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Thread: Oregon's Proposition 37

  1. #1

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    Oregon's Proposition 37

    There was a scare piece in the Sunday Chronicle this past weekend that implied the passage of Proposition 37 completely eliminated zoning regulations. One can simply apply for a "Prop 37 Exemption" and, for example, build an 80-acre gravel quarry in an agricultural zone.

    Oregon planners: is this true? I had thought one was talking about eliminating new regs-but does Prop 37 allow basically anything goes in rural Oregon?

  2. #2
    Cyburbian imaplanner's avatar
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    It was discussed previously here and here

    But I would certainly like to hear an update from the Oregon folks on how they are coping.

  3. #3
    If you go to the Oregon APA site, they have some interesting facts on there. There is some major litigation going on right now in Oregon regarding this whole mess.

    What is more interesting is that the copy-cat voter initiatives that have popped up in Idaho, Washington and several other states. Quite scary....
    Forechecking is overrated.

  4. #4
    Cyburbian Wildono's avatar
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    I attended an eminent domain conference primarily for attorneys and appraisers earlier this year in Portland. The consensus among attendees was that most jurisdictions could (and did) invalidate many of the claims based on the definition of the current property owner's tenure in relationship to the age of the regulation in the injury claim. For other claims, it seems that a reasonable question of recipients of regulatory waivers and monetary awards would be: "Who is going to pay how much for the extension of PUBLIC FACILITIES to your property?"

  5. #5
    Cyburbian
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    Measure 37 requires government to compensate an owner of private real property when a law restricts the use of private real property. There are four general classes of laws that restrict the use of private real property within the meaning of Measure 37. These general classes are:

    a) laws that limit what types of uses may be carried out on private real property or that prohibit a specific use (many zoning laws would come within this category);
    b) laws that provide that a government entity may allow the use, subject to certain standards, conditions or requirements;
    c) laws that limit how a use of real property may be carried out, by restricting the area of the property that may be used or by restricting the times at which the property may be used;
    d) laws that impose affirmative obligations on the use of property, such as a requirement to dedicate property for roads and sidewalks.

    The measure says that there is no compensation available for laws “restricting or prohibiting activities for the protection of public health and safety, such as fire and building codes, health and sanitation regulations, solid or hazardous waste regulations, and pollution control regulations.” Up until now this singular exception has been very strictly interpreted to not include laws for the protection of economic, social or aesthetic interests (the traditional “police power” that's often described as “general welfare”).

    There is no funding available to Cities or Counties to pay any compensation. Therefore, I have not heard of any jurisdiction yet that hasn't just issued a waiver from whatever land use regulations relief is being sought.

    Up to this point, rural property owners have been the majority of people taking advantage of Measure 37, primarily to subdivide their ag land and build single-family housing.

    As a land use planner, it leaves me scratching my head, because it passed by a 61-39 margin, and yet, as just one example of bewildering behavior, when some guy in a neighboring community wanted to sell his property to WalMart recently, the people in the community came out to the meetings and hearings in droves wailing about how Walmart would destroy their neighborhood. All I can say is it was a good sales job & just another piece of anecdotal evidence that the majority of voters have no #$*!#! clue what they're voting for.

  6. #6
    Cyburbian plankton's avatar
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    Ugh. My jursidiction (me, specifically) is preparing for phase 2 of M37: Subdivision applications and build-out.

    We have processed over 50 claims to date and most claimants have received waivers, usually to minimum lot size requirements and to Statewide Planning Goal 3 & 4 rules and regulations (Farm and Forest Protections). Some claimants have withdrawn their applications due to improper ownership records, and others have received modified waivers. We are having a hard time collecting on our bills for our research and staff time associated with processing the claims. Oftentimes, the bills are in the thousands of dollars. (Thanks, kindly taxpayers for yet another subsidy to enable this inequitable proccess. ) There is political resistance to send the bills onto collection agencies or to lien properties, or do anything else for that matter. Perhaps other jurisdictions are having more luck than we are on this front. I sure hope so.

