Legislature hammers on Measure 37 questions

Just as state and local governments, private landowners, environmental organizations, and attorneys are wrestling over a flurry of Measure 37 land use claims, one question has the whole process stalled.

The question is whether land use waivers granted under Measure 37 can be transferred from the property owner gaining the waiver to someone to someone buying the property.

Ballot Measure 37 was approved by Oregon voters on November 2, 2004 by a vote of 1,054,589 (61 percent) to 685,079 (39 percent). It became law December 2, 2004.

The new law stated that an owner of real property is entitled to receive “just compensation” when a land use regulation is enacted after the owner or a family member became owner of the property if the regulation restricts the use of the property and reduces its market value. In lieu of compensation for this loss, the government responsible for the regulation may choose to remove, modify, or not apply the regulation.

Since the first of this year, more than 200 Measure 37 claims have been filed against cities and counties. At last count, Deschutes County had received 29 claims totaling more than $77 million. Eight of the claims have been made for properties in the Sisters-Cloverdale area and total about $57 million.

The issue of transferability of a waiver was raised last month when Oregon Attorney General Hardy Myers responded on February 24 in an opinion on transfers requested by Lane Shetterly, Director of the Oregon Department of Land Conservation and Development. In that opinion, Myers said “we believe that Measure 37 authorizes the public entity to modify or remove the law only to the extent required to provide relief to a current owner with a valid claim under the measure.”

Therefore, under this opinion, someone who buys property from an owner granted a waiver could not benefit from the waiver.

Backers of Measure 37 sharply protested thisopinion.

Dave Hunnicutt, executive director of Oregonians in Action, a major supporter of Measure 37, said that it was “beyond absurd” that voters would approve a measure that would not allow property to be sold with the value established by a Measure 37 claim. Because Crook County Court has passed an ordinance stating that waivers under Measure 37 claims can be transferred to a new owner, contrary to the Attorney General’s opinion, the state has asked the court for a ruling on the issue oftransferability.

In the meantime, Crook County has filed a declaratory lawsuit to determine if its ordinance allowing the transfer of waivers meets the requirements of the state law. A pretrial conference on this issue is scheduled for May 17 and a trial could be scheduled within a month after that conference. In a March 15 letter to members of the Oregon Legislature, Director Shetterly reported that the state has filed an appearance in the Crook County case.

“Since the Crook County case has already been filed, we saw it as a good and timely opportunity to get the issue of transferability in front of a court for determination,” he wrote.

Myers’ opinion also addressed another question raised by Shetterly. That question was “could a public entity grant waivers on a ‘blanket’ basis?” Myers answered that such “blanket” waivers could not be granted and that each claim must meet the test of qualifying on its own facts.

Most local governments are awaiting actions from the State Legislature. Oregon lawmakers face the challenging task of how to approach the many issues surrounding Measure 37 as they work their way through the 2005 legislative session. During the March 19 town hall meeting in Sisters, Senator Ben Westlund said that action will occur this session, but not in the immediate future.