The rule of law

Russell Sadler

Marion County Circuit Judge Mary Merten James, was surprised when people started congratulating her on a “courageous” decision when she held Ballot Measure 37, the developer compensation initiative, to be unconstitutional. She thought it was a straightforward decision applying the precedents to a rather clear case.

It turns out the aftermath of the decision was anything but straightforward. A recall petition collected the required signatures in a week and now her career as a judge hangs in the balance for the simple act of doing her job.

Judge James is caught in the crosscurrents of events that have been gathering momentum for some time.

Over the last two decades nearly half the measures on the Oregon ballot wound up in the courts.

The reasons for the growing challenges to voter-approved initiatives are complex:

• a growing number of well-financed, national interest groups are unwilling to allow Oregonians their traditional independent, maverick ways. They support or oppose initiatives with their money only if they conform to their national agendas.

• a growing number of Oregon newcomers misunderstand the initiative is limited to exercising the legislative power of government. It does not trump the executive or judicial branches.

• lobbyists are buying their way onto the ballot bypassing the deliberative process of the Legislature for the emotional atmosphere of a media campaign.

• Portland and its suburbs increasingly dominate statewide elections on initiatives and is functionally disenfranchising voters in the rest of the state.

• some “spontaneous” initiatives push the limits of direct democracy in a country where state and federal constitutions guarantee a republican government.

• voter acceptance of decisions made at the polls is declining dramatically because so many disenchanted voters refuse to participate in elections.

• a national effort by Christian Republicans and right-wing conservatives to pack the U.S. Supreme Court by demonizing judges who make decisions they do not like, is trickling down to the decisions of state and local judges. The sponsor of Judge James’ recall, a self-described graphic designer, Tom Steffen, told The Oregonian, that judges' attacks on the Pledge of Allegiance, marriage and prayer were on his mind when James' decision came "screaming off the page at me.”

The Oregon Supreme Court is ruling on the constitutionality of initiatives with increasing frequency because the initiative process -- alone among Oregon’s lawmaking procedures -- lacks the checks and balances to determine or even permit consideration of the constitutionality of a measure before it is enacted.

With an initiative, any interest group hires its own lawyers, drafts its own measure and, if they can buy enough signatures, simply presents it to the voters with whatever advertising claims they think will sell it. Since the early 1980s, when it became legal to pay signature gatherers, a variety of interest groups have used the initiative as a private, parallel system of lawmaking specifically to bypass the checks and balances of the republican form of government. Some of these interest groups have deliberately pushed the constitutional limits of the initiative process.

Measure 37, for example, was a rewrite of Ballot Measure 7, a constitutional amendment struck down by the Oregon Supreme Court because it violated a long-standing requirement that constitutional amendments involve only one subject. So Measure 7 was recast as a statutory initiative to get around this limit. But Measure 37 arguably attempts to trump some other provisions of the Oregon Constitution. And, as any first-year law student knows, statutes don’t trump constitutional provisions.

That is what Judge James held. It was not a difficult case.

But there are a growing number of people who are not willing to accept the rule of law if the decision isn’t to their liking.

"All judges in Oregon will be reminded, 'That's right, we work for the people,' " Steffen told The Oregonian. "Public servants go against their employers at their peril."

This is “talk show” populist prattle and a shameless attempt to intimidate other judges.

Judge James will be up for reelection soon enough. That’s when her job performance should be evaluated. She may or may not have an opponent and voters can debate “judicial philosophy,” not whether the organized Christian Republicans liked a particular decision or not.

Fortunately, recall of Oregon judges is rare. Only three trial judges have been on the recall ballot over the last 20 years and only one has actually been recalled -- after he was censured by the Oregon Supreme Court for judicial ethics violations.

Polls show declining support for the initiative process as it is now practiced and a growing unwillingness to accept the results of initiatives because so many people refuse vote on them. People who want to retain the public’s ability to create initiatives ignore these changes in public opinion at their peril. Destroying the judicial career of a judge for simply doing the job expected of her is not going to win them many allies.

  • (Show?)

    Portland and its suburbs increasingly dominate statewide elections on initiatives and is functionally disenfranchising voters in the rest of the state.

    Something about this one has begun to bother me. Is it Portland's fault if the state's population center is here in the Willamette Valley? Is it Portland's fault if not enough people opt to live in other parts of the state to give those areas the population required to counter-balance the eastern urban population?

  • fournier (unverified)

    I'm under the impression that something like 70% of Oregon's population lives in the Willamette Valley, or at least on the I-5 corridor. Doesn't it makes sense that 70% of the population could "dominate" statewide elections and it would not be a matter of disenfranchisement? We do have the House and Senate which do represent those more "sparsely populated regions."

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    We do have the House and Senate which do represent those more "sparsely populated regions."

    I think the concern is with state issues and ballot initiatives, not with Congressional matters.

  • LT (unverified)

    We do have the House and Senate which do represent those more "sparsely populated regions."

    I think the concern is with state issues and ballot initiatives, not with Congressional matters. ~~~~~~~~~

    About those quotes: The Speaker, Maj. and Minority Leaders of the House are all from Metro counties--Multnomah and Clackamas. Maybe if we get geographically diverse leadership in the House as we have in the Senate (Sen. President from Marion County, Sen. Maj. Leader from Portland, Sen. Minority Leader from E. Oregon) that would do something to help the divide.

    But also, there needs to be more civic education. I know when I vote on a ballot measure that the result won't be engraved in the marble of the capitol, that statutes are subject to change by the legislature and anything we vote on is subject to court challenge. To have it otherwise might lead to excesses like trying to take the vote away from women.

    We must make sure that everyone running for office knows this. Not to mention those who push ballot measures. If the measures are written sloppily and the courts throw them out, that is the fault of the ballot measure author, not the fault of the judge.

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    Portland and its suburbs increasingly dominate statewide elections on initiatives and is functionally disenfranchising voters in the rest of the state.

    I disagree with that sentiment (which I think Russell is offering as other peoples' view - not his own.)

    To "disenfranchise" means to take away the right to vote. To take away the ability to influence the outcome. That's not what's happening in Oregon.

    No one has an inalienable right to win elections. American democracy is based on the notion that everyone has a vote, and everyone has the same number of votes (one). To win elections, you need to convince more people to vote for your cause.

    Of course, this notion that the nation and the state are split into hard blue and red voting blocs with sharp borders is a silly one. Democrats consistently win 25-30% of the vote in the reddest of the red counties, and Republicans consistently win 25-30% of the vote in the bluest of the blue counties.

    KERRY 2004: Baker 29%, Crook 30%, Curry 41%, Douglas 33%, Gilliam 33%, etc.

    BUSH 2004: Multnomah 27%, Benton 41%, Hood River 42%, Lane 41%, Lincoln 42%, etc.

    And of course, there's those Portland suburbs... Clackamas: Bush 50.2%, Kerry 48.9% Washington: Kerry 52.5%, Bush 46.5% Yamhill: Bush 57%, Kerry 42%

    Every county is a purple county.

  • David English (unverified)


    I agree with you, this is a case of the blame game. Clearly the authors of Measure 37 should have done a better job writing the measure.

    The recall attempt is a case of sour grapes by those that supported Measure 37. I also think it is not appropriate to blame the job for doing her job. Acting in this manner will tell judges one thing, either you rule in our favor or we can recall you. If that's the case, then I think it's possible that we'll see fewer good judical want to run for or be appointed to that office.

    It would be a shame if that happened.

  • steve schopp (unverified)

    """The recall attempt is a case of sour grapes by those that supported Measure 37.""""

    Sour grapes? The Dean of the Lewis and Clark law school has written that all four reasons the judge overturned M37 were nothing short of asinine.

    If this opinion is validated with an overturning of Judge James then she rightfully deserves to be recalled for traveling so far from law and reason.

    Most of you think M37 was horrible and the judge was spot on but that isn't enough.

    Frankly I can't understand how anyone can possibly think her rational was or will be valid. Despite the desire to have it sustained.

