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New land-use law proves tough to pin down

Measure 37 summit ponders property rule ahead of Legislature

Jon Chandler hears different theories every time he talks to a lawmaker about Measure 37.

'I've heard legislators say we need to change it, and I've heard legislators say we shouldn't touch it,' said the chief executive officer of the Oregon Home Builders Association. 'I tell them we don't even know what 'it' is.'

'It,' of course, is Measure 37, the property rights measure approved by voters in November. The measure created a complex and still confusing new layer of land-use rights and procedures that have left the state and local governments wondering how it will all work.

So on Wednesday, more than 425 people gathered for a Measure 37 summit at the Oregon Convention Center, the biggest gathering of lawyers, lobbyists, politicians, bureaucrats, planners, developers and builders that the state will see until the Legislature convenes Monday.

Most of the participants arrived scratching their heads and left the same way, trying to peer into the bureaucratic fog to see how property rights, land-use laws and environmental protections in Oregon will change in the years ahead.

Here's how Measure 37 works:

Under the new law, property owners who can show that a land-use regulation reduced their property value can get either a waiver of the rule or compensation to make up the lost property value. In short, Measure 37 means government will either have to pay up or waive its laws.

That may sound easy in theory, but the summit showed that practical application is much more complex. Several cities and counties are passing ordinances for handling Measure 37 claims, while others are waiting for the bureaucratic dust to clear. Will each city and county establish its own rules, procedures and fees, or will the Legislature create some uniform statewide system?

Some combination of court rulings, administrative rules, executive orders, local ordinances, legislative action and perhaps even a new state ballot measure all may contribute to resolving the questions.

So far, the impact in Portland has been minimal. As of Thursday, only five claims had been filed with the city of Portland Ñ all involving the city's environmental overlay districts Ñ and three with Multnomah County. Washington County, meanwhile, has seen 34 claims, mostly on rural lands where property owners are seeking to building a single-family home or a second single-family home on their property.

Dan Eisenbeis, staff planner for the land-use watchdog group 1000 Friends of Oregon, suspects that some developers will hold off on submitting their biggest Measure 37 claims until after the 2005 Legislature adjourns in order to downplay the measure's impact and avoid riling the political climate.

Portland's concerns about cost were clear in a memo from Marge Kafoury, the city's legislative liaison, about the city's priorities for the 2005 Legislature.

'Assuring that a valid claim deserving of compensation has been received will require a significant financial commitment from the jurisdiction,' Kafoury told the Portland City Council in her memo. 'Unfortunately, many government entities simply do not have the financial resources to either provide a thorough analysis of each claim or to protect its regulations by providing compensation rather than waivers.'

The complexities of the law may rest on the motive of the regulation itself, said David Hunnicutt, executive director of Oregonians in Action, the property rights group that wrote the measure. He pointed to regulations that require, say, a 200-foot setback to protect streambeds. There's no Measure 37 claim if the setback is there to uphold federal water quality laws. But a Measure 37 claim may be valid if the setback exists there only to preserve a pleasant view.

'I don't know the answer to that, but I have a feeling we'll see some litigation there,' he said.

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