I hate Measure 37. Other people love it. In between love and hate is where most Oregonians are, according to Richard van Pelt. He's a Friends of Marion County activist who likely has forgotten more about Oregon's land use policies than I know now.
Yesterday he sent me a thoughtful email about the Measure 37 reform effort embodied in HB 3540, which has passed the House and is to be considered soon by the Senate.
Richard had read a comment I'd left on Russell Sadler's Blue Oregon post: "The M37 clock is ticking. Extend it while we debate it." [second comment from the top]
I said that a better title would have read, "Suspend it while we debate it." It seriously bothers me that currently HB 3540 allows Measure 37 claimants to push ahead with their development plans, which includes large subdivisions on farm, forest, and groundwater limited land.
I'm still bothered, even after reading Richard's persuasive arguments concerning why a wholesale attempt to overturn Measure 37 wouldn't be wise.
This is markedly different from a suspension of building permits until the voters have had a chance to speak, which hopefully still will happen, with the aid of the Oregon Senate and a Republican or two.
Here's Richard's message to my wife and me, mildly edited for clarity.
I read with interest Brian's comments at Blue Oregon. Maybe I am too close to this to offer disinterested analysis, but I am going to take a stab nonetheless.
For the want of a nail, the shoe was lost; For the want of a shoe the horse was lost; For the want of . . . the kingdom was lost. For the want of a single vote in the House, substantive rejection of Measure 37 was lost.
True? Yes, but only in the narrowest sense. Outright rejection was a plausible outcome; whether it was possible, probable, or prudent are other questions altogether. To focus on rejection requires prudent consideration of other questions, other choices, and other options.
1. What are the consequences of a partisan outcome?
2. What defense, what justification could we mount in the face of an initiative in 2008?
3. What is the history of voter reaction to legislative rejection of initiatives?
4. Is there any evidence a 2008 initiative would be conducted on any higher level than the 2004 Swift-Boating of John Kerry?
Those of us who believed that Oregon is the product of the stewardship principles that are the foundation of our land use policies endured major setbacks with the passage of Measures 7 and 37. It is not for us to feel any shame for our values; to the contrary, it is more important than ever that we highlight those values in the coming months.
Oregonians are divided over land-use and have been so since SB 100 was enacted more than 30 years ago. Measures 7 and 37 passed because they aroused specious issues. Voters were convinced that something called property rights had been taken from property owners.
Property rights, takings, and perceptions of eminent domain dominate the debate. Lost in the discussion are those values that comprise our land-use goals. To even mention these goals is to risk being tagged as a communist (at least in the eyes of former State Representative Jeff Kropf).
Attempts to bridge this divide risk being termed demagogic when suggestions require some compromise or acknowledgement of problems by Measure 37 supporters. So far apart are we, and so unwilling are Measure 37 proponents to even engage in meaningful dialogue that no mutually beneficial common ground can be found. It serves no purpose for each side to hunker down in their respective trenches and hurl epithets at each other.
When such an impasse exists, we should not be surprised when a political solution is offered. HB 3540 is such a solution. HB 3540 is a partisan bill only because Republicans remain in thrall to the financial backers of Measure 37.
HB 3540 does not gut Measure 37. Instead, it folds Measure 37 into the land use program by providing relief to property owners adversely affected by land use zoning, precisely as Measure 37 intended. HB 3540 seeks to avoid the tragedy that would occur if there were an attempt at outright repeal.
Hubris is the overweening pride that lies at the core of tragedy.
Oregonians have that sense of overweening pride about the initiative process. The initiative process exists because voters saw the Legislature as an adversary. When the Legislature tampers with the perceived will of the people, the confrontation becomes even more adversarial, political, and irrational. Bad law then happens; the authors of the Federalist Papers would see such a process as justifying the system of governance they came up with.
On our side, it would be hubris to use partisan measures to reject Measure 37 without addressing the underlying concerns that property owners have. In the welter of rhetoric, some property owners have reasonable concerns.
Through neglect and our own hubris, we, over the years, let the vision of land use policy become driven by rules that, as I read them, are mere foolish consistencies. Our foolish or neglectful adherence to the pre-Measure 37 status quo has brought us to this point. Our own defeat and our own hubris require compromises that we might have avoided if we had acknowledged our imperfect system earlier.
This is the hard reality we have to accept. We lost with Measure 7 and we lost again with Measure 37.
Oregonians do not like to have initiatives thrown back at them. This is the hubris aspect - the people can do no wrong. You were not at the rally two weeks ago. There was an orchestrated protest by Ross Day at which Measure 37 supporters behaved more like louts than citizens. They clearly telegraphed their lack of any substance.
They could not even tell the difference between law and constitutional amendment. Ross Day was there and made no attempt to keep his dogs under the porch. And it is all on video.
Politically it would be disaster to refer the Measure back to voters. When the death with dignity measure was re-referred, even some who voted against the measure, voted in favor of it, just because it was an offense to their pride to have the initiative process questioned. Thus we are left with HB 3540.
If you refer the original measure back to the voters, all of the canards that led to its passage will be trotted out once again. We would lose once again. I know that Oregonians are not happy with how Measure 37 plays out on the ground, but I am not at all convinced that a gunfight at the OK Corral would turn out in our favor.
Look at the Bill from the perspective of someone trying to mount a reasoned campaign against its passage. Try to conceive a campaign that did not expose its greed. They don't like it because it tightens up on loss of value. The Bill makes what you can do hinge on the extent of the loss of value. This is not in Measure 37 and is the basis for all of the egregious claims that have been filed.
