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The Oregon Supreme Court unanimously upheld Measure 37 in a ruling released Tuesday — a boon to would-be home builders and developers who chafe under the restrictions of state land use laws. Now, several thousand claimants representing 66,000 acres of Oregon land have a green-light from the highest court in the state. Measure 37 allows property owners to apply for a waiver from land use rules they say harm their property's value. In other words, a waiver to bypass land use laws and develop their private property. This, said the Supreme Court, is perfectly constitutional. 1000 Friends of Oregon was one of the groups challenging Measure 37 in court. Now, 1000 Friends is likely to challenge the side-effects of Measure 37 with one or more ballot initiatives for voters this November, said the group's governmental affairs director...

Supremes: M37 Is Perfectly Legal; Let the Developing Commence

The Oregon Supreme Court unanimously upheld Measure 37 in a ruling released Tuesday — a boon to would-be home builders and developers who chafe under the restrictions of state land use laws. Now, several thousand claimants representing 66,000 acres of Oregon land have a green-light from the highest court in the state.

Measure 37 allows property owners to apply for a waiver from land use rules they say harm their property’s value. In other words, a waiver to bypass land use laws and develop their private property. This, said the Supreme Court, is perfectly constitutional.

A lower trial court previously ruled Measure 37 unconstitutional on five grounds, but the Supreme Court justices unanimously reversed that ruling and upheld Measure 37, point by point.

“Nothing in Measure 37 forbids the Legislative Assembly or the people from enacting new land use statutes, from repealing all land use statutes, or from amending or repealing Measure 37 itself,”? wrote the justices in their ruling.

They added, perhaps hinting, “Whether Measure 37 as a policy choice is wise or foolish, farsighted or blind, is beyond this court’s purview. Our only function in any case involving a constitutional challenge to an initiative measure is to ensure that the measure does not contravene any pertinent, applicable constitutional provisions. Here, we conclude that no such provisions have been contravened.”

This was the Oregonian’s breaking news report. Oregonians In Action had a more pointed reaction on their measure 37 page: “!!!!!WE WON!!!!!”

Controversial and far-reaching, Measure 37 was said by supporters to roll back intrusive government regulations and reestablish the primacy of private property rights. Perhaps it does. And the poster child imagery of an oppressed elderly lady who wants nothing more than to use her land — a humble wish squashed by government bureaucrats — is profoundly powerful. It’s also profoundly misleading. Some 85 percent of state claimants filing for Measure 37 waivers want land divisions with the intention of building multiple dwellings, almost all on land zoned for farm or forest use, outside of urban growth boundaries. In other words, they want to log forests and pave farms to build large development projects.

Given several ongoing legal and rights-transfer questions raised by Measure 37, the Legislature had an opportunity last year to craft a less bludgeonly alternative to balancing property rights and sensible planning. Legislators failed to do so, despite a valiant effort by a few.

However, legislators did authorize the Big Look, a multiyear examination of Oregon’s land use laws. The purpose is to revise and update those laws, to make them more useful than when they were passed, in the 1970s. The Big Look starts with its first meeting Friday, March 3.

That’s a long-term project, one that has as its end, recommendation for state lawmakers. Who may or may not do anything with them. But pro-conservation forces aren’t likely to wait and hope, not with the wind in the developers’ sails.

“The court held that Measure 37 is legal. The court did not rule that it is fair,” said Bob Stacey, executive director of 1000 Friends of Oregon, in a press statement following Tuesday’s court ruling. “It is not fair to put a gravel pit next to someone’s home and that is what Measure 37 allows. The government needs to find a way to pay those people who experienced a loss without sacrificing our quality of life and hurting neighbors.”

1000 Friends of Oregon was one of the groups challenging Measure 37 in court. Now, 1000 Friends is likely to challenge the side-effects of Measure 37 with one or more ballot initiatives for voters this November.

Elon Hasson, 1000 Friends’ government affairs director, tells New West Columbia Gorge that the group has five potential initiatives. They await titling permission from the courts, and 1000 Friends’ own strategic decisions in the next couple weeks, said Hasson. He said that 1000 Friends has three basic ideas it may pursue with the initiatives:

1. Protect neighbors’ property rights: By restricting governments from issuing Measure 37 waivers for projects that would harm a neighboring property owner — an issue on which developers and property rightists are very often silent. Measure 37 is designed to keep government from harming property rights, but that’s only half the equation, said Hasson. “Two wrongs don’t make a right. If your development is going to hurt somebody, we shouldn’t be doing that either.”

2. No special rights for corporations or developers: Property rights are for individuals, and less for corporations and developers. In other words, a second family home on your property, okay; 100 new condo units on the same property, maybe not. Said Hasson, corporations “shouldn’t be able to purchase violations of land use laws” by buying land.

3. A land stewardship compensation fund: By creating a conservation easement program, governments and voluntary sellers could set aside land with covenants that restrict future development. This proposal would be something of a halfway measure between conservationists’ planning goals, and property rights activists’ demand for compensation to offset lost development value.

So, while Tuesday’s ruling upholding Measure 37 was a red-letter date for the land right debate in Oregon, it is unlikely to be the last one.

About Dan Richardson

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3 comments

  1. Steven B. Andersen

    Dan, I’m not convinced that Robt Liberty is right. If a use next door causes health and safety concerns, it can be mitigated or denied. Measure 37 wasn’t about harming neighbors, as he would like us all to believe. It’s about fairness, period. Public hearings will still be required for those mega-lot developments and a public interest determination will still need to be made. M37 didn’t throw out the public interest, on the contrary, it assured it for ‘all’ the public, not just the squeaky wheels and members of various groups of “Friends.” Protection of property rights is a very important part of the public interest.

    The good the Oregon Supreme Court provided was restoring the urgency to fix the broken Oregon Planning System. The legislature can no longer skirt the problem. And there is a very big problem to be addressed. Your analogy of a wind filled sailing vessel is a good one. Thank the Supreme Court for it. The legislature needs to provide a safe harbor, and the Big Look task force needs to hire its own staff to assist them in
    providing the legislature with an objective chart.

    –Steven B.

  2. Stephen: Your second paragraph has me curious — you speak of a very big problem. Didn’t M37 address this, in your opinion? Are you conceding that that measure was perhaps too broad? Because you go on to argue that land use needs legislative revision, guided by the Big Look…which is exactly where I am on this issue…and, I think, some of the “squeaky wheels” are, too.

    (This is, I suspect you’d argue, due to the ground gained by M37 — leveraging a serious discussion, or negotiation. But a negotiation supposes that M37 has gone too far in itself; but that it served as a necessary shock or wakeup call.)

    Is there an agreement of sorts coalescing here, or I have I misread you?

    Dan

  3. Steven B. Andersen

    We are on the same page, Dan. Measure 37 is the catalyst that will stoke the fires of our up to now complacent legislature. This it cannot ignore.

    –Steven