Measure 37: County waives regulations in first claim

By RAELYNN RICARTE

News staff writer

May 4

The Hood River County Commission processed its first Measure 37 claim on Monday — but the authors of the new law are “disappointed” with the rationale behind that action.

Although the board waived regulations on 53 acres of orchard land owned by John and Julie Benton, it also raised three controversial points of concern.

Rep. Patti Smith, R-Corbett, said the issues highlighted at the local May 2 meeting have underscored the need for legislative action. The House Land Use Committee plans to begin addressing the outstanding subjects next week. Under discussion will be transferability of restored rights, whether government agencies should be allowed to take ownership of property when compensation for lost rights is granted, and the hierarchy of the new law and state land-use goals and rules.

“We need to interpret what more than 60 percent of the voters intended when they passed Measure 37 last November. In my estimation, it seems fairly obvious that the voters clearly wanted rights restored to the property that were transferable when it was sold. We just need to get some policy clarification here and the House is committed to doing that,” said Smith.

All three major issues were fielded by the County Commission during its adjudication of the Benton claim that was filed in December. The elected body chose to waive local regulations imposed on the Bentons agricultural land along Nunamaker Road. In 1977 when John and Julie purchased the property from his parents, they were allowed to build one home on every five acres. In lieu of paying their requested $11.5 million for lost development rights, the county chose to lift today’s restrictions that require a larger parcel size for housing and passage of a farm income test.

However, any application to divide and/or develop the property that is submitted by the Bentons has to be tied to a waiver of state land-use standards. And the restored development rights cannot be passed on to another owner if the property is sold.

The county board’s decision regarding transferability of rights was based on the recommendation of Attorney General Hardy Myers and legal counsel for Gov. Ted Kulongoski. Both state offices have rendered an opinion that development rights restored under Measure 37 apply only to the current owner.

Ross Day, director of legal affairs for Oregonians in Action, the property rights group that wrote Measure 37, said “extremely flawed” reasoning was applied to that interpretation of the new law.

“These are political opinions and not legal opinions by any stretch. We certainly intended to take this on legally at some point because it is ludicrous to think that a judge could, ultimately, order a house to be torn down that had already been approved,” Day said.

He also said Hood River County, along with many other jurisdictions, does not seem to understand that Measure 37, as a law, trumps state land-use goals and rules. Therefore, local governments are allowed to also waive state regulations that have devalued a property — and the claimant should not have to jump through more procedural hoops.

“They are missing the point that goals and rules are subordinate to statutes and Measure 37 is a state statute,” said Day.

Commissioner Chuck Thomsen addressed another issue on Monday that is a point of confusion among government agencies — whether payment of compensation results in the purchase of the subject property. Thomsen was concerned that continual waivers of development rights could result in a parcel-by-parcel erosion of the county’s agricultural base. He felt the county needed to explore ways to pay compensation, but wondered if that meant the land would then belong to the public.

“There seems to be substantial interest in people having farmland in Hood River County,” he said.

Day said that same discussion is taking place across the state but it points to a “hypocrisy” in government thinking. He said if agencies grant a waiver that is not transferable, the restored right then rests with the owner and not the land. However, if compensation is granted instead, then officials want it tied to the land instead of as a settlement to the owner for downzoning of his/her property.

“Measure 37 clearly states that they are not buying the land, they are paying for the loss of value as a result of taking away development rights. You can’t have it both ways here, people are just getting caught in their own rhetoric,” said Day.

Dave Meriwether, county administrator, said a legislative directive on the application of the new law, which took effect on Dec. 2, will be very welcome. He said Hood River County is being held by Measure 37 to a six-month timeline to process claims or face expensive court challenges. Currently, there are 15 more claims awaiting decision, with requests for compensation totalling about $100 million.

“We hope the legislature will proactively deal with some of these questions. But, in the meantime, we have to move forward the best that we can and, at this time, that means following the recommendations that are already on the table,” he said.

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