Year zero: the aftermath of measure 37.

• Author: Sullivan, Edward J.
• Position: Oregon

1. INTRODUCTION II. THE OREGON PLANNING PROGRAM A. Structure B. The Land Use Board of Appeals C. The Oregon Land-Use Program III. THE MEASURE AND ITS IMPLICATIONS A. Passage B. The Measure C. Measure of Value D. Waiver E. Exceptions F. Difficulties IV. FIRST LEGISLATIVE AND JUDICIAL RESPONSES A. Senate Bill 1037 B. House Bill 3474 V. COPING: OTHER LEGISLATIVE AND JUDICIAL ALTERNATIVES A. Legislation and Rulemaking B. Strategic Litigation 1. Living Trust 2. Reservation of Future Claims 3. Exemptions C. Valuation VI. THE DANGERS OF LAND-USE SCLEROSIS VII. CONCLUSION I. INTRODUCTION

   Oregon's experience with Measure 37 has only just begun. Oregon voters passed the Measure on November 2, 2004, and it became effective on December 2, 2004. In brief, the Measure requires either payment (1) for "lost value" of real property due to land-use regulations, or, alternatively, waiver of land-use regulations enacted after acquisition of the property by the "present owner." (2) Other state legislatures are likely to be faced with proposals similar to Measure 37, and property rights groups will either propose similar legislation, or, as in Oregon, use the initiative process to bring the question to the voters directly.

   This essay discusses the Oregon land-use planning system (not altered by the adoption of Measure 37), sets out the various features of the Measure, and relates the experience of Oregon public entities in dealing with the first claims made under the Measure. It then suggests how the state's land-use planning system can cope with the current version of the Measure, and explores some likely areas in which the Measure may change in the not-too-distant future. Finally, this essay examines the greatest danger posed by the Measure, which involves neither payment nor waiver, but rather the onset of sclerosis of the state's land-use planning system.

   During the drafting of this essay, the circuit court for Marion County (home to Salem, Oregon's capital) heard a facial challenge to Measure 37 and struck it down on a number of state and federal constitutional grounds. (3) At the time of publication of this essay, an appeal of the judgment of the circuit court is pending before the Oregon Supreme Court, and a decision on the matter is not expected before the spring of 2006.

   As a result of the circuit court judgment, the State of Oregon and four counties (Marion, Washington, Clackamas, and Jackson) have been enjoined from accepting or processing Measure 37 claims. (4) However, it is not clear whether non-participating governmental entities, including the other cities and counties in the state, are bound by the judgment. The confusion arises as a result of a state statute which provides the procedure for challenging the constitutionality or validity of voter-passed legislation. (5) There is much confusion and uncertainty within the non-participating public entities because, ff the Measure is ultimately found valid on appeal, the 180-day time period for deciding such claims, described below, may have passed, allowing claimants to file claims in circuit courts to request costs and attorney fees.

2. THE OREGON PLANNING PROGRAM

   The year 1973 was magical. It was the year Watergate and abuse of government power became ingrained in the public mind. It marked the beginning of an era of political and social reform, of government in the sunshine, and public records laws. Without this wave of optimism and reform, the Oregon legislature might not have enacted its land-use program. Senate Bill 100, (6) which encapsulated that spirit of reform, overcame fearsome difficulties and survived intense floor debate in the Senate to become the foundation of the country's leading land-use planning program. However, while the program generally remained intact for three decades, various political factions continued to disagree with each other, and, in recent years, matters became so contentious that it seemed only a matter of time before some changes were bound to happen. The passage of Measure 37 in November 2004 heralded a new era of land-use planning in Oregon. However, as the underlying structure and mechanisms of the Oregon land-use program are largely unchanged, an initial overview of that program is in order. (7)

   1. Structure

      In 1973, Senate Bill 100 established the Land Conservation and Development Commission (LCDC) (8) as the center of the Oregon planning program. Following enactment of this enabling legislation, LCDC adopted planning standards, called "goals," (9) as well as administrative rules setting forth goal requirements in some detail. (10) LCDC then proceeded to supervise the activities of the Department of Land Conservation and Development (DLCD) in the day-to-day work of the planning program. (11)

