock begins to run.
A Measure 37 claimant must understand that nothing is actually "filed"
with the government. In order to start the 180-day clock, all a Measure
37 claimant must do is make a written demand for compensation upon the
state or local government.
Many local governments have adopted provisions in their Measure 37
ordinances that claim the 180-day clock does not begin until the local
government deems a Measure 37 claim “complete”. NO! Measure 37 could not
be more clear – the 180-day clock starts when a property owner makes her
written demand for compensation upon the local government.
It is critically important for current and potential Measure 37
claimants to understand that many local governments are hoping property
owners will not be aware of their rights under Measure 37. These
governments will try to deceive you into thinking you must follow their
procedures otherwise you cannot begin the Measure 37 process. Do not be
misled. Know your rights and beware!
Again, the 180-day clock starts to tick when a property owner makes a
written demand for compensation.
20. What if the government does not
resolve my Measure 37 claim within 180 days, or I do not like the
result?
If your claim has not been resolved within 180 days, or you are
dissatisfied with the government’s decision, you can proceed with a
lawsuit to secure compensation in the circuit court for the county in
which your property is located. Nothing requires you to file a lawsuit,
the choice is yours to make. If your lawsuit is successful, you are
entitled to recover your attorney fees and court costs.
Then, after obtaining a judgment from the circuit court, the government
has 2 years to satisfy the judgment. If the local government fails to
satisfy the judgment, the offending regulations are automatically
removed.
21. Does Measure 37 mandate a process for
local governments to follow to make a decision on a Measure 37 claim?
No. Each local government (and the state government) is free to create
its own process for handling Measure 37 claims. This allows smaller
cities and counties to adopt different laws from larger cities and
counties.
22. Who is an "owner" under Measure 37?
Measure 37 defines "owner" as the present owner of the property, or
one who owns any interest in the property. In other words, if you and
your two brothers all have an interest in a piece of property, all three
of you are "owners" of the property under Measure 37.
The last four words in the definition of “owner” are critical. The
phrase “or any interest therein” was inserted into the measure to
articulate that any possessory property interest in property will
suffice to maintain a Measure 37 claim.
In other words, say my grandmother owns 1% of a piece of property that
she bought in 1940 and I own the other 99%, which she gave me in 1990.
My grandmother’s 1% is enough to sustain a Measure 37 claim going back
to 1940.
Other examples of interests that will suffice for purposes of Measure 37
claims: Contract seller/purchaser, trust settlor/grantor, trustee, trust
beneficiary, lessee, general/limited partner.
23. Are there two types of claims under
Measure 37? (1) claims for compensation only, and (2) claims for
compensation or a waiver of offending regulations?
In a sense, yes.
Although a Measure 37 claimant may make only a demand for compensation,
in practice Measure 37 distinguishes between claims for compensation and
claims eligible for waivers. A claim for compensation claims revert to
the date property was acquired by a family member. A claim that is
eligible for a waiver reverts to the date the present owner acquired the
property, or any interest therein,
A claim for compensation is based upon the difference between the market
value of the property with the regulations from the market value of the
property without the regulations.
The only restrictions that can be “modified, removed or not applied”
(i.e. “waived”) are those regulations that went into effect after the
present owner (not a previous family member) acquired the property.
24. My property is in a trust, can I
still make a Measure 37 claim?
Yes. Settlors, beneficiaries and/or trustees of trusts have sufficient
interest in the property file a Measure 37 claim based upon their status
in relation to the trust.
25. Does Measure 37 Affect Farm Tax
Deferrals?
Only if and when you take your property out of farm production
pursuant to an application for development filed after your Measure 37
claim has been approved.
Measure 37 will not have any effect on surrounding property owners’ farm
tax deferral status unless they, too, choose to take their property out
of farm production.
26. How will Measure 37 effect Urban
Growth Boundaries (UGBs)?
Measure 37 does not change UGBs, or give property owners the right to
demand that the UGB be altered. Although Measure 37 restores development
rights that were taken from property owners, there is nothing in the
measure that requires or even authorizes local governments to extend
urban services like roads, water and sewer to development outside the
UGB.
If anything, Measure 37 will likely relieve the pressure many local
governments are feeling to expand its Urban Growth Boundary. Because
many jurisdictions lack sufficient space to accommodate future growth,
pressures to expand the UGB keep increasing. Measure 37, by restoring
development rights for rural landowners, will provide new residential
opportunities for local communities, subject to health, safety and
access to roads.
27. Will Measure 37 eliminate Oregon’s
land use planning system?
No. In fact, Measure 37 completes implementation of Oregon’s land use
planning system. In 1973, when statewide land use planning was first
imposed on Oregonians through the passage of Senate Bill 100, it was
intended that property owners would be entitled to compensation cause by
the loss of property values as a result of land use planning.
Unfortunately, once the proponents of centralized planning got what they
wanted – the ability to adopt regulations to control private land – they
had no incentive to make sure your property value was protected, so
efforts in subsequent legislatures to protect property owners – as
intended by Senate Bill 100 – failed.
Ballot Measure 37 simply completes implementation of land use planning
in Oregon by providing property owners with protection from the loss of
property value as a result of having their property rights stolen from
them.
