Wednesday, January 24, 2007

M37: Arnold Rules, Hunnicutt Rebuts

"You're not going to call me a moronic fucktard, are you?"
I've been having some good phone conversations lately. After assuring him it was unlikely the interview would warrant that kind of reaction, Oregonians in Action President Dave Hunnicutt was happy to explain how he saw things in the wake of Judge Arnold's surprisingly quiet ruling on transferability of development rights {pdf} earned from a Measure 37 claim. Well, he wasn't happy to have to defend the losing position to me of course, but for a lawyer he's a lot less haughty and perspicacious with his words than you'd guess.

When I spoke to him he was reacting to the ruling without having fully read it, but he knew what the arguments had been. Hunnicutt's core position is that because there is no mention of transferability in the text of Measure 37, generally in law the default position is to allow something unless specifically proscribed, and to use the appropriate standards and principles that are traditional to that area of the law. In land-use decisions, he argues, the ruling stays with the property and not the owner. This makes some sense; the zoning laws themselves apply to the new owner of the property just as much as the previous one.

But Arnold sees the lack of language differently, and makes clear why the M37 claim isn't analogous to land-use rulings themselves:
“Owner” is defined by Section (11) (C) as “the present owner of the property, or any
interest therein.”
The terms “transfer,” “transferability,” “transferable,” and “subsequent owner” are not found in Measure 37.
Measure 37 did not repeal or amend any existing land use law. All land use laws which were in effect prior to the passage of Measure 37 remain in place today. What Measure 37 does is provide a method by which the “present owner” of a parcel could receive compensation or relief from enforcement if the land use regulation diminished the value of his/her property.

When read in context, Measure 37 makes it clear what is meant by “present owner.” The “present owner” must satisfy a requirement of being the owner on two dates. First, she/he must be the owner at the time the restrictive regulation is passed. Section 1 does not apply to land use regulations “[e]nacted prior to the date of acquisition of the property by the [present] owner.” Section (3) (E). The second date on which the present owner must qualify to receive the benefit of Measure 37 is “the date the [present] owner makes written demand for compensation… .” Section (2). In both cases, the definition of the owner is the same. There is no provision in
Measure 37 for previous or subsequent owners. {emph mine}
Hunnicutt believes that while the owner is the claimant, the relief is applied to the land. But Arnold takes pains to hang Hunnicutt by his own rope, using the language of the measure to show how ownership is the key feature of Measure 37, being the sole way to qualify for rights and relief on a property. The relief is compensation from having those rights previously "taken" after purchasing the property under different land-use rules.

But for new owners, the blues song applies: You Can't Lose Something You Ain't Never Had. There's no right to restore to the new owners, so there's nothing to compensate--the prospective buyer knows that he would be buying property under current zoning laws--laws that Arnold reminds us were not amended or altered. Hunnicutt believes the state admitted the permanence of the "modify, remove or not apply" provision (otherwise known as the approval waiver) as a non-temporary allowance. But that really does a tightwire logic act, and either I misunderstood his point or he's spinning hard here.

Hunnicutt was game in his defense, skirting the idea that maybe if there was an intent to make sure that development rights were transferrable, there should have been something--anything--about transferability in the measure. But there's nothing. It's not even set up to imagine a process whereby the rights would transfer, based on the definition of ownership. But Hunnicutt is sure that since it's not mentioned, it's legal. "The measure doesn't restrict that change [banning transfers] in the legislature--but it's not in the measure," he noted. Arnold doesn't buy that line; because the law is from a ballot measure, the legal standard Hunnicutt cites is usurped by what the public can know about the question from reading the title. The public is not expected to evaluate a measure based on legal arcanities; they only see what is presented to them on the ballot. And if there's nothing about transfers on the ballot, Arnold reasons, it cannot be fairly said that Oregon voters voted for transferability in M37.

Interestingly, Hunnicutt allowed that he essentially blew off the other half of his argument for Jackson County, regarding the necessity of the county to make sure of compliance with state law before issuing building permits. "I'll be honest; I spent about 5 minutes on the state-local thing," he said. Because the waivers needed to come from every locality that has jurisdiction over the area, a separate state claim is usually judged to be needed before actual development can begin, to assure it complies with state law.

The judge was not impressed at the county's stated antagonism for that due diligence:
It is not enough for the County to include a notation in permits granted to successful
Measure 37 claimants to the effect that the State may disagree about whether a state-law waiver also is required. 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. Order No. 300-05 sweeps far too broadly.

The County also argues a property owner “may” wish to apply for a state waiver or “may choose not to make such application.” This argument misses the point. The Order directs county employees to issue permits without regard to possible state requirements and it is that mandatory disregard for whether state waivers also are required that renders the Order invalid. If there are cases in which no state waivers are required, the permit can be issued. But it is not for the County to declare in advance that permits “shall” be issued without even an inquiry about whether state
requirements also continue to apply.
I think Hunnicutt bailed on this part of the case because he knew he had a loser with it. It's clear just from reading it what a combative tone the county takes with state law, and I think it made Judge Arnold a bit mad.

The county has not yet announced a decision to appeal, but sentiment appears mixed.