Well, it's going to be a long, lying summer. And fall.
Legislation to fix the seriously flawed Measure 37 has been referred to the voters. It'll probably be on the ballot in November. From now until then Oregonians in Action will be spewing out lies about House Bill 3540-C.
I don't know how these guys can live with themselves. Their web site shamelessly features garbage about the Measure 37 fix. I don't know who writes this crap. Pretty clearly, no one who's actually read and understood HB 3540-C.
Which I did this morning. All twenty-four pages of the engrossed version. Not easy going. But not all that difficult to understand, unless you're purposely trying to mislead the public, like Oregonians in Action seems to be.
By contrast, 1000 Friends of Oregon has a decent Governor's office summary of HB 3540-C. I've massaged this PDF document into a Word file, and also included it as a continuation to this post. Download 1000_friends_of_oregon_summary_of_hb_3540.doc
After reading the actual legislation and perusing the 1000 Friends summary, I'm prepared to call out Oregonians in Action with a big loud Bullshit! Here's what OIA says and what the truth is:
Bullshit #1. OIA says:
If you have filed a Measure 37 claim, HB 3540C requires you to start all over again. Your claim, along with the time and money you've spent, will be wiped out, unless you can vest your rights to use your property before December, 2007.
No, that's wrong. I heard Lane Shetterly, director of the Department of Land Conservation and Development (DLCD), testify before a legislative committee that Measure 37 claims won't have to be refiled. Some additional information may be required of claimants, but that's a far cry from being "wiped out."
HB 3540 says that claimants will be sent a notice that explains their options, identifies any information that the claimant must file, and provides a form for the claimant's use. Tell me how that is "starting all over again." No filing fee will be required, so far as I know.
The fast track option in HB 3540 (see below) doesn't require any proof of loss, which makes it much easier for claimants than the current Measure 37 law. And it includes transferability (as does the conditional path), which makes getting a construction loan viable. Thus this reform measure helps claimants as well as neighbors.
Bullshit #2. OIA says:
If you choose to refile your Measure 37 claim, you will be limited to a maximum of 3 new homesites, and you might not even get these! LCDC will decide how many homesites you qualify for, if any, will tell you where those homesites will go on your property, and will not allow homesites larger than 2 acres.
Again, wrong. There are two options open to those whose claims haven't vested (that is, who haven't made substantial progress on developing their property): an Express Lane and a Conditional Path.
The Express Lane is a quick and easy route to up to three home sites, counting any home(s) already on the land. All you have to do is show that you had the right to have that many houses when you bought the property.
So the only way you won't get those home sites is if you don't have a valid Measure 37 claim. If you want more than three, you've got to head down the Conditional Path.
This allows up to ten home sites, with a maximum of twenty statewide for anyone with multiple claims. To qualify you've got to prove that you've lost value because of a land use regulation(s). A qualified appraiser will determine how much your property was worth a year before the regulation was enacted and a year after.
The difference, adjusted for inflation (via the Treasury Bill rate), is how much you get to be compensated. Thus it isn't DLCD (which OIA calls LCDC) that determines how many home sites you qualify for, but the appraisal. If it takes six home sites to make things right, that's what you get; if ten, you get ten; if none, you still get three by heading back to the Express Lane.
If a Measure 37 claim is on high value farmland/forestland, or a groundwater restricted area, it's limited to three home sites. Only in these cases is a home site limited to two acres—not otherwise. In such instances home sites have to be clustered to maximize suitability of the remaining land for farm or forest use.
It's a stretch to say that this means DLCD "will tell you" where to put your home sites. The legislation does that, which will have to be approved by the voters. If they want farm and forest land protected, Measure 37 claimants will have to respect the will of the people. Isn't that sacred to Oregonians in Action?
Bullshit #3. OIA says:
If you have industrial or commercial property, or if you want to make a commercial or industrial use of your property, your claim is wiped out, and you get nothing. Not only that, you lose all protection against new land use regulations. It will be back to the old days, where your property could be taken without any opportunity for you to do anything about it!
It's true that the Measure 37 fix doesn't allow for commercial or industrial claims. Gosh, you won't be able to put a convenience store or a gravel pit on your farmland. Sorry. But this isn't a "taking" of your property. It's a "giving" of livability to your neighbors.