    A sad (and probably little known) side note to M37 is this: We have had at least six claimants die in the past six months. I truly believe that greedy heirs are pushing their elderly parents into filing hurried claims so that residential lots (usually, in our case) can be created in forest/farm zones before their parents pass away. As one can imagine, many lawyers are involved in dealing with the claims, along with title companies, planners, appraisers, real estate professionals, opponents (neighbors/1000 Friends), elected officials, etc.; it is a pretty stressful process and the public hearings are a joke -- confusion, misinformation, garbled responses, banter in the audience; it's just ugly. I have even had to endure the truly pathetic experience of watching a child hold his ailing mother's hand to sign her name to a M37 claim form. Mid-way through our processing of the claim, she passed away. No mom = no grounds for claim.

    Long range planning in Oregon (at least in most counties I know) has gone by the wayside to make room for time spent researching deeds, scrutinizing marriage certificates, researching corporation laws, reviewing trust arrangements, etc.

    Not too long ago, an elderly claimant fell asleep in our chairs waiting to be served. It was kinda cute but at the same time, pretty sad. This darn thing is a disaster on almost every level.

    To call the outcome of this measure pathetic, would be an understatement.

    Yet, I must bite my lip throughout many one-sided conversations, be professional, and try to get through all this. Truth be told, it really does suck to high he!!.

    If you're in a state where a similar law is pending, you have every reason to be concerned. Washington's proposal looks to be even worse than ours (unlike in Oregon where we can at least still apply health and safety codes to claimant's proposals, WA's measure, if passed, would apparently only allow application of these laws if there is an imminent threat). I sure hope King County voters come through and defeat it soundly -- it would sure send a nice message to us and the rest of the world that the Pac NW hasn't lost all its marbles.

    I would love to take on the "zoning devalues property" contention. My butt, zoning devalues property. For every winner there's a loser and if we're going to pay-off "losers" than it ought to be out of the pockets of the "winners". Yea, right, that's gonna happen.

    Admittedly, I still love Oregon and all it has to offer, but we are in seriously back-peddle-mode at the moment. I am trying to remain optimistic, but it's tough. Chances are, if you're not in Oregon, a well-qualified, dynamic, informed, ethical, planning professional (or two, or three, or...) is looking to join your team. I have three close friends that have done just that, so far, directly as a result of this darn thing and I expect many more....maybe even me at some point.

  7. #7
    Cyburbian Reductionist's avatar
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    Quote Originally posted by OregonPlanner View post
    As a land use planner, it leaves me scratching my head, because it passed by a 61-39 margin, and yet, as just one example of bewildering behavior, when some guy in a neighboring community wanted to sell his property to WalMart recently, the people in the community came out to the meetings and hearings in droves wailing about how Walmart would destroy their neighborhood. All I can say is it was a good sales job & just another piece of anecdotal evidence that the majority of voters have no #$*!#! clue what they're voting for.
    I posted a link to an article about a month back that clearly shows the type of deception that is being used to get Measure 37 type issues onto ballots throughout the west. Essentially they're using the backlash against Kelo as a stalking horse to push a radical property rights agenda that aims to nullify any sort of effective land use planning in this country. This isn't new, as Property Rights extremists have long appealed to base fears and emotion (e.g. the Meaure 37 commercials). And sadly propaganda like this is incredibly effective in an age of infotainment where soundbites and memes rule the day.
    "I believe in pulling yourself up by your own bootstraps. I believe it is possible. I saw this guy do it once in Cirque du Soleil. It was magical!" -Stephen Colbert

  8. #8

    Is it true?

    I heard that there was an appeal to the Oregon Supreme Cout that the waiver was with the individual land owner and not a new property owner? Hence if I wanted to develop my property and invoke the powers of M37, then I would have to do the developing and I could not hand it off to another person? If that makes sense....
    Forechecking is overrated.

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