      Over its lifetime, the LCDC promulgated nineteen statewide planning goals. These goals establish binding land-use policies that attempt to strike a balance between development and conservation. The goals fall broadly into five categories: 1) the planning process, 2) citizen involvement, 3) conservation of natural resources, 4) economic development, such as housing and transportation, and 5) management of Oregon's coastal resources. Since 1973, Oregon has required that most land-use decisions by state agencies, general purpose local governments, and other local governments (12) be consistent with state policy as embodied in this framework of planning goals. As separate approval standards, the goals form an independent basis for challenging local planning actions. (13)

      Senate Bill 100 required every city and county to formulate or amend its own comprehensive plan to meet the applicable planning goals. "Acknowledgement," an invention of the 1977 legislative session, is LCDC's certification that the goals are implemented through local plans and regulations. (14) By 1986, the agency had acknowledged the coordinated plans of all 276 cities and counties in the state. (15)

      Importantly, the state planning goals apply to land-use decisions involving individual parcels of land until acknowledgment. Following acknowledgment, individual amendments to plans and regulations are subject to challenge on grounds of compliance with the goals, but decisions involving individual parcels of land are subject only to the acknowledged plan and regulations. (16) Additionally, plans and land-use regulations may also be subject to a periodic review to determine continued compliance of local plans and land-use regulations with the goals. (17)

   2. The Land-Use Board of Appeals

      In 1979, the Oregon Legislature created the Land Use Board of Appeals (LUBA). (18) This statewide administrative panel is unique because it possesses "exclusive jurisdiction" to review most local and some state "land use decisions" (19) for conformity with the statewide planning "goals," and to review amendments to acknowledged comprehensive plans and regulations. The decisions of the Board are subject to review by the appellate courts. (20) Oregon's pioneering decision to supplant the trial court system of adjudication in the land-use context was underpinned by sound policy reasons, including short decisional timelines, exclusive jurisdiction over all land-use decisions, the efficiencies resulting from strict procedural rules and the concomitant reduction of costs, the expertise that the Board has manifestly developed, and the resulting accuracy and consistency of decisions. (21) LUBA has a significant role in shaping state policy because in reviewing a challenged land-use decision, it must interpret and apply these goals. (22)

   3. The Oregon Land-Use Program

      Over the past thirty-three years, the basic structure of the Oregon planning program has remained largely unchanged. Nonetheless, institutions such as local governments, as well as public and private interest groups, have affected the program. The program has seen vigorous participation from groups as diverse as 1000 Friends of Oregon, the Oregon Retail Council, the Oregon Association of Realtors, Oregonians in Action, the Oregon Concrete and Aggregate Producers Association, and various homebuilder groups.

      Further, the tendency of the Oregon Legislature has always been to add to and "nit-pick," rather than to revise, the existing legislation in a coherent manner. Oregon's planning program, having now survived multiple governors and legislative sessions each with their own perceptions and priorities, has consequently become a work of considerable complexity.

      In addition to the numerous incremental changes to the program, generational change cannot be overlooked as a factor affecting the program. In 1973, the fight for open government against the Nixon administration and the Vietnam War and concern for the environment made many political things new. The current political and social culture is now markedly different. People who move to Oregon, or who are now coming of age, simply do not remember the history and reasons for putting so much blood and treasure into the state's land-use program. Indeed, more than haft of Oregon's current population was not in the state or were children when Senate Bill 100 passed. While they may know little about the rationale for urban growth boundaries, they do know they bought a lot next to some trees that are about to be taken down for another development. For too many of these people, lowering property taxes is more important than providing additional government services to their new neighbors. Autonomy in personal expenditure, a cover for self-interest, is more important than the needs of others. The cognitive dissonance of holding two contrary positions simultaneously has not yet occurred to them.

      Even though the program has been the object of much time, study, money, and political jockeying, it is clear that the system needs an evaluation far more quantitative and penetrating than has yet been undertaken. The Oregon Chapter of the American Planning Association has long advocated such a review...