Further, there's a big misconception that land use regulations always reduce the value of a piece of property. Several research studies have shown this isn't the case in Oregon. Read the truth here and here.
The prohibition only applies to industrial/commercial claims that are unvested. Claimants who've vested their rights as of the effective date of the measure (likely 12/6/07) can proceed with commercial/industrial uses.
Bullshit #4. OIA says:
If a new land use regulation is adopted that takes your property, you will have to pay for lawyers and appraisers and jump through every hurdle the state and county can throw at you to get your property back. But what's worse, you will also have to pay for the state and county's lawyers and appraisers to try and defeat your claim! That's right – they'll take your property, and then charge you tens of thousands of dollars to give it back!
Again, what's up with "takes your property"? A land use regulation doesn't take property any more than an IRS regulation takes your bank account, or a red light takes your time.
Earth to OIA: we live in a world of limits. Nobody can do exactly what they want to do, all of the time. Grow up. Bawling babies want everything done for them now. Part of becoming a mature human being is recognizing that, as the Rolling Stones famously put it, "you can't always get what you want."
Yes, HB 3540 sets out a process for filing new claims. If you want 4-10 home sites and go down the Conditional Path, you'll have to pay an appraiser. But the cost of the appraisal, up to $5,000, can be added to any loss you've incurred from a land use regulation—so you'll be repaid in the end.
There's no requirement to hire a lawyer. And I have no idea what the frothing typing fingers at OIA had in mind when they wrote about a claimant having to pay for the state and county's lawyers and appraisers. Methinks this is just throwing the B.S. out into cyberspace and seeing what will stick.
I hope, very little. I'm confident that this time around voters will see Measure 37 for what it is: an attack on what we Oregonians love the most about our beautiful state. Cities that are cities and rural areas that are rural—not sprawl that sprouts subdivisions on irreplaceable farm and forest land.
HB 3540 isn't perfect. Not by a long shot. I would have been much happier if the legislature had fixed Measure 37 directly, rather than referring this bill to the voters.
But it's a heck of a lot better than doing nothing. Ignore the lies of Oregonians in Action. Get fired up to vote "yes" in the fall.
Governor's Office summary of HB 3540:
House Bill 3540-C Offers the Voters a Better Measure 37
-- Make it easier for claimants to gain approval for home sites previously allowed on their properties.
--Provide certainty for claimants who gain approval for home sites (transferability).
--Make sure large claims document a loss in value that justifies the number of the new home sites requested.
--Minimize lawsuits over ownership rights and impacts on neighbors and communities.
--Preserve farmlands and forestlands for agriculture and forestry, and protect scarce groundwater supplies.
--Clarify Measure 37 going forward.
--Create an "express lane" for claimants to develop up to three home sites.
• What they must prove: That they had the right to develop the home sites when they acquired the property.
• What they get: Up to three home sites; no less than one dwelling in all cases; development rights transferable to new owners.
--Create a "conditional path" for claimants to develop more than three and up to ten home sites if they are able to demonstrate a loss of value that justifies the number of the new home sites requested.
• What they must prove: Right to develop the home sites when they acquired the property; loss of value (documented by an appraisal) that justifies the number of new home sites permitted.
• What they get: Up to ten home sites; maximum of 20 home sites in the state for claimants with claims for multiple properties; development rights transferable to new owners.
--Limit development on high-value farmlands and forestlands and in groundwater-restricted areas to no more than three home sites.
--Minimize impacts on farmlands and forestlands; protect farming and forestry.
• Limit home sites to two acres on high-value farmland and forestland.
• Require clustering of home sites on farmlands and forestlands.
• Protects farming and forestry by extending Measure 37 to statutes and regulations restricting farm and forest practices with exceptions for "human health and safety."
--Prevent the use of Measure 37 to override zoning laws for commercial and industrial uses.
--Extend Measure 37 rights to surviving spouses whose ownership rights did not qualify for standing under Measure 37.
--Make development rights transferable to new owners for "express lane" and "conditional path" claimants. New owners must exercise those rights within ten years.
--Clarify how Measure 37 will work going forward:
• Allow new claims to be filed within five years of enactment of new regulations that give rise to new claims.
• Limit to residential uses and restrictions on farm and forest practices (see above).
• Provide waivers or compensation to the extent needed to offset any reduction in value.
--Hire an ombudsman to help claimants and facilitate claims.
--Refer to the voters for adoption.