CANYON CITY - If you're having difficulty understanding Measure 37, the land-use policy change that won overwhelming approval by state voters Nov. 2. it might be because you've been reading too much about it.
"The more you read, the more you think you know, the more confusing it is," said Grant County Court Judge Dennis Reynolds. "I was in favor of it, but it wasn't written right."
There is no doubt that Oregon's land-use laws are in need of rewrite, Reynolds said, and he cited the case of a business in Tigard that wrangled with the city over a portion of its property the city wanted for a bike path.
The business offered the city the property for $14,000, which it considered fair-market value. The city wanted it for free and withheld a building permit the business wanted.
It took 10 years of court battles and $1.5 million of taxpayer money until the city finally paid for an easement across the property.
There are other horror stories caused by what proponents of Measure 37 say are unfair land-use laws, but the measure will likely cause more problems than it will fix, Reynolds said.
County Planning Director Hilary McNary put it this way: "Measure 37 is messy."
"The positive is that it helps protect personal property rights, which I'm all for that," McNary said. "But it does it in such a way that everyone is treated differently, and it's based on when the property was aquired; so neighbors will be living under two sets of rules."
When the property was acquired is a key provision of Measure 37. The measure makes the land-use laws that were in effect when the property was first bought, the only land-use restrictions the owner has to follow, regardless of what changes in land-use policy have ocurred since the original purchase.
This means that if someone bought land in 1980 intending to one day build a retirement home, they can now build the home even if current land-use policy prohibits it, because the laws in place when the land was first purchased allowed the building of a home.
If land next door was purchased last year, that owner can't build a home and has to follow current land-use policy.
Measure 37 defines family owned property back to grandparents; so if land is passed down within the family, the laws governing building on it date back decades before Oregon even had land-use laws.
There are hundreds of acres in Grant County that fall under that definition, and if one of the owners wanted to build a hog farm, there's not much stopping him, except, perhaps, money, since the burden of injury falls to the property owner.
It must be proved that financial harm is caused by the county's land-use policy, and that's up to the land owner to prove, which can cost a bundle.
The measure offers no clear way to do that, which probably means a field day for property lawyers.
Measure 37 adds a statute requiring government to compensate property owners if land-use regulations are passed that restrict the use of the property from the uses available at the time the owner or the owner's family took possession of the property and thus reduces the property's value.
If the government does not wish to pay, or cannot pay compensation, the land-use regulations can be waived for the parcel in question.
The measure does not include regulations for public health and safety, commonly recognized public nuisances, those regulations necessary to comply with federal law or for the purpose of selling pornography or nude dancing.
Oregonians in Action and its predecessors have been trying to undo Oregon's statewide land-use planning for some three decades. Led by attorney David Hunnicutt, OIA developed Measure 37 after the Oregon Supreme Court in 2002 threw out a constitutional amendment that was passed as Measure 7 because it contained more than one topic.
Under Measure 37, if a property owner disagrees with the conditions of a land-use regulation, and can prove it diminishes the value of his property, he can demand financial compensation back to the time in his family's ownership that the regulation was introduced. Or his property can revert to the land-use rules in force at the time he took possession as owner of the land, no further back than grandparents in the order of succession.
There are many effects on the value of property, most of which are out of the control of the land owner and for which no land owner, including Hunnicutt, would expect society or anyone else to pay compensation.
If your neighbor, under the guidelines in this measure, applies for and receives a zoning waiver in lieu of payment, and then proceeds to develop his property in a manner or for a use that devalues your property, even Hunnicutt admits you would not or could not expect compensation.
Other implications of this measure include
No process for informing the public when such claims are made or how they're handled, eliminating the court of public opinion from land use process;
Giving the length of ownership more weight in land use issues than other criteria creates a promise of inequity;
Creating a possible quilt-like pattern of land use rules, parcel by parcel, which will make controlled and logical development an impossible gamble for potential investors.
Measure 37 has major financial implications for county governments.
"We don't have the money," McNary said.
Which means that Grant County will likely waive its land-use rules and allow property owners to do just about whatever they want on their land - until a court decision clarifies things.
"That's what it's going to take, the courts," Reynolds said. "Do you think the Legislature will significantly change something that the people overwhelmingly voted for? It'll be the courts, probably up to the Oregon State Supreme Court."
However, Measure 37 contains a provision that says, "if any portion or portions of this act are declared invalid by a court of competent jurisdiction, the remaining portions of this act shall remain in full force and effect."