The fact is that not one word of Measure 37 prevents local governments –
or the state government – from enacting another land use regulation. All
Measure 37 does is level the playing field by forcing local governments
– and the state government – to consider the economic impacts of its
decisions on Oregonians.
28. What effect will Measure 37 have on
the future of land use planning in Oregon?
Measure 37 will force government to consider the economic impact of
the regulations that government enforces against property owners. Right
now, government only pays lip-service to property owners by engaging in
a fruitless, pointless process. Measure 37 will require government to
consider the impact of a new law on the pocket books of those who pay
the most under the current system, property owners.
Governments still have extensive authority to implement land use plans –
through control of public services such as roads water and sewers.
29. Does Measure 37 permit the government to
take a waiver granted under Measure 37 away in the future?
No. Once a regulation is waived by the government, the regulation is
waived for the current owner and all subsequent owners of the property.
However, some local governments are trying to thwart the will of the
people by inserting a provision into their ordinances that provides that
development or subdivision rights secured under Measure 37 cannot be
transferred. Also, a lawyer in the Attorney General’s office has written
a “letter of advice” saying Measure 37 claims are “personal” to the
claimant, thereby limiting the claimant’s ability to transfer rights
secured by Measure 37.
For example, if a local government granted a property owner the right to
build a home, it could force that property owner to tear down that home
if the property owner no longer lived there. It is simply a brazen,
unjustified attempt to derail Measure 37.
These types of regulations fly in the face of the collective voice with
which voters spoke on Measure 37. The whole point of Measure 37 was to
restore rights a property owner had taken from them as a result of
government regulation, rights that included the ability of a property
owner to transfer a permitted use.
30. Where is the money to pay compensation
claims under Measure 37 supposed to come from?
Measure 37 was intentionally written to allow governments to decide
from where – or if – compensation claims would be paid.
Right now, the cost of land use planning in Oregon is being paid by
individual property owners, not the public as a whole. It only seems
fair that if the citizens of the state of Oregon are going to receive
some perceived public benefit from land use planning, that citizens of
Oregon should bear the cost of the system.
31. What did the legislature do in the
2005
session to implement Measure 37?
Two major bills regarding Measure 37 were presented to legislature
during the 2005 session. They were SB82 (which became known as the
"Big Look Task Force" bill) and SB 1037.
Senate Bill 82:
SB82 passed and after much wrangling between the
Governor, Speaker of the House and Senate President the Big Look task
Force was created. The Task Force has a two year mandate to study
all of Oregon's land use laws as well as to get input from all concerned
citizens, organizations and governmental agencies.
The Task Force, has website which can be found
HERE, is the
best source of information regarding the group. You can also sign
up for free email alerts from the Task Force Communications either off
the main page or
HERE.
Senate Bill 1037:
In the end after SB1037 was amended several times and passed by the
House - NOTHING! The Senate voted the final version down and overall the
Legislature and Governor have left it in the hands of the Oregon Courts
to decide the Constitutionality of the Measure; whether or not there is
a right to transfer your Measure 37 waiver and various other issues.
32. Do Oregonians still support the
policies and protections of Measure 37?
Yes.
In a poll released by the Oregon Business Association – a group that
OPPOSED Measure 37 – 67% of the respondents to the poll said that
property rights are very important and must be protected.
During the five months prior to the poll, the Oregonian and other media
outlets, not to mention property rights opponents, have misrepresented
to the public the operation and effects of Measure 37.
54% of Oregonians say they would still vote for Measure 37 - even after
these attempts to mislead the public.
Clearly, Oregonians understood what they were voting for when they
approved Measure 37, and they still support the policies and protections
of Measure 37.
33. What about the United States Supreme
Court’s decision in New London v. Kelo? Will the Supreme Court’s
decision affect the operation of Measure 37?
The Supreme Court’s decision in Kelo unfortunately demonstrates that
when it comes to the Bill of Rights, all of the rights are important,
its just that some civil rights are more important than others.
Accordingly, if property owners want to protect their civil rights, they
are going to have to do it on their own.
Nowhere is that more evident than in Oregon. Oregon’s Supreme Court, by
invalidating Ballot Measure 7 (2000) on a hyper-technicality, signaled
to Oregonians that the Oregon Supreme Court has no intention of
protecting property rights. Further, the fact that the Governor and the
Legislature (at the urging of powerful anti-property rights groups)
failed to pass property rights protections in lieu of the vote on Ballot
Measure 7 (2000), it has become clear the only way property rights will
be protected is via the initiative.
The United States Supreme Court’s decision in Kelo should be a wake-up
call to all Oregonians to be ever vigilant in protecting your rights via
the initiative process.
Oregonians In Action sponsored Ballot Measure 39 for the
2006 General Election. It passed with 67% of the vote.
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The
Good, The Bad, and Multnomah County - Local Government Measure 37
Ordinances:
Analysis
of Local Government Measure 37 "Implementing" Ordinance Proposals:
What the State of Oregon thinks:
The Oregon Administrative Rule for Measure 37
Claims:
Oregon Dept. Admin. Svcs. Measure 37 Claim Info:
How to get involved:
(Session convened January 8th, 2007)
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