How to fix Measure 37

Measure 37, the property-rights measure (or the undo-land-use-planning measure, depending on your point of view), needs to be repaired.  A Marion County trial judge held yesterday that Measure 37 violates the Oregon constitution, but for now her decision applies only to the parties to the case.  These are the state itself and three counties: Clackamas, Marion, and Washington.  The result (I believe) is that until an appellate court rules on Measure 37, the state and these three counties can't grant Measure 37 waivers, but cities and the other 33 counties can.  (The decision of a trial court has no value as precedent, but does bind the parties to the case.)

I suppose that someone who needs a Measure 37 waiver from (say) Deschutes County, but not from the state, can still pursue the claim.  We can't go on very long with Measure 37 being sort of valid in some places and invalid in others, however, so either the courts need to fix Measure 37 rights at a constitutional level, or the legislature needs to revise the Measure 37 concept to that point.

Here is my vision of how Measure 37 could be revised by the Oregon Court of Appeals to conform to the reasoning of the trial judge and yet still have some effect.  (A link to her opinion is in the previous post.)

Although she did not say so in her opinion, Judge James would clearly have found that people buy property in reliance on the zoning.  She found that some of the plaintiffs had bought their land in reliance on how their neighbors' land was zoned, and if the question had been presented to her she would have had to find that Measure 37 claimants bought their land in reliance on the zoning also.

The court of appeals could find that the state has a legitimate interest in having people who buy land be able to rely on the zoning without being adversely affected by later-enacted land use regulations.  This is the basic purpose of Measure 37.  The court could, however, say that the state doesn't have a legitimate interest in having people who inherit land or buy it from relatives get compensation because the zoning changed while their relative owned the land.  Put another way, if A and B acquired adjacent properties at the same time, why should A get better treatment because A inherited from a relative but B bought from a stranger? 

From this reasoning, the court could say that owners of land can go back to the zoning in place when they themselves acquired their property.  Respecting, however, the legal rule that corporations are artificial persons, a corporation or limited liability company could not go back to when its principals acquired the property -- if you put your land into a corporation, it counts as a transfer.  You can't have the benefits without the disadvantages.

The compensation provisions could be removed.  Despite what Judge James wrote, the main purpose of Measure 37 was waiver, not compensation.  (Measure 37 allows owners to get a waiver or compensation for zoning rules imposed during their ownership, but allows persons who bought or inherited from relatives to get compensation, but not a waiver, for rules adopted during the prior relative's ownership.  I think this was a drafting error.)  The result is by no means perfect, but it's fair and defensible.  You get to choose between the zoning in place when you bought your land, or the zoning that's in place today.

I don't think this solution will occur to the Court of Appeals (though I would be delighted if it did, with or without citation), but it, or something like it, had better occur to the legislature, or the next initiative will be simpler and stronger.  In the continuation I give some predictions.

I can imagine one or two of these initiatives being presented to the voters in 2006 as a response to Measure 37 being held unconstitutional and inseverable.

1.  Repeal ORS Chapter 197, authorizing statewide land use planning, and all regulations issued under its authority.  (This is the ultimate "gut the system" initiative.)

2.  Require state and local governments to apply those land use regulations in effect when the present owner of land acquired the property (instead of the current regulations), if the owner so requests as part of a land use application.  The waiver expires if the property is not developed within 2 years after the waiver, and cannot thereafter be reapplied for. 

3.  Prohibit state and local governments from requiring lot sizes larger than X acres (maybe 5, 10, or 20 acres) on land that is not in special assessment for farm or forest use.  You can divide your rural acreage, but you have to pay full taxes on the value from then on out.

4.  Repeal the gross-receipts test for dwellings in farm and forest zones -- that is, treat farm dwellings and non-farm dwellings equally.

Comments

[Marvinlee]

Thanks for an exceptionally astute recommendation on land use. I agree that we cannot long condone a hodge podge of land use law interpretations. I wonder what state has the most successful set of land use laws?

[dave]

There are many instances of Property A and Property B having different rules/limitations depending on time of ownership.
If Measure 37 was simply rewritten to say that you are allowed the zoning at time of purchase then all these folks would be ok with it?
Hardly. The 'in-family' exemption simply recognizes the continuous chain of ownership and mainly grew out the prohibition of large land owners (farmers) not being allowed to build a house for their kids nearby.

The other 'fixes' clearly continue to limit property owners. The question is, why?
2 year development? Why? Because the real agenda is no growth outside the UGB? It is a totally unneeded requirement. Please illuminate what quality of life is generated by 5000 sq frt lots sizes.