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    Brother Schopp,

    When The Oregonian published that piece it failed to mention that the Dean of the Lewis and Clark Law School has been an advisor to Oregonians In Action, sponsors of Measure 37. He did not give four reasons why Judge James decision was "asinine." He was defending an poorly written initiative he helped draft. Nothing wrong with that, but his arguments should not be confused with with an independent, dispassionate analysis of a judicial decision that we usually expect from a law school professor.

    I have covered Oregon courts for more than 30 years. You can argue with one or two of James rulings, but nothing -- nothing -- in that opinion is very far from the mainstream. And her main holding -- that a statute cannot trump a constitutional provision -- is first year law school stuff.

    On this blog, you are dealing with a informed, rather sophisticaed readers and you have to do better than partisan "talking points" to sell your opinion.

  • O'Conner, J. (unverified)

    Questions about the constitutionality of M 37 were around long before this ruling.

    Some legal scholars even agree with Judge James or at least don't find her opinion "asinine".

    I can't see the value in recalling a judge because you disagree with her legal reasoning or dislike the results of her decision. Judges get the law wrong all the time. Ever hear of a remand? That is why we have an appellate system.

  • paul (unverified)


    Honestly, I think your heart is in the right place, but your posts are internally contradictory. At the same time you celebrate populism and Oregon's "independent, maverick" ways, your post can easily be read as an attack on the very notion of the referendum and initiative. Do you support the initiative system or not?

    You may not like the reasons why attempts are being made to recall James, but your post implies that recall elections are themselves illegitimate--people should wait until the next election. Do you support provisions for recall of elected officials or not? For that matter, do you support elective judgeships or not?

    • voter acceptance of decisions made at the polls is declining dramatically because so many disenchanted voters refuse to participate in elections.

    Evidence? There is none. Oregon turnout has not been declining at all.

    • some “spontaneous” initiatives push the limits of direct democracy in a country where state and federal constitutions guarantee a republican government.

    Evidence? Why would this explain the increase in initiatives that have been brought in front of the Courts?

  • steve schopp (unverified)

    """""You can argue with one or two of James rulings, but nothing -- thing -- in that opinion is very far from the mainstream. And her main holding -- that a statute cannot trump a constitutional provision -- is first year law school stuff.""""

    Oh please, get over yourself.

    And perhaps you should reads more or take your "first year in law school" Or Over again if you already have a law degree.

    I have no law experience or education. But I am also not selling my opinion either. All four of her points are ludicrous and by extension would nullify more of the constitution than the M37 trumping in your mind, as well as effectively ban all zoning and other statutes.

    And again get over your """informed, rather sophisticated""" self.

    I have no desire to go through them all over again with someone so biased.

    When available, read the dean's submittal to the Oregon supreme court.

    From good sources, I have a fairly good idea what will be in it.

    It will not likely through your think skull but then you and I don't really matter now do we?

    And be nice.

  • LT (unverified)

    I live in Marion County. I will be voting against recall.

    I believe recall elections are for malfeasance in office (like a legislator caught doing something crooked). I am the granddaughter of a prosecutor who was both a state AG and appointed to a state supreme court. Telling someone like Russell Sadler he doesn't know what he is talking about is no way to get my vote.

    Now if you already think you know you have enough votes for recall and are pushing someone else to be a Marion County judge, be advised that I will not vote for any judicial candidate at any level who is supported by the people behind this recall.

    Bashing people just because they disagree with you doesn't bring people around to your side of the argument. Just as Bailie.

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    • voter acceptance of decisions made at the polls is declining dramatically because so many disenchanted voters refuse to participate in elections.

    Evidence? There is none. Oregon turnout has not been declining at all.


    Do not confuse turnout and voters acceptance of the results of the initiative process.

    Turnout and registration in Oregon was the highest it ever was when we had election day registration. When an initiative repealed that, turn out and the percentage of eligible voters registered dropped and has varied from that lower plateau ever since.

    Figures at at the Oregon Secretary of State's website.

    Acceptance of the results of intiatives is something else and the trends are not favorable to supporters of the initiative process.

    A growing number of Oregonians refuse to accept the results of decisions made in elections dominated by voters in the metropolitan areas of the state and where barely half the eligible voters show up at the polls. Many Oregonians feel their vote no longer matters.

    A poll published just before the November 1994 election showed 55 percent of the Oregonians polled thought voters ought to be able to vote on any measure that collects enough signatures to get on the ballot. In the same poll, 43 percent said there were too many issues on the ballot. Those who ignore the growing dissatisfaction claimed the poll was vindication of the initiative process.

    In similar polls 15 years earlier, 75 percent of those polled said voters ought to be able to vote on any measure than collects enough signatures. Less than 15 percent said there were too many issues on the ballot. These polls show declining support for the initiative as it is now practiced. The initiative cannot survive if only 55 percent of the voters accept it as a legitimate process for making public decisions.

    These numbers are from polls conducted by Tim Hibbets in the mid-1990s.

    More recent polls show the number of people who say the number of people who believe voters ought to be able to vote on any measure that gets enough signatures remains around 55 percent varying within sample error. So I'll stick by my original conclusion. The initiative cannot survive if only 55 percent of the voters accept it as a legitimate process for making public decisions.

    Steve Schopp writes:

    I have no law experience or education.

    That's obvious.

    You also have no respect for the opinions of others if you don't agree with them. Some of us have been around these issues and these arguments a bit longer than you have. You might benefit by listening while the adults talk.

  • steve schopp (unverified)

    Russell wrote, """"You also have no respect for the opinions of others if you don't agree with them. Some of us have been around these issues and these arguments a bit longer than you have. You might benefit by listening while the adults talk."""""

    So now disagreeing is showing disrespect? Perfect. Good one. How blue. But is that grown up?

    Yes, some have been around some issues longer than I.

    The same can be said about you and others as well.

    But regarding the James decision that doesn't carry any weight.

    On other issues there is much you can learn young feller.

    You haven't the slightest idea what you are talking about in judging my experiences, abilities, age or information sources.

    You're pretty damn presumptuous though.

    And you really should be nicer.

    Don't any of you have anything to say about Castillo and CIM/CAM?

  • (Show?)

    Portland's been dominating oregon politics, including initiatives, for a very long time. did M5 pass on the strength of Metro votes? that pdx and the valley have most of the people in the state makes this inevitable, and democratically justifiable.

    but living in Corvallis, a part of the valley but most certainly not sharing in many of the issues that afflict pdx, or at least with a set of issues that impact here much more differently than they do the Metro area), i have to say i'm more appreciative of the problem than when i lived in pdx. we still have not figured out how to deal effectively with the diversity of our state, primarily founded in geography more than anything else. that's why we have a constitution and courts: while the rest of us run around yelling for our way to win, judges step back and decide what the law says. using politics to overturn a judge is just wrong. you don't see BRO trying to recall judges. the right wing, and the selfish branch of the libertarians, don't like losing -- they hate not getting their own way. they have little regard for either law or the health of democractic politics and government.

    i hope the judge wins decisively, and i hope that sends a message to people not to waste time and money, to attack the foundations of democracy, but abusing the structures in our constitution that are meant to protect us from tyranny, not to force our views down the throats of judges doing their job.

    (and once again, thanks so much for the great input, russell. i always look forward to your posts.)

  • David English (unverified)

    I think it's ironic that Steve and those that support the recall of this judge won't consider the consequences if she is recalled. It is extremely short sided thinking on their part.

    As I said, I believe it's a slippery slope once you start recalling judges simply because you disagree with them. If vigilanties simply want to recall you, why the heck would you want to be a judge?

    Please answer that question?

  • sasha (unverified)

    Judge James thought her decision was a straightforward application of precendents? You say that with a straight face?

    Ok, well, if her reasoning is correct, that the legislature cannot limit its own powers, the obviously the minimum wage law is unconstitutional because it is indexed.

    If she is correct that M37 creates two classes of people who are treated differently, and is therefore unconsitutional, then obviously so is zoning, urban growth boundaries, and about a zillion other laws and regulations that treat people differently based on various factors.

