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Tuesday, September 13, 2011

Clackamas commissioners' "urban renewal" measure doubly ambiguous

We've been staring for a couple of days now at the language of the decoy ballot measure that the Clackamas County commissioners have placed on the November ballot to compete with the citizens' initiative petition that would require countywide votes for future "urban renewal" expansions. The longer we look at the politicians' measure, the more ambiguous parts of it seem.

In particular, we're referring to the conflict provision -- the part of the commissioners' measure that talks about what happens if it conflicts with other county laws. It reads as follows:

A number of intriguing questions arise out of this poorly chosen language.

First things first: Does this language even apply to the conflict between the two measures on the November ballot? Specifically, is the measure originally initiated by the citizens' petition a "referral"? At least to our untrained eye, it doesn't seem so. There's a clear distinction made in state law between an initiative and a referendum. A referendum is the situation in which a law or ordinance that the county commissioners enacted is forced onto the ballot by petition signatures. As we understand it, that's not what the citizens did here -- they invented their own measure, which is an initiative rather than a referendum. And so the conflict language in the commissioners' measure -- alluding to "any referral" -- may not even apply to the glaring conflict between these two measures. (The crux of the dispute is whether future "urban renewal" schemes should be subject to a countywide vote, or just a vote of the district that would benefit.)

Assuming that the conflict language does apply -- and that seems a major assumption -- there's an additional problem with the operative language: "the provisions having received the lesser number of votes in any referral of the measure to an election shall be void." Does that mean (a) the lesser number of "yes" votes, or (b) the lesser number of total votes, both in favor and against?

Take this example: Both measures pass. The citizens' initiative passes 10,000 to 5,000, and the commissioners' measure passes, 8,000 to 7,500. Assuming the conflict language applies, then which ballot measure prevails, and which one is void? The citizens' initiative has more "yes" votes (10,000 to 8,000), but the commissioners' measure, which also passed, has more overall votes (15,500 to 15,000). Which "provisions... received the lesser number of votes"? Common sense would say the politicians' version, but that idea could have been expressed much more clearly than in the commissioners' drafting.

If somehow the language means that the most total votes wins, then so long as both measures get a majority of votes cast, folks who favor the citizens' measure might be better off not voting at all on the commissioners' measure -- not even voting "no." On the other hand, if the measure with the most "yes" votes wins (a more loigcal, but by no means necessary, reading), then it would make sense for the citizens' group to vote yes on the initiative measure and no on the commissioners'.

Are these two ambiguities deliberate and malicious, or are they accidental? It's hard to tell. In the original version of the decoy measure, there was reference to actions taken by more or less than 51% of the voters in the "urban renewal" area. That was bad drafting, too. As anyone who's thought about it knows, a majority is 50% plus 1 vote -- not 51%. 5,001 to 4,999 is a majority -- you needn't get to 5,100. Somebody down there is a truly poor drafter, or diabolically clever.

Either way, it's hard to tell what the heck that conflict provision says. So who knows what the rules are going to be here? Maybe Kate Brown or John Kroger can send out a press release on the subject. But the vote's less than two months away. Election procedures in Oregon are the pits sometimes, aren't they?

Comments (19)

Occam's razor says it's more likely stupidity than genius. Either way, the lawyers win.

Maybe the taxpayers/voters will win too, if the legal challenges keep Urban Renewal from actually being implemented.

"Are these two ambiguities deliberate and malicious, or are they accidental?"

What IS deliberate and malicious is the the commissioners wanted to derail what the citizens had legally put on the ballot.

Jack, thanks for elaborating on this one legal conflagration of the Clackamas Co. Commissioner's measure. It will be challenged at the least.

But there is still more. What is your opinion on the wording of the Commissioner's measure on who gets to vote in their specialized proposed urban renewal districts versus the whole county that will be taxed? How can that be sorted out, and by whom? Brown? Then legally challenged, and several times over?

Portland native, you may have it right. It really may be a win for the citizen's measure in the long run.

"versus the whole county that will be taxed?"

You should avoid making that statement unless you use additional clarification.

There is no "new" tax written in the UR plans we have witnessed and will not be in the Clackamas County plans.

UR proponents are forever touting that UR doesn't require a hew tax. True enough up front and in the plans.

However, the whole county will equally suffer the detriment of 100s of millions in property taxes being diverted from county wide services. "New" taxes or fees will of course be needed to replace the taken millions and when that falls short service cuts occur.

It's unavoidable.

What people seem to not realize is they talk about the taxes from urban renewal areas that are stopped from going to police, fire, schools etc. What they miss however is that without the urban renewal area those taxes would never be realized in the first place. Look at the Pearl, has there been some mismanagement, absolutely. However when those buildings go off the urban renewal books the city and county will make much more than they did before the urban renewal area was formed.

And when exactly, do these areas ever get taken off the UR books?

I don't think the conflict provision ambiguities in the decoy measure would govern here.

State law holds that the measure receiving the most affirmative votes will supersede the other measure, but only as to conflicts between the two.

ORS 254.065(2) No measure shall be adopted unless it receives an affirmative majority of the total votes cast on the measure. If two or more conflicting laws, or amendments to the Constitution or charter, are approved at the same election, the law, or amendment, receiving the greatest number of affirmative votes shall be paramount regarding each conflict, even though the law, or amendment, may not have received the greatest majority of affirmative votes.


I'll apologize ahead of time if you are merely unable to "realize" yourself how TIF works.

But that was spoken like the true UR conniver.

In misleading people you have, of course, struck at the heart of the ponzie scheme con job Tax Increment Financing truly is.

It is you who does not realize that UR diverts ALL of yearly automatic tax increases from the entire district. Not just the parcels where projects occur.

