Measure 37: An endless tide of lawsuits

By Audrey Van Buskirk of Portland, Oregon. At the moment, Audrey is the communications director for the Take a Closer Look Commitee.

Measure 37 would be a disaster for Oregon. No one can say exactly how it would work, but it would be complicated and costly, draining millions from Oregon’s already strapped public services and gutting the regulations that have protected Oregon neighborhoods and farmland from sprawl and unchecked development.

Measure 37 would force more than 300 local and state governments to create expensive, unknown and cumbersome systems to determine which laws were in place for different parcel of land at the time they were last purchased or inherited. Then, these governments would need to decide whether to waive the current laws or decide to compensate the property owner for the difference in value.

Even if jurisdictions could track which laws apply to which parcels, taxpayers would be burdened with an enormous new layer of bureaucracy. The State Treasurer and Secretary of State estimate the cost to taxpayers for the administration alone would approach $344 million each year, and the measure provides no revenue source. Legal challenges to the measure will likely cost millions more

Because Measure 37 includes no new revenue to cover administrative costs or payments to landowners, governments are more likely to choose to waive or repeal important community protections rather than pay claims. If the measure passes, urban sprawl will accelerate with weakened Urban Growth Boundaries, and protection of farmland and forestland will be eroded.

Neighboring property owners would be bound by different regulations. One landowner might be able to develop their property under 1968 rules, the guy next door might be under no rules at all, someone who bought their property last year has to follow current law. Measure 37 offers no help to property owners harmed by a government’s decision to allow development on a neighboring property. It could lead to endless tides of lawsuits from neighbors affected by neighbors affected by the measure. It also eliminates the requirement that governments notify neighbors when certain property owners develop their property.

Oregon would become like other states with no tools to protect world-class agricultural lands and scenic areas. We would lose our ability to plan for growth.

Measure 37 creates tremendous uncertainty for all property owners about how our homes, neighborhoods, farmlands and open spaces will ultimately be affected. Measure 37 would weaken our economy and our communities and cost millions that the state doesn’t have to spend.

Please take a closer look and join the wide coalition of county farm bureaus, small and large business owners, property owners and the League of Women Voters and vote NO on Measure 37.

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  • Binx (unverified)

    It's sure an odd political marriage when farmers and environmentalists are all on the same side. I guess that just tells us all how bad Ballot Measure 37 actually is.

    After reading the measure over, I'm struck by how the property rights advocates are really pulling our legs.

    They say 37 is all about "compensation." There's no money in the measure, and everyone knows -- even the zealots who brought us this measure -- the state and local governments are fiscally strapped.

    So that's why they've put in the part about allowing governments to waive the "offending" land use regulation, instead of paying off the owner, allowing the owner to violate the law. They can then go ahead and develop it in any way that was allowed at the time the owner acquired the property -- however long ago that might have been.

    And that's exactly what these guys want. They want to blow up Oregon's land use system. Anybody buying property recently is SOL -- because they can't do the same thing with their property that their neighbors can do, plus, they'll have to live right next door to the consequences.

    In the definitions, laws regulating timber practices are defined as land use decisions. That will mean that anyone who acquired timberlands before timber practices acts were adopted can scrape the hillsides bare, without regard for slope, riparian, and other limitations. I guess that's why some of those timber guys are bankrolling the whole deal.

    So tell your friends and neighbors. The guys behind this mesure lard their rhetoric with words like "fairness" and "just compensation." But they know fully well that nobody's going to get a nickel.

    Behind the rhetoric is their long-harbored, disturbed dream of unbridled development for all.

  • Steve (unverified)

    Sorry, I read the comment: So that's why they've put in the part about allowing governments to waive the "offending" land use regulation, instead of paying off the owner, allowing the owner to violate the law.

    I think the issue is when government decides to change zoning to deprive people of property rights. Calling zoning law is technically accurate I guess, but I think we really need to address someone, for example, who will now have a gondola running above their house 24 hours in the South Waterfront.

    Basically the City of Portland worked this deal without any input from said homeowners and got the blessing from OHSU and some big developers (a la Homer Williams) and now is paying for this amusement park ride that makes small property owners lose value, yet enriches developers and OHSU.