    Judge James had a conflict of interest in this case and should have recused herself. There is a M37 claim within a mile or so of her house. She allowed one plaintiff standing because he had a M37 claim near his house.

    I love all you Bluers listening to the echo chamber tell each other that this decision was rational and valid. If it is, you better worry, because OIA and others can use its precedents to tear down pretty much the entire regulatory regime that the liberals have erected over the last 35 years.

  • steve schopp (unverified)

    """""""Please answer that question?""""""""

    It already has been answered but you twist things around to avoid what you can't face.

    You should resist making things up to fit your viewpoint.

    Everyone I have spoken to fully considers the "consequences". A judge who demonstrated incredibly poor judgment, swayed from the law and let personal circumstances buck her responsibility will no longer be a judge.

    In addition to sending a message to other judges who may be considering "abusing the structures in our constitution that are meant to protect us from their tyranny and/or forcing their views down the throats of the public.

    The difference in opinion here is who is the tyrant. Who is undermining democracy?

    All one needs to do is extend the judge's rulings to other similar statutes and clearly the judge has undermined democracy and weakened the power of the people to control their own government as outlined in both our State constitution and US constitution.

    The judge will be overturned and it will send a message to other judges not to waste time and money, to attack the foundations of democracy.

    Judges such as James represent a far more worrisome slippery slope then the voters and the initiative process.

  • NoLT (unverified)

    B!X - Funny thing you mention "is it Portland's fault" in a thread about land use. Yes. It's the currently land use system's "fault" that the center of population is clustered completely around Portland. Portland is a heavy weight in the statewide land use system. It was the way it was designed. Thats one of the big complaints about our system from the rural perspective is that local decisions are overturned by LUBA preventing them from growing a wider/higher value property tax base.

    LT - The measure is extremely straight forward. If a regulation reduces the property value (in essence if it could sell for higher because of its developable value) the original property owner should be compensated. All over the US this concept has support (some places not as broadly as "progressive" Oregon). Also - Metro recent plans to sell bonds proves that land use oversight organizations can afford to pay for M37 claims in the interest of striking a balance between long held property rights and land use advocates.

    Judge James Opinon on the other hand is not straight forward. Having read it (1000 Friends website has her opinion posted) it is way more complex than the Measure it shoots down. Just the fact that she acknowledges that "police power" doesn't exists and in the next sentence claims that police power and plenary power are synonyms is ridiculous. Either it exists or it doesn't and you don't allow a nonexistant legal figment overturn a legislative act.

    James essentially claiming that there is a public policy interest in land use so high that the legislature (the judge equates the legislature and the initiative process on the same level)can't reduce our land use system's force without a consitutional ammendment.

    When you create consitutional issues and rights out of thin air you are not being straight forward by any stretch of the imagination. Also, this right created by Judge James works in reverse of every Constitutional right I've ever heard of. Instead of guaranteeing a right to a citizen or limiting the power of government, the Judge claims government has a right to land use regulation. Constitutions aren't designed to protect government, they are designed to protect people.

    Keep telling yourself these lines - maybe one day history will sign off on it. As for the here and now, James decision is not straight forward.

    Oh yeah - I disagree with the recall but hey - that's democracy and if I lived in Marion county I sure would sign the petition to give the people a vote.


  • Becky (unverified)

    I think it is obvious just reading the argument that has ensued on this post that the issues in this case were far beyond first-year law school level. I think it is equally obvious that the arguments in favor of the judge's decision are being made by people who opposed Measure 37, while those who support the recall and believe the judge made a bad decision are those who supported the measure. Hello? Can't you all see your own bias and stop this infernal bickering? Rehashing the legality of the measure is a pointless intellectual exercise. It's really an argument about property rights. How about we start figuring out what we do about some very real problems we have - the problems that led to the passage of Measures 7 and 47.

    Please don't tell me that you would rather continue to argue such trivia as whether Portland dominates the political landscape of Oregon (duh), whether right-wingers want to control everything (duh again), whether the judge was biased (who isn't?), whether or not people ought to be allowed to recall a judge they think made a biased decision (if that's not Oregonian, then I don't know what is), whether the measure(s) were well-written, etc. instead of addressing the real problem. What are we going to do about the fact that too many Oregonians are being harmed by overbearing land use laws? I think any reasonable person could see that this is true to one degree or another. Nobody addressed the glaring problem of property taxes, either, until it was too late and voters passed Measure 5. What is it going to take for us to stop the bickering and start working together for the good of Oregon? With all the bright minds on this forum, one would expect a reasonable solution to pop up somewhere. Please, somebody, show some leadership and find a reasonable way to help Oregon families who are losing money they can't afford because of regulations which, if valid, should be financed by the state and not by the individual.

  • anonymouse (unverified)

    nowhere is measure 37 of bigger impact that washington county. you all see these stories in the beaverton valley times about this? I haven't seen anything like this kind of work put out anywhere else in the state -- and that includes the lethargic big O. not all the stories in the print version made it online for some reason, but they're all worth reading. big, pretty graphics, too.

  • (Show?)

    part of the problem with the arguers against the ruling, is that they don't appear to have read and understood the ruling's central points. To wit: "Ok, well, if her reasoning is correct, that the legislature cannot limit its own powers, the obviously the minimum wage law is unconstitutional because it is indexed."

    That's not what was declared. What was declared was that the right of ENFORCEMENT of laws in effect could not be abridged. Forcing a government to pay money in order to enforce a ruling it is legally able to make--or alternatively forcing it to NOT enforce it at all, is not allowed. per James:

    There is no question that the land use regulations themselves are valid, and no claim that the regulations rise to the level of a taking, which would require compensation. Instead, Measure 37 requires the government 6 to pay if it wants to enforce valid, previously enacted, land use regulations, i.e., it must pay to govern. This the legislative body cannot do, and the possibility that a later legislature could decide to repeal that condition on enforcement does not make it permissible. Such a limit on the power to regulate is a limit on the plenary power. If such a law were permissible, any party affected, in any way, by a regulation could seek to enact a law similar to Measure 37 that would require the entity that attempts to enforce the regulation to either pay the costs of complying with the regulation, or not to enforce the regulation.

    note also in this paragraph the clear refutation of another comment here: "The measure is extremely straight forward. If a regulation reduces the property value (in essence if it could sell for higher because of its developable value) the original property owner should be compensated." There is no claim that the regulations represent takings, sorry.

    One more example? Why not: "If she is correct that M37 creates two classes of people who are treated differently, and is therefore unconsitutional, then obviously so is zoning, urban growth boundaries, and about a zillion other laws and regulations that treat people differently based on various factors."

    Uh, the difference here is that M37 creates two classes of people UNDER THE SAME REGULATION. Zoning treats people differently in different zones, but if your property is zoned the same way as your neighbor's, you and she have EXACTLY the same rights and responsibilities under the law. Not so with M37, which takes two people under THE SAME REGULATION, and treats them differently based on the timing of their ownership.

  • Becky (unverified)

    Blah blah blah. On it goes.

  • (Show?)

    LT pretty much sums it up here:

    I believe recall elections are for malfeasance in office (like a legislator caught doing something crooked).

    An "activist judge" as defined by actual conservatives is one who ignores legal precedent and imposes her own views by making new and unprecedented law.

    A "conservative judge" bases all decisions on precedent in state and federal settled law.


    There are only two categories; as "liberal" and "activist" are synonyms.


    Bottom line? If the judge agrees with you, she is a conservative. If she disagrees with you, she is an "activist" and must be punished.

    All of these clever tools that are dreamed up by ethically challenged political ops can be used by all parties. Everybody gets to play. As I love to respond to my allegedly "conservative" friends as they applaud the carving up of the US Bill of Rights and the consolidation of power in the Executive Branch:

    "Remember that all of this power will potentially fall into the hands of President Clinton when your boy is a distant and distasteful memory."