OIA (Oregonians in Action) is in a bind, and hopefully about to take their last drop. They cannot put anything on the ballot until November of 2008. I may well be in la-la land, but November of 2008 is not going to be a high water mark for groups, association with which would cause us to go home and take a long, very hot, shower.
There is a chance that we could get a moratorium and there is a chance we could get immediate passage. We were one vote shy in the House of being able to accomplish this. When the debate was taking place, the R's attempted to suspend the Rules; they lost and it was clear from then on that the D's had the votes. Significantly, five R's were either excused or left. Those who left represented areas for which significant second thoughts about the Measure are in play.
It was no happenchance that Macpherson focused on Clackamas County to show how bad Measure 37 has been. When the vote came down, at least one Clackamas County rep. failed to be there for the vote.
Now that it is out of the House, if we could put pressure on R's in the Senate, including Jackie Winters, we might get even more. I hope people call their Senators and tell them how happy they are with 3540. If they do, and if we can peel off an R or two, then we could amend 3540 on the floor of the Senate to make the bill effective immediately. It could then go back to the House where, with shown bi- partisan support, we could get the extra vote we need.
In the special election, you will see the following groups:
1. Those who despise Measure 37 and all that it stands for, preferring the world prior to 37 and 7.
2. Those who love Measure 37 and see no problem and that any meddling is a roll-back of the voters' will.
3. Those who voted against Measure 37, but see this as a workable compromise.
4. Those who voted for Measure 37, but find that the reality on the ground is not what they voted for.
5. Those who voted for Measure 37, but acknowledge that opponents have some valid points, and see this as a workable compromise.
Groups 1 & 2, so blinkered from the perspective of groups 3, 4, and 5, fall into the intransigent "strange bedfellows" category. Whatever are they to do? They cannot and will not work together.
Group 1 will appeal to group 3, while group 2 attempts to corral groups 4 and 5. Otherwise the two hard line opponents will be working to the same end.
Groups 3, 4, and 5 have common ground and will work on groups 1 and 2. That is, until they realize the intransigents are not critical to the outcome. The intransigents have marginalized themselves from the debate. Given the numbers, they are immaterial to the outcome.
This should be our strategy in the coming months: build a coalition of Groups 3-5. The way I read the Bill, I will have a sign in my yard saying "Protect Your Property Rights - Vote Yes."
WHAT THE BILL PROVIDES
HB 3540 is no longer about Measure 37. The people approved Measure 37 in order to correct what they were told was elemental unfairness in the land use system. Measure 37 ceased to be Measure 37 and became part of Chapter 197 of the Oregon Revised Statutes. HB 3540 does not repeal the language of Measure 37 now in the Chapter. The House of Representatives, in response to concerns raised by citizens and political jurisdictions passed a Bill that came out of a joint committee with a do-pass recommendation. It came out on a party line vote.
The amendments to Chapter 197 that this Bill provides are generous.
1. If you filed a claim, you can build up to three homes without having to justify loss of value. This provision galls many of us, but it takes many of the potential opponents out of play. It will also sit well with voters who had concerns about fairness.
2. If you want to build more than three houses, you have to establish a loss in value. You can build up to ten homes. You cannot build in excess of your loss. All of it is residential and lot size is driven by soil quality and groundwater availability. The language on loss of value will defuse many claims.
3. If you have already begun construction, you can continue under the common law vested interest standards. However, if you do, the property is not transferable.
The pivot concept in Measure 37 was loss of value. The loose language allowed property owners to set that pivot wherever they wanted. HB 3540 simply puts it where it ought to be - in the middle. The benchmarks are the year before the regulation and the year after. There has to be a 10% drop in value before a person can establish a valid claim. What they can eventually build is driven by the loss of value carried to the present day using the end of year T- bill rate.
Opponents who still think this is about Measure 37 should read the Bill. They will be hard put to state how the provisions in this Bill do not comport with their understanding of the provisions of Measure 37 without exposing their greed.
There are policy decisions in the Bill. It applies only to residential construction. It limits property size in order to preserve and protect the rural use of land for agricultural and timber use. It does not permit shopping malls, gravel pits, resorts. Supporters who thought in voting for Measure 37 that this was fair and good will get or should get little sympathy from the elected representatives; all I can say is that legislators on both sides of their respective aisles have been getting an earful to the contrary.
Most of the environmental community has taken a gag-and-accept approach. Following the floor debate, there were a couple of D's who had real problems with the Bill. They could have made left-handed speeches in favor, but did not. It is a disciplined caucus.
To conclude this all too lengthy e-mail, the Bill required compromise in order to get 31 votes in the House. With those 31 votes, it will be rammed down the throats of the R's. Hardball, but that is how politics is played. They tried to get a bipartisan product, but the R's remain in thrall to OIA, and to the real estate lobby. Now that it is in the Senate, a coordinated campaign showing how much Oregonians want this issue resolved, could make it once again a bipartisan product, that could be passed without referral to the people.
Your concern with the rush to development that could take place is well founded. "Common law vested interest" is more than a claim and more than a waiver. It is more than an architectural plan. It occurs only after final approval and after significant physical earth work had been done. And, should they proceed under this provision, anything they put up will be an illegal development. The product of their efforts will not be transferable; and I do not think the omission was inadvertent.