City council turns tables, grants M37 waiver

Sherwood agreed to waive the current zoning on the site to the 1964 regulations, not that which existed in the '80s
by: Anthony Roberts, The Moser property on Murdock Road shortly after it was clear cut in August 2006.

Sherwood City Council approved the first Measure 37 claim it reviewed in February, but not the same waiver the property owners were hoping for.

The claim, filed by the Moser family for their parcel on Murdock Road, is among the first of its kind in Oregon, and it's posing unique questions about how the complicated law can be administered. According to the Moser's attorney, Christopher Koback, the claim is the first he's seen in which the property changed jurisdiction since it was purchased, and was "up-zoned" to allow a higher housing density before being "down-zoned" to a lower density. Koback spoke at a public hearing during a council meeting in February.

When the Moser's bought the property in 1964, it was a part of unincorporated Washington County, and zoned to allow roughly one unit per acre, roughly the same as the current city zoning. In 1974, the county increased the density at the site, allowing six unites per acre. The city approached the Mosers about annexing the site in 1987, and Koback said then-city manager Jim Rapp promised a similar zoning, which the Moser's got until 1991. That year, the city chose to decrease the zoning to about one unit per acre.

The Mosers wanted a waiver that would reinstate zoning that allowed seven units per acre and was in place as recently as 1991. Instead, council reinstated the 1964 zoning, saying that was all they were permitted to do by the law.

Councilor Dave Luman pointed out that Measure 37 twice says that a governing body can only restore the zoning "permitted at the time the owner acquired the property."

Koback argued that applying the old county zoning violates state law, because one jurisdiction can't enforce another's rule.

The area east of Murdock Road is part of a southeast Sherwood master plan that the city has developed along with neighbors in the area, and allows higher densities in some areas in exchange for other areas of land on a property being set aside for parks or open space. Several speakers at the February public hearing encouraged the Mosers to try to develop their land according to the master plan. Kurt Kristensen, who lives in the neighborhood, said following the master plan guidelines could lead to the development that would net the Mosers even more money than their desired plan to build 66 houses under the 1987 zoning laws. Koback said that under the current zoning, the Mosers could build up to 28 homes, and the total loss in value would equal about $5.6 million, which was the amount of the claim. The land is in a trust for the Moser's children.

"The Moser's made a good investment," Koback said of their initial purchase of the land. He said the family was prepared to appeal the city's decision.

City attorney Paul Elsner agreed with the city staff's interpretation that if council were to return the property to a prior zoning, it had to be the zoning at the time the Mosers bought the property. He said the fact that Koback was looking into past cases to try to justify the decision to turn back the zoning was a sure sign of the uncertainty of the claim.

"A lawyer never looks at legislative history unless the statute is unclear," he said.

Passed as a ballot measure in 2004, Measure 37 allows property owners whose property value is reduced by environmental or other land use regulations to claim compensation from state or local government. If the government fails to compensate a claimant within two years of the claim, the law allows the claimant to use the property under only the regulations in place at the time he or she purchased the property.

Clear Cut

Land owners Leroy and Delores Moser decided to clear cut the property, which had been a mature forested area, in August. State law mandates that for such small parcels, landowners only have to fax an application to the Oregon Department of Forestry.

Dave Johnson, a district forester in the Forest Grove District, which has jurisdiction over the land, said that with these small-scale cuts on private land, the owner must show only that they are passing the department's standards; there is no permit issued and no in-depth approval process.

"It's a notification," Johnson said. "We don't turn around and issue a permit; the land owner or operator notifies us of what they plan to do and we take a look."

Johnson said the trouble arises when policies designed to regulate large forest areas are applied to small urban patches of forest.

"The rules are designed for a rural application out in the coast range," he said. "Expectations are a little different in downtown Sherwood."

One way Johnson said towns like Sherwood could have a greater say over such matters is to "take on the administration of forestry within their region," meaning the City of Sherwood would become the governing body that would receive and review applications for any cutting that would occur in the city's boundaries. Johnson said his department encourages cities to do that, and even has a web link to a document created specifically to help cities through the application process. Some neighboring cities that have already taken that step include Tualatin, Beaverton , Forest Grove, Portland, Tigard and Wilsonville.

While the step provides more local control, Johnson noted that depending on the amount of forested land in a city, it can add a lot of work to public employees who are already overworked.

"Rainier accepted it, they saw how much work it was, and they gave it back to us," he said.

M37 opponents tout law that would limit claims

Oregon lawmakers are considering legislation, Senate Bill 505, that would limit Measure 37 claims. The bill would allow all claims seeking one additional home on a property to be processed, while placing other claims on hold.

According to 1000 Friends of Oregon, a group that has opposed Measure 37, a survey shows voters would reject the law if it appeared on the ballot today.

In a statewide survey of 500 Oregonians conducted in late January by Moore Information, 52 percent of respondents said they would vote against the measure, while 37 percent would support it. In addition, 61 percent of Oregonians want the Oregon Legislature to either fix or repeal Measure 37, while 31 percent of voters want the legislature to "keep its hands off" of the measure.

Property rights group Oregonians in Action, meanwhile, is calling any delay in processing claim "unconscionable," noting that many claimants are elderly.

"Many Measure 37 claims will be lost forever while the suspension is in effect," Oregonians in Action President David Hunicutt wrote in an open letter to OIA members.