    Be careful what you wish for

  • steve schopp (unverified)

    """""Uh, the difference here is that M37 creates two classes of people UNDER THE SAME REGULATION. Zoning treats people differently in different zones, but if your property is zoned the same way as your neighbor's, you and she have EXACTLY the same rights and responsibilities under the law. """""""""

    What a joke.

    Then how does the arbitrary switching of zoning for the selected few in SoWa (to allow 325 towers)at the expense of the neighbors mesh with this absurd thinking?

    "Exactly the same rights" my ass.

    On top of that they make the neighbors help pay for the towers infrastucture. I swear the double standard weaving through you folks is staggering.

  • (Show?)

    how is it arbitrary? And which properties under the new zoning regulation are not covered by it? (I'll give you a hint--none). In any case, all you have to do to get your property rezoned is apply to have it rezoned. Either the locality agrees, or it doesn't. What does that have to do with setting up a law specifically designed to help taxpayersIGNORE zoning ordinances, rather than seek to have them changed?

    Steve, are you standing up for the right of SoWa to remain as expanses of pavement and industrial detritus?

  • (Show?)

    Zoning changes are made all the time. Here in Gresham I am constantly seeing the signs out on a piece of property regarding a hearing on a zoning change.

    But the fact remains that everyone in that zone has the same rights. Those that live nearby, but are in a different zone, have different rights. Zones can change-- they're not set in stone.

  • LT (unverified)

    As I understand it, if there are 2 properties in the same area, here is how Measure 37 treats them:

    The family living on the same property for 50 years, or passed down from one generation to the next is covered by Measure 37 for owning the property before the regulations were put into place.

    The young family which came into some money (got good jobs, made good investments, inherited money, etc.) and bought the neigboring property within the last year or so are not covered by Measure 37 because they didn't own the property before land use regulations went into effect.

    That sounds to me like different people in the same community being treated differently the same way they have been under Measure 5. Check out the property taxes of 2 houses on the same block--one house has been owned by the same family for more than 30 years, the other house has changed ownership 3 or more times since Measure 5 passed. Are they paying the same property tax?

    I am just the average politically aware layperson, but my guess is that in both the Measure 37 and Measure 5 cases the family which bought the property within the last 24 months is not treated the same way as a family which has owned the property 24 years or more.

    That is the sort of detail that many who talk about "the will of the people" and other grand themes don't seem to want to discuss.

  • Joe Jackson (unverified)

    WE Californians share the problem of ballot questions, a process hijacked by money. The way out is to sponser a ballot measure prohibiting paid signature gathers. It was intended to be a public response to legislative inaction, return it to it's roots.

  • Becky (unverified)

    It is incorrect to describe Measure 7 (not Measure 5) as treating people differently. The measure would have treated all property owners the same - the land use laws in effect at the time they purchased their property would have stayed in effect until a) they sold their property or b) they were compensated for the loss of value that resulted from the application of those new laws on their property.

    It would have been a big improvement over the way things are today. Under the status quo, a property owner who is unfortunate enough to have invested in property that later is determined to have a valuable environmental resource located on it is treated differently than his or her neighbors who don't have that resource. Having accidentally purchased a valuable resource that no one will pay for, he or she must give up the resource that did indeed have a market value, and must do so without any financial compensation for the the lost investment, and must pay the costs of caring properly for the now public resource. The property owner thus is forced to individually donate and maintain a public asset, while those who benefit from preservation of the resource get it for free. This nonsense has gone so far that public access (including construction and maintenance of trails) has even been required at private landowner expense - talk about adding insult to injury! That is the problem nobody here will address. Why?

    Is there truly a hatred of the marketplace on the left? Has the environmental movement become so extreme that property rights, profit, value, etc. are now despised? If you find yourself scoffing at the idea that a property owner should not be required to just shut up and swallow the cost of preserving natural resources for the public, if you find yourself feeling that property owners don't really have any "right" to own a piece of sacred Mother Earth which belongs to us all, if you think that losing a "mere" $20,000 of value is no big deal for an individual property owner, if you assume all property owners are corporations, or if you think a property owner ought to feel honored to give up his or her investment to play a role in the preservation of the environment for future generations, then this really is a hopeless discussion because you really are hopelessly out of touch with mainstream Oregonians. Don't any of you own property? Have any of you had your property value destroyed by a regulatory taking? I have, and though I agreed the resource was important, I didn't feel I should have to eat the cost alone - or put in the public access trails through my back yard that Portland wanted at one point to require of me.

    If, on the other hand, you feel as the majority of Oregonians do, that public resources ought to be purchased and maintained by the public, then please, somebody, come up with a plan! Do something to solve this problem. If you don't, then your opponents will. You can't possibly believe that if you continue to ignore this problem it will go away. Who cares about the language of a thrown-out ballot measure? Why can't we get on with the real issue here?

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    Becky-- but on what basis do you claim that people have the right to be compensated solely for the change of law? If I own a car, and the legislature sets a new rate of tax for owning it, I have now lost value in my car by virtue of having to pay more for the privilege of owning it. Should I be able to get a rebate for that tax, based on the idea that my neighbor isn't paying the increase because they don't HAVE a car? Sort of defeats the purpose of raising the tax rate, if anyone who is negatively financially affected gets to be compensated.

    You try to dodge the issue by saying that they're treated the same, then allowing that there is a major difference between them: when they purchased the property. You gloss over this as if it doesn't represent a key substantive difference, as James pointed out.

    The whole concept of trying to argue that one should be exempt from the changing of rules because of that rule's negative personal impact, strikes me as bizarre. If my town votes to ban liquor sales on Sunday, do I get compensation from the town if I own a bar and 1/7th of my sales time is lost? If I run a gas station and the state legislatively encourages biodiesel production, do I get to sue for the increased competition? Arguing for compensation based on the negative impact of a new law is a rather broad and curious argument of personal exceptionalism.

  • Becky (unverified)

    Torridjoe -

    What if you and your wife, at the age of 24, stretched yourselves to your limits to buy your first piece of property - a gorgeous subdividable one acre lot with a 500 sf cabin on it, nestled in the woods by a creek with a clearing in the perfect spot to build a home someday. It cost you everything you could afford - you didn't have enough to buy another piece of property. What if after that, before you were able to build your home, the land use laws changed and you found yourselves (and now two kids) stuck in your 500 sf home with a mortgage to pay for property that wasn't worth what you owed on it and you weren't going to be able to buy another place or add on to your existing home because of the environmental regulations. What if further, the city decided that you had to pay to build a trail across your property so your neighbors could enjoy the natural resource in your back yard? Could you live with that? Is it fair or right on any level? Don't you think that you would be eligible either for compensation for your lost property value so you could sell the place to someone who would want to live there and still be able to afford a new place, or an easing of the rules so you could build on your own property? The point is not a simple matter of a "negative personal impact." "Negative personal impact" would be something like when Portland tells you not to plant non-native plants along creeks, or makes you go through environmental review to ensure you minimize damage when building on your property. This goes much further, to the extent that your property now becomes a public resource that you must share with others, rather than use privately as your neighbors use theirs. It's more like if the government decided since you have a car and your neighbor doesn't that you have to give him a ride whenever he wants and he doesn't have to help pay for your gas.

    I think you don't see it that way because you don't like the consequences of seeing it that way - it means the government can't get away with arbitrarily dictating every minute aspect of people's lives unless they have a good reason. Oh my god - that would just be awful, wouldn't it, if people had to use common sense when telling other people what to do.

    If you don't like the breadth of Measure 7 and 37, then come up with something that addresses the kind of real problems such as in my example without opening the door to all sorts of idiocy. It doesn't mean you have to get ridiculous and start paying people because their gas station is getting too much competition from environmentally responsible fuel providers (this is really the kind of nonsensical extreme scaremongering garbage, to be polite, that makes me want to scream; obviously, you don't want a solution, you just want to be disagreeable).

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    Becky, I would have to argue that it's you who doesn't want a solution; you just want not to be affected by the same laws as everyone else. I'm frankly not sure where you're going with this "trail across your property" thing; that has little to nothing to do with Measure 37's focus on development YOU wish to undertake but cannot.