    I really wouldn't worry though, even if it does pass, I am sure someone from the state will go judge shopping and get some state judge to find a minor rule that applies only to this measure and then throw it out.

  • (Show?)

    This is a great article, and I wish it had appeared just as ballots were coming out--a number of people have asked me why specifically this measure sucks. Audrey's hit a good half dozen major points here, any single one of which is enough to cast serious doubt.

    A question for Audrey: of the several possible unitended side-effects you identify, which do you think is (are) most likely?

  • Binx (unverified)


    Portland's goofy decision to move forward with the gondala, troubling as it is, does not fit within Ballot Measure 37's definition of a "land use regulation." Accordingly, there's nothing folks in the Lair Hill neighborhood can hope for if 37 passes.

    And, while there are a number of legal issues that I can think of (e.g., an equal protection challenge), 37 is statutory, not a constitutional amendment like it's predecessor Ballot Measure 7 in 2000. So, the proponents' claim, the legislature can fix the many problems 37 creates.

    That's pretty funny. I guess the legislature's track record the last couple of years provides some assurance that they'll speedily clean up the mess.


    In my view, the two likliest outcomes are these.

    Should 37 pass, every city, county, regional government (Metro) and state agency responsible for land use regulations and statutes will have to immediately begin spending up to $344 million to implement the measure. And that price tag is expected every year.

    The guys who bring you 37 say it won't cost anything because governments will have no choice but to waive the regulations.

    That may be true regarding "compensation." Government might be able avoid the billions of dollars that that would cost. (Which, as I said previously, really makes one wonder why they keep saying that 37 is all about "compensation" when even they admit there won't be any.)

    But even before compensation questions can be answered every government will have to adopt procedures, create the necessary paperwork and ordinances, hire or reassign bureaucrats to do the work. That will include checking each claim submitted, ensuring ownership, checking the date of acquisition, determing exactly which land use regulations were in place whenever the property was first acquired, try to figure out what is the alleged decline in value, caused by regulations adopted since acquistion, and then hold hearings to make a decision as to whether payment is warranted (and possible) or if the regulations should be waived. And since the remedy 37 gives to every single property owner in the state is to take their city, county, regional government, or state agency to circuit court, one can imagine that governmental legal costs will skyrocket. Finally, I imagine there would be oversight and follow-up costs to ensure that the owner is violating only recent regulations, and not the regulations that were in place at the time they bought or inherited the property.

    So, increased costs are guaranteed. That'll either mean more cuts than we've seen in recent years or attempts to increase taxes or fees.

    The other likely event, as the sponsors of 37 admit, is that government will start waiving land use regulations.

    Within a matter of months, should 37 pass, owners can begin developing their property any way they want -- as long as it was allowed when they acquired their property 10, 20, 40, or even 80 years ago.

    So, begin to plan for cuts in all government services, including police, fire and schools, since significant new revenue is a long shot.

    And start doing some research of your own. For example, when was your neighborhood zoned residential? How far back in time do you have to go to find when laws were adopted that prohibit commercial or industrial development? Or, for that matter, height limitations, set back requirements, etc.? Now take a mental walk around your neighborhood and try to determine when your neighbors first acquired their homes.

    While few of your neighbors really would consider putting in a 30 story highrise condo development, how many might consider a 24 hour convenience store? Or a manufacturing plant? Or an auto-wrecking yard? Or allow someone to put in a cellular tower? Or a WalMart?

    I don't think we can afford 37.

  • Audrey (unverified)

    Sorry I didn't answer this question earlier. We're working hard at the campaign. I think one unintended consequence of the measure would be that lawyers would have a field day because the measure is so poorly written it's extremely unclear how it would work. Rather than "restoring fairness" as proponents claims, the measure raises many more questions of fairness for neighbors affected by the results of Measure 37, say, farmers who can no longer farm because there's now a development or superstore next door. And of course the so-called "Family Farm" Pac behind Measure 37 probably claims they don't want to drive farmers out of business yet, according to the many farmers and farm bureaus supporting no on 37, that would almost certainly be a result if Measure 37 passes. Thanks for everyone's attention to this issue.

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