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Tuesday, December 28, 2004

Take this

The law school at which I teach is starting off the new year by throwing a major confab next Wednesday, Jan. 5, on Ballot Measure 37. This is the now-enacted law that requires land use regulators in Oregon to pay property owners money when new regulations (or new enforcement of old regulations) decrease the values of the owners' property. (It's the end of Oregon as we know it -- but don't get me started on that today.)

The "Measure 37 Summit," as it's being called, will be an all-day affair at the Oregon Convention Center (come and hear the wind whistle through Vera's White Elephant), with a live webcast available as well. Early registration ends tomorrow, Dec. 29. For more information, go here.

Comments (20)

I completely agree with Jack that measure 37 is the end of Oregon as we know it.

The following is a potential scenario which just shows one of the major problems with this measure:
Property owner A seeks to build a commercial building on land B zoned for residential use only. County C cannot afford to pay and so waives the restriction. Property owner A builds ugly commercial building on land B. Neighboring (or closely neighboring) property owners D, E, and F experience a decrease in the value of their respective homesteading properties due to the commercial building on land B being placed in an area zoned for residential use only.

As far as I can tell, property owners D, E, and FE are SOL and don't get to sue property owner A for their respective decreases in property value.

I guess the argument is that property owners D, E, and F should just build commercial buildings on their homestead properties (homestead meaning the homes in which they live). Yeah, that's practical. (please note the sarcasm in the last sentence).

Anyway, Jack, from browsing the list of speakers, I don't see any obvious pro-measure 37 presenters unless some of the attorneys from the big firms represent that view.

Aren't "Oregonians in Action" the bad guys? The Oregon Home Builders will also be very "pro," and the two appraisers will be laughing all the way to the bank.

they are only "bad guys" from your perspective.

You are right. Some of them are gals.

Wait wait wait wait wait wait wait. In Hilsy's confusingly constructed scenario, how does Property Owner A have a right to construct commercial buildings on residential property with County C allegedly unable to pay what? I don't even want to try to detail out all the things that do not make sense to me in that scenario. There may be problems with this law, but I do not see them fetchingly cast. Is this a matter of faith?

If there is one thing I am pretty sure of, though, from 40-plus years in Oregon, it is that Oregon has already ended as I knew it. Praise Tom McCall for still-public beaches. As nearly ever thus, the continuance of anything or everything is left to immigrants and inheritors.

are you in land use?
no exams are done biatch
vacation is here

so stop exam mode
shut the f up hilsy cuz
jack don't dig that crap

As far as I can tell, property owners D, E, and FE are SOL and don't get to sue property owner A for their respective decreases in property value.

Except in those localities which have passed ordinances re: M37 which include the right of private action.

Every one that is of the truth heareth my voice

I was reading in ABA Journal yesterday that Oregon courts are closed on Fridays. Holy Sh*t man, is that true? And now this. Sounds like times are tough in that great western state of yours. Bummer

B!X rightly corrected me in that some counties (but not all) have added a private right of action.

Sally, the scenario I presented is one where the county would choose to waive the land use restriction rather than pay property owner A. That is not very far-fetched when considering how cash-strapped most counties are in Oregon.

And lawe, this isn't law school. This is real life in my native state. Will they start building on the beaches next?

As I understand it, if the zoning of the property was residential when it was purchased, then the owner would have no claim toward commercial development now. It would only be if the property was zoned commercially at the time of purchase and the zoning was subsequently changed to residential during that one owners continuous ownership. Am I misinformed on this?


Unfortunately, measure 37 is far more sweeping. Note Jack's mention of new enforcement of old regulations. Remember the TV commercials starring the elderly woman who owned land up near Skyline?

RE: Mr Hilsy's comments:

I read the M37 link Mr Bog was nice enough to post and one of the exmeptions from M37 is 3(E) - Land use regulations enacted prior to date of acquistion by property owner. So in his case, the new owner buys the property with the zoning "as-is" and would not be able to change from private to commercial use (unless he wanted to go thru a zoning change request.)

I hear all of the fear-mongering (one more "end of Oregon as we know it" would really make my day), but my sense is, based on the above, that M37 is intended to put a damper on government changing zoning/permitted use after someone owns a piece of property.