    I'm sorry, I just don't see where you've got a beef with being impacted by new laws. If I am going to community college because I don't yet have the money to pay for full time tuition at a four year state university...but before I'm able to actually enroll in one, they raise tuition--do I get compensated for the increased cost of attending college? Of course not. Why? Because you don't get credit for doing something you haven't done.

    If you didn't even BEGIN to build a house on your land before the rules changed, tough luck. That's an obviously fair principle: You can do it while it's allowed, but once it's not allowed, you can't. Measure 37 wants to redefine that principle to cover the "well, I was GONNA do it" people. Value not realized, is value that doesn't exist. You don't realize value in this economy unless you actually build or sell something. With a new house on it or not, the property has no monetary value whatsoever until you find someone who wants to pay you to have it. The idea that you could be compensated for something you were merely planning to do, strikes me as absurd.

    As for solutions on my end: I'm not particularly opposed to rewriting some of the "offending" zoning laws to allow the development of a single family home, to be occupied by the owners for a given period of time (3-5 years, let's say). I'm also not opposed to recalculating the tax rate on a property that has had its theoretical value diminished by changes in development law. If your land is estimated to be worth $20,000 less based on the change, then it can be reassessed and taxed at the lower level. There's your compensation.

  • PanchoPdx (unverified)


    It's that "Bend-over-and-take-what's-coming-to-you-for-the-public-good" attitude that puts you so far out of step with the rest of Oregonians.

    If you think getting a M37 ruling (on fictional bases) is a victory, you got another think coming.

    The recall is unlikely to succeed because the people circulating the petition are amateurs without financial backing. I doubt anyone with resources will back their move, especially while this case is on a fasttrack for appeal. This recall won't make the ballot (quote me), but J. James' decision is not the end of this debate.

    It will either be thrown out by the Or. Sup. Ct. or overcome as M38, M39 and M40 clip the wings of Legislature's "plenary powers" to the point where new land use schemes will be unable to take flight without owner compensation AND voter approval.

  • Becky (unverified)

    I do actually understand you quite well, but it seems to me that you're not understanding what I'm getting at. Regulatory taking is more than impairment - it's telling someone they can’t use their own property according to the zoning decisions on which that person (and their mortgage lender) relied when purchasing their property, and then inviting the community to come and enjoy it without paying for it. Your college tuition analogy is way off - not even the same thing. Raising the tuition so that you can no longer afford college is not the same thing at all as saying you can’t go to college no matter how much tuition you are willing to pay.

    What I’m talking about cannot be understood unless you understand what gives property value. Land only has value if it can be used. If you pay $100,000 for a piece of property because it can be used to build a home, and then you are told the property cannot be used for anything other than to look at, so that now it’s worth only $20,000 (if you can find anyone to buy it), then you’ve had a loss. That loss is $80,000. An annual property tax cut from $2500 to $500 (or whatever) isn’t going to amount to any compensation, either (your off-handed “so there’s your compensation” comment was incredible). You’re telling me that it’s fair for someone to wait 40 years to get their $2000 a year in property taxes they didn’t have to pay for property they can’t use as compensation, never mind 40 years of inflation or the needs of real life?

    And by the way, contrary to the ridiculous scaremongering that people wanted to believe during the campaign, it doesn’t matter one whit that the house that could have been built on that property would have made it worth $1 million – your loss from the regulatory taking would still be only $80,000 because the house was never built. The measure never provided for compensation for potential profit had things gone your way, and I wouldn’t support that, either. I talked about lost dreams and unmet potential in my example in order to personalize the example for you, hoping to break through your mental barriers so you could imagine how this problem affects real Oregonians. I never said the un-built house should be part of the compensation.

    You're not getting the path thing because you apparently don't understand what's actually going on out there in the big wide world of environmental regulation and taking, where takings and demands for public access can go hand in hand. I said it was adding insult to injury because often they start by taking your use – your value – and then make you pay for a use you don’t want – public access – which benefits the community without their having to pay for it.

    Like I said, I don't have a problem with regulations that increase the cost of construction – such as environmental review, building codes, etc. It's a pain – like a tuition increase – but OK, that's life. But when the land that once had value can now only sit there and be looked at, it has been taken from you even if the deed is still in your name. It's like if you decided your kid couldn't ride his bicycle anymore. You would let him look at it. It would still be his. But he could never rid it again. I think he'd agree you took it from him.

    All I’m saying is if someone wants my property to be a public park, they should buy it from me or buy access and building rights from me. Those are legitimate, marketable assets that have value.

  • (Show?)

    "...then inviting the community to come and enjoy it without paying for it."

    Could you please explain what you mean by this.

  • Marvinlee (unverified)

    Becky writes of individuals losing property value due to unjust takings. Others purchased land before our laws reached their present extent. Some of those early buyers are unjustly enriched by land use laws that restrict others. My small piece of land goes up and up in because some later land owners are deprived of the full use of their land. Just because a law enriches me does not make it right.

    Judge James, is in her legal right to issue an opinion. If it is legal, as it seems to be, for aggrieved citizens to seek her recall, then that is also a lawful act. The ruling is likely to be appealed. I have no preconception of what the outcome will be. I read her ruling and found it interesting but not indicative of the full range of legal issues that came to mind. The law permits three kinds of responses to Judge James: Recall, appeal, and defeat at a future election. Citizens are within their rights to exercise any, all, or none of the above.

    As to initiatives in general, we are each bombarded throughout our lives by interest groups both strong and weak. When I sign or refuse to sign a petition, it is because I know what I am doing. I infer that other Oregonians also possess minds, reasonable self control, and the ability to think about what they do. I can disagree with them without perceiving them to be weak and susceptible.

    Several court rulings have hinged on the single issue part of the constitution. It is a troublesome point. As society grows more complex and entwined it becomes ever more difficult to frame petitions and laws that avoid touching on multiple issues. Resolving the tension between citizen rights and citizen conformance to the single issue requirement seems more an art of judgement than a clearly delineated constitutional statement. I doubt that the present court's ruling will be historically decisive.

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    For the record, I voted against measure 37. I also think it's a terrible idea to try and recall judges for political purposes. Recalls should be reserved for corruption or gross dereliction of duty. If Judge James has the law wrong, the appeal process will take care of it. If she gets the law wrong a lot, that's what elections are for.

    But surely there are people here besides me and the right-wing wackos who have some sympathy for Becky and her plea to work to make things more fair? She's undeniably right that our failure to take people's real grievances seriously led fairly directly to the passage of both measure 37 and measure 5.

    Unexpected government regulation can be a real blow to real people, who, as Becky has pointed out, are not all greedy developers looking to add to their already considerable fortunes. Of course, lack of regulation can have a similar effect. If everyone has total control over their property then that cabin on an acre could end up next door to a cement factory. I'm not sure how, or even if, we can better address the real problems Becky wants measure 37 to solve but denying that there are some real tough problems does not seem to me to be the way to go. New circumstances often lead to new needs for government regulation, how you accomodate that need and treat people as fairly as possible in the process is not an easy question.

    Torridjoe, try this analogy instead of your tuition increase scenario: What if, three years into a four-year degree program, the requirements were changed so that two-thirds of the classes you had taken could no longer be applied to the degree you were working toward. No grandfathering involved, you paid for the hours, you expended the time and effort to get good grades in all the classes but they just don't count any more. How would you feel about that rule change?

  • somethingelseentirely (unverified)

    How about this for the school analogy-

    You've got seven years into a seven year education chasing a PHD. Just as you reach the finish line and have all the credits met and even got your doctorate considered for publication. Everyone at your local department respects you and offers much moral support in your future endeavors.

    Then at the last minute while going through the formality of filing for graduation your told that "nope you can't graduate, sorry the standards have changed."

    You seek to appeal the standards set by your local campus of the statewide system but a higher board has ruled that these standards violate a statewide list of goals and therefore you can never have a PHD. Instead they will offer you another Bacheolrs - anything you want in the field of agriculture.

    This is more descriptive of what our land use system does to rural landowners.

