FEATURE ARTICLES Memo Calendar Memo Pad Business Memos Loaves & Fishes Letters Home
Tree planting huge success
City struggles with Measure 37 aftermath
Gateway area loses influential leader
County to retain Hansen building, traffic tangles tackled
102nd Avenue plans move ahead
Merkley sees challenges to East Portland
Deadline looms for nominations for Mid-county Memo Community Awards
County library may return to Parkrose High

About the MEMO
MEMO Archives
MEMO Advertising
MEMO Country (Map)
MEMO Web Neighbors
MEMO Staff

© 2005 Mid-county MEMO
Terms & Conditions
City struggles with Measure 37 aftermath

LEE PERLMAN
THE MID-COUNTY MEMO

Ballot Measure 37, intended to allow developers to build free of Oregon’s tough land use laws, has instead left them, cities, counties and land use advocates in a state of high confusion.

The measure, adopted by 61 percent of the state’s electorate, was directed at regulations that diminish the potential value of private property. If a local jurisdiction passes a law that restricts use of a piece of property and an owner tries to develop or use it in ways forbidden by the law, the government must either let the development proceed or pay the owner for the loss of potential value.

Either way, the government must act within 180 days of receiving the claim or risk being sued. The law applies not only to any new regulations, but also retroactively to existing laws that were adopted after either the owner or his family owned the land.

Of the 10 claims filed in the city of Portland since early December, four were in East Portland: two in Pleasant Valley and one each in the Argay and Centennial neighborhoods. The last, by Jerry R. Cox, contests a law that has become a hot issue here: a prohibition on the exterior display of cars for sale. The other three, and eight of the Portland claims, deal with environmental overlay zones on residential properties. One of the latter is Mike Billups, who owns property at Southeast 120th Avenue and Lexington Street in the Pleasant Valley neighborhood. As part of his claim he submitted the following: “We just recently paid over $3,000 to find out that we could not subdivide our property nor even have access due to restrictions placed on our property. Furthermore, we were never notified, not even one time ... We are in our late 50s, and were looking to this property as part of our retirement plan. Now we are left with very little in value or maybe nothing at all.”

This, most observers say, is the tip of the iceberg.

“Potential claimants are being advised to wait, to not rush in and be guinea pigs,” Mayor Tom Potter’s aide Hannah Kuhn told the Portland Planning Commission last month. That such claimants are out there is indicated by the fact that 60 claims have been filed in Washington County, and another 50 in Clackamas County. Each jurisdiction is dealing with the law in its own way.

At one end of the spectrum, Kuhn said, Yamhill County has granted six claimants waivers to regulations “with no due diligence whatsoever.” At the other end, Multnomah County is charging a $1,500 filing fee; they have received only four claims.

So far Portland’s procedure for dealing with the issue, drafted by a team headed by Kuhn, works like this:

Claimants must fill out an application that, among other things, documents their ownership of the property prior to enactment of the regulations in question, proves that they tried and were forbidden from exercising their development rights, and places a number on the extent of their “injury.” When an application is deemed complete and analyzed by staff, it will be brought to City Council to decide, following widespread public notice to neighbors and neighborhood associations.

Kuhn admitted there was some legal risk in this process, given the vagueness of Measure 37 as drafted.

“Someone could write on a napkin, ‘I’ve been hurt and you owe me $1,000,’ wait 180 days and take us to court,” Kuhn told the commission. “We’ve decided we can’t analyze a napkin.” The proposed initial filing fee is $250, low both by the standards of other jurisdictions and the city’s own fee structure for land use reviews. The typical cost for review of a development in an environmental zone is $2,800. However, if the claim is rejected, the claimant could be required to pay the city’s costs related to the case. Because each claim is a potential lawsuit, Kuhn says, city staff could not advise clients of their chances of success. “We decided the fee should be not nothing, but modest,” Kuhn said. “If we find we’ve harmed someone, we should pay the cost of the proceeding.” However, “If we find the claim is without merit, they should pay.”

This provision came under fire at a City Council hearing last month. Commissioner Dan Saltzman said that by such actions the city would “not be putting its best foot forward” in dealing with issues that have “a lot of pent-up emotion.

“We could stick someone seeking relief with a lien on their house,” Saltzman said. When Kuhn characterized rejected claims as “without merit and malicious,” Saltzman called this an “arrogant assumption,” with commissioner Randy Leonard voting for the amendment.

Commissioner Sam Adams took an opposite tack. He drafted a second ordinance that would give claimants the option of negotiating a settlement with the city.

Planning Commission Director Gil Kelly feared Adams’ approach could result in an “end around” city regulations.

“Are we saying broadly, ‘If you don’t like the permit structure, come on down and we’re willing to negotiate?’” Kelly asked.

“The doors are open, whether we like it or not,” Adams replied. The Council decided to postpone action until March 31 to analyze Adams’ proposal.

Some additional bad news for claimants came Feb. 24. Assistant Attorney General Peter Shepherd ruled that Measure 37 claims were not transferable. Thus, to take advantage of them, the owner would have to develop the land himself. Furthermore, once they were sold they would become non-conforming uses, with limited rights for future expansion or rebuilding. Planning Commission member Don Hanson questioned whether proposed development could ever win financing under such conditions.

For this and other reasons, several bills related to Measure 37 have been introduced in the Oregon Legislature.

“Oregonians in Action, sponsors of Measure 37, had been saying that the measure was perfect as it was and didn’t need changing, but now even they say it could stand some tweaking,” Kuhn told the Planning Commission.

At the Council hearing Russell Neighborhood Association Chairwoman Bonny McKnight praised the proposed law, calling it an attempt to “balance private property rights and the public good.” She found the proposed fee structure “reasonable, not punitive.”

Michael Lehne, who is considering filing a Measure 37 claim over environmental restrictions on 2.7 acres he owns at 7915 S.E.162nd Ave., gave Council different sentiments. “Many of the 61 percent of the voters who passed Measure 37 put you in the seats you occupy,” he told Council. “We want our public land back.” Regarding the proposed fee structure he said, “We’ve already paid hundreds, if not thousands, of dollars, and we don’t need to pay another $250. That’s rubbing salt in the wound, gentlemen!” Shepherd’s letter represented advice, not a ruling, and was not binding on Portland or other jurisdictions, Lehne said. “That’s not the way Measure 37 was written,” he said. “We expect you to follow Measure 37, and not play games and try to get around it.”

Lehne later told the Memo he would be willing to negotiate, as Adams proposed, if the city acted in “good faith.” However, he added, “They’ve had their chance to do that. If they’d done that before, this measure would never have passed.”
Memo Calendar | Memo Pad | Business Memos | Loaves & Fishes | Letters | About the MEMO
MEMO Advertising | MEMO Archives | MEMO Web Neighbors | MEMO Staff | Home