I voted for it, unfortunately while holding my nose, but I think protecting private property rights shoud be paramount to some government entity deciding they want to change a property owner's right to use his land as he purchased it.

I wish there was another way, but government regulating itself out of abusing property owner's rights is not going to happen on its own.

In response to Steve's comments, here is the text of the subsection he cites:

"(3)Subsection (1) of this act shall not apply to land use regulations:
(E) Enacted prior to the date of acquisition of the property by the owner or a family member of the owner who owned the subject property prior to acquisition or inheritance by the owner, whichever occurred first."

First, the scenario I attempted to paint would still apply if a long-standing owner decided to significantly alter the use of the owner's property (and they lived in a county that did not provide a private right of action in response).

Second, this subsection effectively freezes current zoning laws/ordinances because enactment of ANY new land use laws (not covered under the nuisance/safety exemptions) trigger potential claims for compensation for two years subsequent to their enactment (see section (5)). Would any of the fiscally stuggling counties dare to gamble on passing a new zoning law?

Within the city limits of Portland, that may not present too much of a problem. But how about any attempts by Deschutes County to manage its exploding growth through use of land use laws? Tough nuts for them, I guess.

I think I understand some of the reasons measure 37 passed. For me they mirror the reasons Measure 5 passed over a deacde ago: people in government arrogantly ignoring a real problem. The state government in the 1980s (BTW under the "astute" leadership of then-speaker of the house Vera Katz) year after year ignored the fact that numerous property tax roll-back initiatives came dangerously close to passing. And in recent years, despite measure 7 passing (but subsequently ruled unconstituional), state and local governments forged ahead aggressively with new zoning laws.

So Steve, if you were advising a county government under this law, would suggest any new zoning laws?

Mr Hilsy - My advice to county governments is to take existing establishing zoning very seriously. If they wanted to change existing zoning on a property, then make sure it is something they want to do and is worth paying for. In other words, if someone buys a piece of property zoned as-is, make it hard for government to change that zoning and, in turn, the value of that property.

I guess this is a moratorium on zoning changes. You talk about Deschutes County, however if property is zoned Forest or Agricultural, then why would the county want to change it to higher density residential? If the county did do that, then I guess do an SDC to a developer to pay for the diff.

I mean the Metro boundary has had the same effect on limiting pop growth by driving up prices within their boundary.

I think this string is indicative of how people are very uninformed about this measure. Before saying (or repeating) the mantra of "the sky is falling" people should know of what they speak.

This measure constitutes a radical change in Oregon law. There is no serious debate about that.

Hilsy’s example highlights the burdens to the other neighboring property owners, but what also troubles me is the benefits the M37 property owner gets from the neighbors being subject to the land use regulations the M37 property owner isn’t.

By way of example – say a property owner owns property in an area zoned one house per 5 acres – say it’s on a hillside in Tillamook with a view of the ocean. Well, everyone surrounding the M37 property owner has only built one house per 5 acres. But, now the M37 property owner can build to whatever density they want. So in effect they the benefit of their neighbors being burdened by the land use regulations: they get great views because their neighbors have not built houses all around them which block their view, and the benefit of not having a subdivision feel all around them. The M37 property owner’s property is now worth much more than if the land use regulations had not existed at all.

That still would be the case if and only if the property owner you describe as the M37 owner purchased the property before the 5 acre rule went into effect. Measure 37 doesn't allow anyone to attempt to alter restrictions that were in place when they purchased the property, but only to request to re-develop based on the rules that were in place at the time of purchase. If someone wants to change zoning that was in existence since the time of purchase, they have to try for a zoning change just like they always have had to. Unless there are scads of Dorothy English type ninety somethings that purchased their property forty or fifty years ago and never developed it there won't be very many scenarios like you describe. The overwhelming yes vote on measure 37, in my view, was primarily a reaction against elitist planners doing nonsensical things, like designating wildlife zones in already urbanized areas, etc.

imagine a pre-land use planning, no zoning owner of a massive amount of once beautifully timbered, still encompassing invaluable stream, rivers, eco systems, etc land...
now imagine it all being urbanizable...
owner in msr 37 does not exclude corps.
hmmm...i wonder were all the contributions for 37 came from.
destination resorts/cities...
you want to see oregon? look in the rear view mirror.

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