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    anybody notice the utter failure of ballot measures to deal with these kind of complex issues? not one has worked, not in oregon or california or elsewhere that i know of. they are either written by a few people, who manage to make errors and neglect important aspects of the issue, or they are written to benefit a small class of people. they win or lose not based on the merits, or even the content, of the measure, but on the basis of the campaign that is run.

    this is why we have legislatures. they have the time and the resources to examine an issue in detail, to bring in comment from all segments of the polity, and to work out a solution that works optimally for everyone. if, of course, they do that. with minnis, ha; forget it. not gonna happen. and with this issue, the legislature ran and hid. so one group wrote another rotten ballot measure, ran a winning campaign, and now is faced with the reality that despite winning an election, their measure is just as bad as every other one that's come down the pike.

    there is no easy fix to this system. people will scream that the initiative system is uber-democratic, and then vote for measures being foisted on them by special interests with money to spend (cf: don mcintyre and M5). i think the one thing we can do, via the Commission on the Legislature, is move to annual legislative sessions with a professionally-funded leg. 6-8 month sessions every two years just ain't gonna cut it. if the legislature was due to meet in january, they could be dealing with this issue. the judge could rule that the Leg had to fix it -- which is exactly what should be going on. instead, the issue will be outside of the democratic process (i love the judiciary, but it's not democracy at work). we need our elected reps to be working on this, in conjunction with citizens; until that happens, this issue (and many others) will continue be unresolved and very messy & ugly.

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    Correct. Right now our legislature barely has the time to put together a budget and work on a few issues. Things really aren't set up for them to spend a good amount of time working on issues such as this, meaningful tax reform (so that corporations pay more than $10, we get rid of the yacht deduction, etc.), fixing how we fund education, and more.

    If we'd go to annual sessions, they could spend one year on budget related issues and one year on the other items. It also means they could have a staff that works on more than just being an assistant. Members of Congress work as an in-between for constituents with federal agencies. However, when it comes to state agencies they have very little weight and therefore typically forward them to state legislators. But the legislators don't have the time, money, or staff to deal with these issues.

    In Texas our legislature only meets every other year, for a term of 140 days. However, our legislators have a real staff and have an office in their district. And they're paid even less than legislators in Oregon-- $7,200 per year, or $14,400 for a two-year legislative period. Legislators receive a per diem personal allowance of $128 for every day the legislature is in session. This adds up to $17,920 for the regular 140-day session. Annual compensation for the year in which the legislature is in session totals $25,120 – which includes the $7,200 salary and $17,920 per diem allowance. For the biennial term, legislators earn $32,320, or a yearly average of $16,160.

    We really have to look at reforming the legislature not only in Oregon, but across the country if we want to see things getting better. Legislators need to be paid more (New Hampshire pays $100/year with mileage reimbursed) and we need longer legislative sessions-- preferrably meeting every year. These rules/amounts may have worked 50+ years ago (or 221 years ago in the case of New Hampshire), but things are a lot more complex than they used to be.

  • Becky (unverified)

    Jenni -

    When I lived in Portland and the scenario I described was happening to me and my husband, one of the things Portland was considering quite seriously at the time was requiring property owners along Fanno Creek to build a public access trail through their property. It didn't end up happening, but it was a close call. Also, the famous Dolan case was about the requirement to provide public access. I'm sure these were not novel ideas. Regarding a better compensated full-time legislature, I can't think of any reason not to. Some say the problem with it is the longer they are there the more laws they can pass and the more they can interfere with what people want to do. Maybe that's true, I don't know. But it would be nice if they had the time to deal with the real tough problems, including school funding, in a meaningful way.

    TA -

    I agree with you that none of the initiatives have worked, but they have helped to shape the public debate, and perhaps they can move us closer toward addressing the problems they point out. We have had legislative response to ballot measures before.

  • Sean Hudson (unverified)

    One argument that I have yet to see mentioned (though if anyone reading this has, please let me know): If I understand correctly, the core issue is the reduction in value of land, as if it is an investment. Using this logic, a person could file a grievance any time a government ruling affects a person's investments in a negative manner. For example, if you owned stock in a power generating company that used coal as a means to generate electricity, and the government mandated that scrubbers be installed on all smoke stacks; the resulting costs could negatively affect the value of that stock- resulting in a real loss to the shareholder. Under the logic behind M37 could a person then sue the government for loss of income. I've always been under the impression that there is inherent risk of loss anytime someone invests money in any thing. Be it land or stock or whatever. You play the game and take your chances.

    As for the recall; it seems a waste of time and resources. It used to be that if you didn't like the decisions made by an elected official, you campaigned to have them removed from office at election time by fielding your own candidate. The initiative process has become so abused that I refuse to sign petitions any longer. If the cause is a good one, people should volunteer to collect signatures. Paid signature gathering has subverted the ideals behind the initiative process.

  • (Show?)


    I have to apologize to you -- before your most recent post, I had assumed you were one of those folks who'd scream in favor of initiatives. We're more kindred souls that I'd have thunk!

    On state legislatures, three good resoures are the Nat'l Conference of State Leg website,, their monthly magazine (I think called "Governing"), and a professional journal, State Politics and Policy Quarterly.

    Let's hope the commission members get on here and post some of their ideas. I agree with Jenni and t.a., reform of the legislature is a critical task.

  • (Show?)

    I had a lengthy reply going last night before my PC scotched the whole thing, so (perhaps fortunately to y'all) I'll be briefer.

    Pancho fails to bring any substantive discussion, opting instead for evidence-less predictions and cheap shots, so that's all the time I need to spend on that.

    Becky, I have to apologize and say that while I'm sure your personal situation is important to you as an example of governmental overreach, I have to insist that it has almost nothing to do with Measure 37. M37 is about exemptions from land use restrictions, not protection from affirmative government use of eminent domain. Much as you want to use the term, what M37 is about does not involve takings. I do appreciate your description of how someone's land could be considered devalued, but I think it has a flaw: as I said, the value of property is zero until a transaction occurs. You can't say that 100K property is now worth only 20K because of the restrictions...unless and until you actually SELL the property for 20K (or whatever amount). So to ask for compensation based on loss of value--how is that computed? Just because you think it's only 20K, doesn't make it so, and in any case without a purchase you have little on which to stake your claim. It also doesn't take into account the theoretical value of unspoiled land, where no development can take place. Again, it's impossible to quantify any loss or gain until a transaction occurs--and apparently you want to be compensated now. Finally, I don't think my notation of property tax compensation was either offhand or incredible; it represents simply the fair and normal way of doing things related to assumed property value.

    Doretta, there ARE people who have sympathy for the process. I allowed that something might work out to allow property owners to build a single family home of scale that they then pledge to occupy for a certain period of time. That would take a zoning exemption, which--if legislated--I don't have a real problem with. But that's not what M37 does; M37 forces the locality to choose between paying for the privilege to enforce the law, or not enforcing the law at all, and that's wrong.

    As for the school analogy: any version that supposes the person is already in school when the rules change doesn't meet the comparison test to M37. If development was already permitted and construction begun when the rules changed, that development would be grandfathered in. That's not what M37 does, though--it allows development that people only claim they were THINKING about. So to try to compare that to a student 3 years or 7 years into his studies, the house would already have to be 3/4 built when the rules changed...and of course in that scenario the house would be OK to finish. I stand by the analogy, because in both cases the person wants to be compensated for something they never did (build a house/enroll in school).

  • Becky (unverified)

    Torridjoe -

    You write, "Just because you think it's only 20K, doesn't make it so, and in any case without a purchase you have little on which to stake your claim."

