House Dems: Look For Changes on Measure 37

There has been a flood of attention paid to Measure 37 and its effects over the last few days, owing to the looming deadline for claims. The Oregonian has been particularly dogged on the issue, publishing daily on the subject since the weekend, focusing in with two strongly worded editorials both Sunday and Monday, essentially saying the same thing: the sense of buyer's remorse is running high as the dogs of development begin licking their chops.

I reported Monday on one of the more egregiously self-interested claimants, part of a group I've begun calling The Dicks of 37. The money-refusing Palins of Prineville are in there as well. And yesterday there was yet another story (echoing one late last week) about the flood of new claims in just the last five weeks:

The tally -- 3,600 logged by mid-November -- clearly has ballooned, triggering calls by land-use activists for the Legislature to revisit the law when it convenes in January.

"This last-minute surge and the confusion around that surge indicates there's still a lot of misunderstanding in the public's mind," said state Rep. Bill Garrard, R-Klamath Falls, who oversaw land-use discussions in 2005 and supports the measure. "I feel it is the Legislature's responsibility to do something about it."

Governments will need weeks to get a clear picture of recent applications. But claims could open the door to a Wal-Mart store on a long-debated site in Portland's Sellwood neighborhood, a gas station or drive-through restaurant in Sandy, and housing on tens of thousands of acres of forestland owned by Portland-based Stimson Lumber.

Washington County received 75 claims on Friday alone, bringing its total to nearly 800, said Mark Brown, who manages land development and building services.

"As soon as one person is finished," he said, "there's another person waiting."

State workers accepted 1,900 applications in November and another 1,800 since Friday. To accommodate the rush, they transformed a conference room into a makeshift Measure 37 headquarters.

Because no money has been set aside for payments, governments are letting claimants opt out of modern restrictions on development. But the state's interpretation prevents longtime owners from selling to professional developers, which is holding up many projects.

Two things jumped out at me in this piece, first of which is that an insane number of entities are simply filing claims in order to hold some potential stake in a windfall down the road. Even people who ran campaigns on their opposition to M37, made sure they could still hold their reserve on development. There is no way in hell the processing of these claims is not taking a sizeable chunk of time for already-lean county clerk's offices, and yet the progenitors of M37 blithely pretended there wouldn't be any real implementation cost.

The second point is in the last line of the excerpt, which gets to the heart of the continued confusion and positioning of claimants: the issue of transferrability is not entirely settled, but the current state executive opinion is that you only get the waiver because you might have had designs on development that were subsequently blocked after you bought your property. If you bought it knowing the restriction was there, you don't get the waiver.

That position is under dispute as I said, and this week it looks like we might get a ruling on its validity down in Jackson County:

Circuit Court Judge Phil Arnold said he would make a ruling as soon as possible, which could affect the 560 claims filed with the county to date. Ninety-two claims came in on Friday in anticipation of Monday's deadline.

Hunnicutt, of Oregonians in Action, disputed what he said was the state's contention that Measure 37 claims are temporary and apply only to the property owners who applied for them. "There is nothing in the statute that makes that determination," Hunnicutt said.

"You are overstating the state's position," Arnold said. He said the state wasn't arguing that these claims are temporary if certain criteria have been met. "It's forever," he said.

Stephen Bushong, a lawyer for the Oregon Attorney General's Office, spelled out the state's position on the transferability issue.

He said the language in Measure 37 makes a point of stating that the claim applies to the present owner. He said there is an absence of language in the property-rights measure addressing transferability.

He said the ability to file a claim is based on whether the person who currently owns that land owned it before a land-use regulation came along to change its permitted use.

Because the language in Measure 37 focuses on the current owner or family, he said the state has determined that the owner who has received a claim must make an effort to act upon it before it can be transferred to another party.

Where do the House Dems come in on all this? (Late for this post, I guess, since I made reference to them in the headline.) In the latest Oregonian article, it is openly wondered whether the new Democratic legislature will seek to make changes in M37's implementation. Hunnicutt doesn't think there's the stomach:

[Hunnicutt] has said he might support limits on claims if the state stops getting in the way of modest development. But he's not sure how much interest legislators have.

"If how they treated it on the campaign trail is any indication, zero," Hunnicutt said. "Everybody was afraid to talk about it -- Republicans, Democrats."

Legislators are discussing Measure 37 informally as they prepare to convene Jan. 8, said Russ Kelley, House Democrats' spokesman.

"It's difficult on Dec. 4 to predict what's going to happen in the Legislature," he said. "I do know it's something we have to look at."

That's a pretty coy quote from Kelley, isn't it? I got the sense that if there WAS any action afoot by House Democrats on the issue, it would not be overhyped in some O piece in response to bait by Hunnicutt. But I had to probe Kelley a little more, just to see if he really did have a rough sense of the body going in.

He stayed cagey at first, saying only that he thought "something" would happen, and everyone would bring their different ideas to it, blah blah. But he revealed that contrary to Hunnicutt's assertion, there was no "third rail" fear of dealing with the measure in the caucus, and there was a definite shift in perception even among former supporters. The legislative mood he described to me was one that was keenly aware of the problems and confusion, and was ready to take up the idea of changes.

Citing the AG's position, however, Kelley suggested that one change NOT likely to survive any negotiations would be transferrability, shutting the door on an olive branch once offered to Hunnicutt by the Guv. Now it's Hunnicutt's turn to offer the olives, saying in public that some kind of "house limit" might be a workable compromise, as long as the limit isn't one. Kelley wouldn't commit specifically to any particular ideas, but did agree that protecting the Dorothy Englishes was both the perceived intent of the measure and something Oregonians wanted from it.

In this vein he addressed changes as a "strengthening" of M37, although acknowledging that paradoxically the measure can only be strengthened by weakening the breadth and vagueness of its provisions. When it comes down to it, M37 is an expression of the tension between individual supremacy and community interest regarding property rights. And when I suggested that, given the new makeup of the legislature and the jittery local governments back home, the pendulum may swing back towards community interest in the next session, Kelley agreed that's where it was more likely to end up.

So there you have it. Wheedled answers from the House Dems spokesman, free of charge! Or maybe Russ figures that if he tells us, we won't distort his words or otherwise fuck it up like the MSM can sometimes. Glad we could be there for ya, Russ--and now you know why it pays to read LO...