Do you understand that nearly every parcel throughout the city sees property tax increases every year? All of which go to help offset the rising cost of essential services.

UR/TIF takes all of the increases which officials claims they created the revenue.

Most often very little of the new taxes from urban renewal areas that are stopped from going to police, fire, schools etc. are created by the UR projects.

Your claim that "without the urban renewal area those taxes would never be realized in the first place" is patently false to the nth degree.

Even in the Pearl there were vast sums taken that had nothing to do with the projects.

One BIG example is the inclusion of the US Bank tower in the UR district when it was formed. That fancy tower where the Portland City Grill is on the 30th floor.
In all of the decades that followed every yearly increase in the tower property taxes were diverted from essential services to UR debt.
The PDC et al claims they created all of that revenue.
SoWa UR district is 411 acres. The total of all projects will never be more than 130 acres.

The Pearl itself was the only downtown growth available area during a booming economy so UR cannot take credit for all of the development. Much of it would have occurred with the massive subsidies or the Streetcar. UR planners always claim nothing will ever happen without UR. They make that claim even when their own plans are the only obstacle to development for years.

The other zinger is this notion of "when those buildings go off the urban renewal books the city and county will make much more".

Every time a Portland UR increment has been returned far greater amounts have been taken away with new schemes.

Now 24% of property taxes go to UR debt.

Ben's points are correct. In Portland 24%+ of our property taxes is given to PDC to "administer" the 11 URAs, and more. That is UR costs beyond the tax increment financing dollars taken out of property taxes beyond the typical 3% annual valuation increases.

Then another aspect of urban renewal is that in most cases there are extensive amount of federal, state, local tax subsidies in each URA, robbing dollars from basic services. Additionally, in many URA's many properties are taken off the tax roll because the projects become government owned, non-profits, etc. Thus, no taxes ever, even after a URA closure (which is almost never). SoWhat is a prime example where over 50% of the 130 acres are in this gov-non profit realm. Who's paying the taxes to run our city?- the rest of us.

Clackamas Co. would be setting up an administrative department for their proposed UR that will be costing over $Millions if Commissioner's succeed. Those costs would come directly out of the county's taxpayer pockets.

JDUB's claims of no taxpayer dollars for urban renewal is totally false.

Clackamas Co. already has an massive administrative department for their existing UR districts.

Check this out.

The Clackamas Town Center UR district has only a $5 million remaining debt, a $12 million annual TIF income and a $20 million reserve. Yet it is not due to be terminated until 2013.

So what is all the money for? And why is it sitting there while basic services flounder?

Another UR district already terminated has no debt and a $9 million annual budget.


Clackamas County has only had 4 districts. Two have been shut down. Also, unlike pdc, they only have 6 employees or so in the urban renewal department.


I realize what Clackamas County has in their department.
It's the massive amount of money they are handling I meant to emphasize.

Sorry, I misspoke with Massive "department".

Do you have any explanation for the hefty budgets for shut down districts or the CTC reserve, income and small debt?

Jack, what about the argument that there is no conflict?

The decoy measure lets people within proposed URAs vote on them, the real measure lets the whole county vote on them (since they are paid for by all county residents). There is no conflict if they both pass ... The people in the URA vote under either one, and the fact that the citizens' measure allows people outside the URAs to vote on them doesn't seem to conflict with anything in the decoy measure, since all it does is provide for people within the URA.

In a Venn diagram, the honest measure contains everything the decoy does. That's not a conflict. There's only conflict if there's something non-overlapping.

The decoy measure says that if the voters within the district vote yes, then the commissioners "shall adopt" the "urban renewal" plan. That's mandatory. Isn't that a conflict with the initiative measure?

You're probably right ... Although it seems you have to imagine a hypothetical case to reach that conclusion (where a URA measure passes within the handout zone but fails countywide). I mean doesn't the honest measure also say that the commission shall adopt the URA if it gets a majority? So they're not necessarily in conflict; it is possible to imagine one, but that's not a conflict in the two measures, its a hypothetical conflict in the two possible outcomes.

Besides, who counts votes within URAs only? In a countywide election, votes are counted and reported by precinct. Afaik, URAs are drawn to maximize pork content, not to follow precinct lines.

If they both pass, wouldn't a court be reluctant to create a conflict in order to throw out a voter-passes measure when they can be reconciled?

What a pain in the neck it is going to be for county elections to distribute special ballots only within crazy "urban renewal" district boundaries. Could get mighty expensive.

"Pain in the neck" "Could get mighty expensive" is just 1/3 of the problem.

How will they determine who gets to vote in a special zone? Renters, property owners, employees of businesses in zone, a customer, a visitor? The Commissioners' Measure doesn't define.

How will they determine who gets to vote in a special zone?

It would be the registered voters in a district designed by the County Commissioners.

A lot of people don't realize that the same individual County Commissioners also populate the County's urban renewal board (no more no less). Those Commissioner/UR Board members will have a perverse incentive to design a district that:

a. includes as much taxable property value as possible, and

b. includes only voters who have something to gain from their plan.

Any tension between (a) and (b) will only increase the size of the plan so everyone gets a share.

If I was in their shoes (focused on serving developers and completely without conscience) I would design a district that covers mostly commercial properties (with no voters) and then add in 4-5 nearby apartment complexes.

Then you bribe your handpicked district of apartment voters with something like a new 4000 seat baseball stadium (for maybe 12% of the total UR plan).

Finally you run a door-to-door campaign convincing those 500 apartment voters to approve $150 million in new urban renewal debt because it is all about JOBS.

Voila! The Commissioners call it a victory for "Local Control" while the rest of the County covers the debts.

Bread and Circuses.

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