    Actually, you are incorrect here - appraisal provides solid ground for statements of value. Following the collapse of the savings and loans, largely caused by appraisals that dramatically overstated value, Congress clamped down on appraisers and we ended up with a certification system for appraisers and strict guidelines, known as the Uniform Standards of Professional Appraisal Practice. Today, appraisal is a very reliable determiner of value. Appraisers determine value every day using tried and true methods. They are so reliable that banks confidently lend based on appraisals - in fact, they require them. In case you haven't ever purchased property, even if you are a willing buyer, you cannot easily convince a bank to lend you the money to buy the property unless an appraiser agrees that the property is actually worth what you are willing to pay for it. Further, courts of law rely on appraisals on a regular basis. Additionally, an appraisal is required to obtain the property tax reduction, which as a matter of fact occurs on a standard basis (and did occur on the property we owned) and no sale is required in such an instance. Under your theory, no compensation could ever be paid for any taking of property because it would have to be sold first. We all know that has never been a requirement for compensation.

    You also write, "It also doesn't take into account the theoretical value of unspoiled land, where no development can take place."

    That's a lovely sentiment on your part but it is not how anything in our market-driven economy works. Who wants to find they have inadvertently paid ten times the market value for land that they are forced to protect for the benefit of the public at the expense of other investments that they could have used to put their kids through college or pay for their retirement? Who but the government (that is, the people) or a group such as the Sierra Club would buy land for the purpose of keeping it unspoiled for the benefit of the population as a whole? If people determine that land ought to remain unspoiled, it makes sense for that land to be owned by the people - the government - and that means the government ought to buy it. That does not mean they have the right to first downzone it, thereby removing all its market value, and then buy it for a dramatically reduced price. That is not fair or right in my opinion. If you feel it is, then clearly we can't agree, but I have enjoyed the debate and hope that others may be convinced even if you cannot.

  • PanchoPdx (unverified)

    TJ wrote:

    Pancho fails to bring any substantive discussion, opting instead for evidence-less predictions and cheap shots, so that's all the time I need to spend on that.

    Why would a prediction need "evidence"?

    The nature of a prediction is that you make it BEFORE evidence exists to confirm it - otherwise you are just reporting the news.

    BTW, am I the only one with a sense of deja vu here? Blue Oregon is once again pinning its hopes on absurd legal strategies because they don't trust the voters to endorse their worldview.

    That strategy worked wonders with SSM's.

  • (Show?)

    Becky--you raise fine points about the relative reliability of appraisals (although to say one is as good as another isn't necessarily true), but fail to note what we both know is true: appraisals don't mean much unless a transaction is afoot. In other words, the only appraisal that really counts is the one done when someone wants to sell or buy the property. Even to secure a loan for developing on that property, the appraisal that matters is the one done in a timely way relative to the transaction. Otherwise you have only ephemeral gains and losses to report, not real ones.

    So to make a long point shorter, what I want to say about value stands: you can't compensate someone based on value that isn't defined. If you bought at 100K, then 5 years later the rules change and the land is considered less valuable (to 20K say), how do you determine what part of the delta is due to loss of use, and what part is due to normal appreciation/depreciation? What if only 65K of the 'loss' is due to loss of use, and the other 15K is from simple depreciation? Or much more concretely in today's market, what if when the rules change your property is assessed at 150K? How do you propose to assess the lost value when the property is still worth more than you paid for it?

    Finally, to answer the question of who would buy land in order not to develop on it--my parents, for one. They purchased land in Virginia's Shenandoah Valley for the explicit purpose of keeping the land unspoiled and undeveloped. Maybe they'd put something as small as a 500sqft cabin down, but nothing to truly 'develop' the land. I think you underestimate the interest in preserving rural land, especially going forward as space becomes ever more dear. My parents visit that chunk of ground with nothing on it, several times a year.

    As for Pancho--sure you don't NEED to provide evidence for a prediction, but that only makes it easier to ignore. What I meant was that rather than simply calling the legal rationales 'absurd' and predicting their appellate demise, you MIGHT have offered a critique of those rationales, or expounded on the principles the justices might use in rejecting them. You did neither...again. Because of that, I have no reason to presume that you have any answer to why the legislative body can be forced to pay for the privilege of enforcing valid law, or alternatively pick and choose when not to enforce it. And that's just one of the 'absurd strategies' you never actually address.

  • (Show?)


    Mine is strictly a layman's understanding but I don't see that using appraisals for valuation is much of an issue. If the government uses emminent domain to take ownership of a piece of property they use appraisal to determine fair compensation to the owner. Those appraisals are independent of what the government intends to do with the property but not at all independent of what the original owner or another buyer would be allowed to do with it were the government not intervening. It's hardly an exact science and there are lots of practical difficulties but that is how it's done. How is doing two appraisals based on different potential uses fundamentally different?

    It is plain silly to say the value of property is zero until a transaction takes place. We seem to have been floating a large piece of the US economy for several years now with bank loans made on property that, by your definition, isn't worth anything.

    What was paid for the land is irrelevant. You are confusing the issue with the "investment" description. All you need are the two appraisals that define the change in value at the time the rule changes.

    It's also not necessary to go off the deep end with "then why don't we compensate people for everything the government does that changes the value of anything?" The answer to that is "because we don't choose to." We make laws all the time that treat one thing differently from another. We already have all kinds of other laws that only apply to real property.

  • Becky (unverified)

    Doretta -

    Thanks - and well-said.

    TJ -

    You wrote, "but fail to note what we both know is true: appraisals don't mean much unless a transaction is afoot." I don't know any such thing. I would suggest before you take on debates regarding property value and financial matters you get to know a bit about them first.

  • (Show?)

    Becky--nice condescension. If I'm selling a piece of property, no one is going to accept a 5-year old appraisal; they're going to do a current one. Which is another way of saying that perceived value has no meaning unless someone is planning to transact and thus create an actual value.

    Doretta--I should not have said the value is zero in one instance; what I meant to say (and did say in other places) is that the value is not defined. But the point is clear: the value of a property is not known until it is transacted, because value can only be expressed in terms of what was paid for it. Your example about eminent domain proves the point; the government is enacting a transaction wherein they are buying the property from the individual. But in any case, we're not talking about eminent domain here, and the fact that both you and Becky continue to define the discussion about M37 in terms that have nothing to do with M37, is confusing. We're talking about restricting use, not appropriating land.

    As for the reality of floated paper based on perceived asset value--that's what it is, paper. Wasn't it the President who asserted that all of our Treasury notes are just IOUs? He was crazy to suggest that the US might fail to pay them back, but he was right on principle: technically, they are not real assets, but proxies. That's what's happening here. The land has not changed, nor have the developed assets changed. Only the perception of value has changed, and yet that value is ill defined. You only know what a property is actually worth when it is bought and sold.

    "What was paid for the land is irrelevant"--Becky begs to differ, apparently, because her entire model was based on an initial transaction of 100K. Your view--that all we need is the appraisal from before and after--is complicated by the likely fact that most people won't have done appraisals immediately before a rezoning, and many localities wait years between appraisals, and never do them with anywhere near the detail that would be done for insurance or transaction purposes. So how is that fair?

    The main problem here is that people are not seeking money; they are seeking the right to not have the rule apply to them. Failing an exemption, they want money. But in that case, they want payment for perceived lost value--but again, that value generally only comes into play if and when the land is sold. You may claim you lost 80K in value when the rules were changed, but if you continue to hold the property for another 10 or 15 years and end up realizing actual profit based on what YOU paid for the land, it's impossible to quantify exactly what was lost.

    The bottom line is fairly simple: you can only do what's legal while it's legal. Once it's illegal you can't do it--and it's absurd to ask the government to pay you not to do it once it's illegal, or to selectively make it legal just for you. Things just don't work that way.

  • Becky (unverified)

    TJ -

    Your incessant arguing over nonsensical points is tiring, so I'll ignore it. However, you write, "we're not talking about eminent domain here, and the fact that both you and Becky continue to define the discussion about M37 in terms that have nothing to do with M37, is confusing." If you will re-read my posts from the beginning, the point I have been making, which you sidetracked, is that Measure 37 is dead, but the problems that led to it aren't. So what are we going to do about the real problems that led to Measure 37? Why are we wasting time debating the language and the applicability of Measure 37 when real people continue to be harmed? If we don't deal with that problem, another Measure 37 type solution will be put forward. If the left doesn't like what has been suggested by the right so far, they probably won't like what comes forward in the future; therefore, I think it would be a good idea for the left to offer some suggestions of their own about how to protect ordinary Oregonians from unintended consequences of well-intended land use laws.

