BREAKING: Judge Says Transferring M37 Rights Not OK

Just over the wires from the Medford Mail Tribune:

A Circuit Court judge ruled Friday that Jackson County overstepped its authority and added language that doesn’t exist in Measure 37 in asserting that claims can be transferred from one property owner to another.

“Under any legal analysis it is clear the voters did not intend Measure 37 claims to be transferable,” Judge Phil Arnold stated in a 13-page ruling that shot down every legal assertion made by the county.

With the judge’s ruling, county officials will determine the legal standing of Measure 37 claims that have been approved and also the status of building permits issued based on an approved claim.

Arnold said the county also erred in not requiring property owners to file a separate claim with the state of Oregon, and the county cannot continue to issue permits without regard to possible state requirements.

“The county does not have the authority to sanction a wholesale disregard for compliance with state statutes that also may govern a particular claimant’s application for building permits,” stated Arnold.

It will surprise no one that we support this decision wholeheartedly. In particular beyond transferability rights, I'm very pleased that Judge Arnold rebuked Jackson for failing to consider state regulations as part of the Measure 37 process--not that their own ruling should necessarily take state law into account, but that they recognize that a claim must pass muster for any locality that governs the property, and they cannot prematurely grant building rights before those conditions are satisfied.

Related both to this post and the previous one about the formation of a Joint Land Use Committee in Salem--Kulongoski completed the government branch Measure 37 trifecta today by sending a letter to the Legislature {pdf}, commending them on the formation of the committee and urging them to concentrate first on small landowners with claims directly related to plans for family residences, the so-called "Dorothy English" people:

We estimate that fewer than a thousand of these claims came from property owners asking to build a home on land they bought for that purpose years ago. Their requests represent the reasons that voters supported Measure 37 in 2004. And, we would like to continue to process these requests as quickly as possible.

Oregon is facing a forced choice as the 180-day clock runs down – either allow these developments to proceed, with irreversible impacts on local communities, or pay compensation for speculative claims that we cannot afford to pay. Oregonians now recognize the unintended consequences of Measure 37. They are demanding – and they deserve – better options than the forced choices that confront us under Measure 37.

Right on, Ted! He gets it. And lest you believe that he's merely projecting the party viewpoint on Measure 37, today's Statesman-Journal aptly describes the amount and tenor of confusion that is reigning across the state:

The problem: There are still more questions than answers.

Measure 37 -- fewer than two pages of text -- is very general, [state DOJ attorney Richard] Whitman said.

"It leaves a lot unsaid," he said. "There are a lot of practical questions that we have no answers to."

That means that there are no uniform procedures across the state's county planning departments, which deal with property owners who want compensation for lost value due to land-use regulations or to have those regulations waived.

The answers need to come from legislators passing laws or by the court system interpreting the measure. Court decisions are made after lawsuits are filed.

So far, there are 130 court cases involving Measure 37, but Whitman estimated that number could double.

Most of the litigation is at the county level, and those decisions are not binding statewide. Until the Oregon Court of Appeals weighs in on Measure 37, individual counties will be interpreting the measure based on their own circuit courts' decisions, he said.

Whitman estimated that if the 2007 Legislature doesn't pass laws refining Measure 37, it will be another three to five years before officials have clarity on the rules about filing claims, transferring rights to develop, assessing the value of property and the laundry list of other problems that have developed.

And what do people want to do with M37 as a result of this confusion? It's not a scientific indicator, but the Statesman reports that many attendees of the forum signed on to a petition to suspend M37 and require public hearings to discuss how to move forward. Amen.