  • (Show?)


    Your continued condescension and blithe dismissal of points that negate your mostly irrelevant arguments is tiring and unhelpful, which is why I won't ignore it. If you don't want to discuss the topic, what are you doing here? If you aren't willing to back up your claims, why are you making them.

    Where did you get the idea that Measure 37 was "dead?" Claims are being processed across the state as we speak. Last I heard, it was only enjoined in four counties. I did particularly enjoy, however, both the false arrangement of the sides of this discussion into "left vs right," and the thinly veiled threat that if "the left" doesn't accept Measure 37 or the ridiculous principle of paying people to abide by the law, "the right" is going to come up with and pass something worse. A rather bullying approach to conflict resolution, wouldn't you say?

    Finally, I find this truly ironic: "I think it would be a good idea for the left to offer some suggestions of their own about how to protect ordinary Oregonians from unintended consequences of well-intended land use laws."

    I've referred not once but TWICE to a possible solution that would allow ordinary Oregonians to create assets on their property for their own personal use.

    Where is YOUR solution? All we've gotten from you is carping about your own perceived slights at the hands of land use planners, that don't even have anything to DO with Measure 37. If you were truly looking for answers, you wouldn't be dismissing the discussion and failing to come up with any answers on your own.

  • Becky (unverified)

    TJ -

    I think everyone here BUT you probably knows I already have offered a solution. Interestingly, the majority of Oregonians agreed, but alas, the Oregon Supreme Court didn't like multiple subject problem that arose as a result of a certain specific clause it contained about adult-oriented businesses (incidentally, that was inserted over my objections).

    I don't want to discuss the "topic," as you say, because after all the times this subject has come up, all it seems the folks on this site want to do is nitpick the specific language of Oregonians in Actions' problematic follow-up to Measure 7, or the language of the judge's decision, or whether or not the people ought to try to recall the judge (can you change that?), or whether the voters REALLY understood what they were being asked (who could know that?), or enter into broad discussions of how great the environment is and why we should protect it (an obvious statement that doesn't help us address the specific problems that arise in the process). Please, somebody stop it! We're spinning our wheels while real Oregon families are losing everything.

    I'm just so tired of the whining and the debating and the bashing of proposed solutions and those who propose them instead of anyone here offering a legislative solution they can live with to the very real problems which, in the many previous discussions on this topic on BlueOregon, many here have agreed actually do exist. Alright, already! The whole world knows that the Democrats don't like the extreme approach of Measures 7 or 47. So what WILL work for you? As I've said before, it reminds me of the property tax arguments of the '90s. All we heard was how horrible the ballot measures that were put out there were. Meanwhile, why didn't the left acknowledge the problems being faced by some Oregonians and propose a solution of its own instead of ignoring it for so long? It's not like Don MacIntire was the first person to point it out. Why won't the party that claims it is for the people instead of the corporations watch out for the people on these matters instead of always siding with the government (a lumbering, emotionless bureaucracy that often isn't much better than the corporations, in my opinion)?

    Regarding my "threat" (as you mischaracterized my observation) that the right will come up with something "worse," I'm not threatening anything. I'm simply pointing out a fact that I feel Democrats ought to consider instead of wasting their time carrying on with the pointless debates about a measure that, unless your head is buried in the sand, you know is dead, or that only rehash the same thing that everyone has been saying endlessly for the past six years. I will admit I'm just too close to the issue so my tolerance level is very low. I'd just like to see the acknowledgement I have seen from some here that something needs to be done turned into an idea about how to do it, or at least a call for our Legislature to get it taken care of.

    I won't apologize for the condescension over your blustering, overconfident attitude, despite your egregious lack of knowledge, though I think you missed an additional flavor - disgust. That's how I feel and I'm glad it's come through clearly.

    You'll be glad to know, I'm sure, that I'm done with this whole topic - few things (other than child molestation and meth) get me this riled up. Anyway, I've said all I wanted to say, so I'll leave it at that.

  • (Show?)

    so to sum up, you've left, having:

    a) declared dead an initiative which is still in effect for most of the state b) declared it dead in opposition to Pancho, who claims James' ruling will be thrown out at the first available opportunity c) decried all the whining and crying without real purpose, while 1. whining and crying about the perceived intrusion upon you 2. offering no suggestions or solutions yourself 3. completely ignoring the suggetions made by others d) proudly failed to address the key problems with M37 stated here e) (again proudly) acknowledged poor and unproductive behavior here that you somehow feel entitled to, perhaps because since you won't offer suggestions or address those of others, it's all you have to offer

    and to think you might have viewed your time in this thread as unproductive!


  • Becky (unverified)

    TJ - Wow. It's as if you've had your hands over your ears while singing "la la la la la - I can't hear you - la la la!" at the top of your lungs and then stated no one said anything while you were doing it.

  • (Show?)

    I'm just catching up here, but I found this comment from Becky (on 12/12 at 2:08) interesting:

    What if further, the city decided that you had to pay to build a trail across your property so your neighbors could enjoy the natural resource in your back yard? Could you live with that? Is it fair or right on any level?

    Becky, Becky, Becky.... you're betraying the confusion that the M37 supporters rely upon. If the city builds a trail across your land and declares it public, then they have to compensate you - even before Measure 37. In fact, that's EXACTLY the situation in the Tigard Oregon case that went to the Supreme Court - and the family won against the city. (It was admittedly a touch-and-go case, but the Supremes came out in favor of calling it a taking.)

    Under the US Constitution, true takings are already compensated - and have been since the dawn of the Republic. It's calling a new regulation a taking that's at issue here.


    Personally, I'm pretty annoyed at the new anti-spam laws. I used to be able to spam everyone in Oregon and charge clients for the service! Now, they've taken away my right to earn a living sending unwanted political spam. What office do I go to for my compensation check? :)

    OK, back to reading the rest of the TJ vs. Becky debate.

  • gary (unverified)

    TJ- How many teaspoons to one tablespoon?

  • Steve Schopp (unverified)

    """""If the city builds a trail across your land and declares it public, then they have to compensate you""""""""

    That's old news and routine condemnation Kari and the Dolan case was never touch and go. It was the city's condemnation without compensation overturned by the SC. The city attempted to extort land by withholding a building permit.

    What M37 remedied, among many other takings, was more like if a city designated a wildlife trail across your land and prohibited any structures or use and did so without compensation.

    Obviously many blues think this is peachy keen but is nonetheless a takings by prohibition and very unequal treatment.

  • (Show?)

    gary-say what?

    steve schopp--you have some odd conceptions about what M37 remedied. You seem to think it had to do with takings, which were not at issue under M37 whatsoever. Nothing is being taken by the public in covered cases. To take means, y'know, taking something. Until you redirect your attention to the actual measure, no wonder you're going to be confused by what you read here.

  • PanchoPdx (unverified)

    TJ wrote:

    "Nothing is being taken by the public in covered cases. To take means, y'know, taking something."

    That's a hoot, nice play on words TJ.

    I suppose it must be equally true that threatening to burn down a newspaper's offices because of their position on the war shouldn't be considered an attempt to chill free speech because obviously fires don't chill things...

    M37 was all about takings. If the gov't restricts your property rights, it essentially TAKES them away from you. Even the US Supreme Ct recognizes that at a certain point land use regulation can have the same effect as a physical taking.

    What's the difference between the state granting itself an easement for the use of wildlife for 300 feet from a streambed on private property and the state requiring a 300 foot setback from that same streambed by prohibiting any use incompatible with the local ecological balance?

    The difference is that (before M37) the state would have to pay for the former but probably not latter.

    M37 just reduced the threshold for a regulatory taking to occur. You don't have to show that nearly all the economic use has been removed from a parcel before a taking is recognized.

    <h2>TJ, your steadfast unwillingness to deny the obvious is astonishing (almost creepy).</h2>

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