Friday, May 04, 2007

M37 Fix House Debate Recap

As we noted earlier, HB's 3540 and 3546 both passed the House this morning, on a strictly party line vote. There was some good debate, but I was surprised it wasn't more animated or spoken to on the floor. I counted 13 speakers not including the carrier (Macpherson) or the Speaker: Galizio, Clem, both Edwardses, Roblan and Majority Leader Hunt for the Dems; and Richardson, Butler, Mauer, Girod, Patti Smith, Whisnant and Thatcher for the GOP. That's a reasonable number, but I thought more of the rabid Republican ruralites would froth their way to the mike one way or another.

Just to set the stage a little bit, here's an editorial yesterday from the Daily Astorian, blessing the compromise:
House Bill 3540 will give Oregonians a window of opportunity to resuscitate the heart of our heritage of sensible management of development. After the glimpse we've had in the past couple years of the damage Measure 37 can inflict, the special election authorized by HB3540 has a decent chance of stabilizing our communities within responsible limits.

Coupled with House Bill 3546, which provides local governments with an extra year of cushion before they have to confront Measure 37 claims, the Legislature's response is a moderate and democratic way to change Oregon's course before it's too late.

This proposed solution still allows a good deal more subdividing than would have been permissible pre-Measure 37. Property could be split into as many as 10 homesites, or three in areas where land is more appropriately kept as farm or forest and in areas that are drought-prone.

...but considering that 61 percent of Oregonians supported Measure 37, the Legislature's plan is a compromise we should be willing to accept. So should those who want more building.
In that atmosphere, where just about anything he presented would piss off someone, Rep. Macpherson stepped to the mike with a visual aid showing Clackamas County M37 claims, and a declaration that M37 was "not working and delivering the fairness that was intended...a classic empty promise." In response to a question from Galizio's district that his plan "gutted" M37, Macpherson got about as ruffled as I've ever seen him, saying "that statement is nonsense."

David Edwards had a couple of perfunctory questions that allowed Macpherson to state some of the working principles: if you wanted to build up to 3 homes, and your land was available for residential building before SB100, you'd be given "fast track" authority on your claim, without even proving recoverable damages as M37 states. Furthermore, you'd be able to transfer your claim, and widows of spouses who actually owned the property would still be able to file claims--codiciles currently not applicable under M37. Those are the nods towards compromise; what are the hitches? It appears that commercial and industrial claims get the axe (although you can build residential on the property instead), and if you want more than 3 houses you have to prove your valuation damages. Also, so-called "high value" exclusive use land will be exempt even from residential claims, it appears.

Edwards got to the heart of the compromise bill, noting its intent to "preserve fairness at the heart of M37. I agree with the main purpose, but land use laws need to protect the value of everyone's property [his oral emph]."

That principle of not limiting "property rights" just to those who have claims is key to understanding the reform frame. Edwards read a letter from a constituent whose family are 4th generation farmers, saying they made a committment to farming after passage of SB100, and that "our success is based on our property right to farm." Addressing the idea of "overturning" the will of the voters, Edwards noted that "the wisdom of our nation's founders is that they were not content to simply follow public opinion." I fully agree--which is why I think it was an enormous failure of the Legislature to take care of reform themselves without a ballot referral, but we'll touch on that again later.

Dennis Richardson got up next and tries to trap Macpherson, or at least impugn the work of the JLUF committee who worked on the bill, by asking whether the committee had studied "viticulture maps" in the western half of the state. Mac responded it wasn't a mapmaking exercise. Zing! Richardson moved on to the next gotcha, wondering whether commercial and industrial claims were included--when it was clear during his speech afterwards that he knew they weren't. And he also made Mac promise he had not had any discussions or made plans about removing the ballot referral part of the bill, which also seemed to annoy Mac. He replied "not that I know of, but if that happened you'd still have a chance to vote on it," since a bill from the Senate without the referral would need to be re-voted on in the House.

Richardson then sought to have the B-25 amendments inserted into the bill, which appeared to address his viticultural concerns. The motion failed 26-31, and Richardson then launched into yet another speech of whines and complaints related to the process, a new staple of the Republican legislative diet. He asked the chamber to look up and scan some of the names that ring the walls, wondering aloud what they would think of this bill. (Considering the idea of zoning would only follow about 60 years after statehood, I'm pretty sure they'd just be confused).

Richardson claimed the bill was "revealed" only last Thursday, wasn't vetted, passed a Ways and Means subcommittee on Tuesday, and then the full W&M the same day. And as a result, the bill "neuters the intent and thwarts the will of many Oregon voters...the bold print gives you the rights; the fine print takes them away."

Next was Brian Clem, who offered perhaps the most strident defense of the bill. In a response to Richardson, Clem noted that "my ancestors aren't on this wall," but they were in fact a longtime Oregon farming family, and "when I see these maps [of M37 claims] my stomach sinks, my hopes fade." Clem described just why subdivisions and farms don't mix: dust, noise, smell, animals, heavy machinery..."they complain about the noise, but they want the food."

Clem concentrated on just how much the Democrats were giving away in the bill; he recounted the story that in one county, claims were processed in just 90 seconds, despite the measure's own text specifying the need for "demonstrated loss." Furthermore, he said "We've adopted Oregonians in Action's own argument to judge fair value, one they argued in court," and to those who wanted M37 so that retirees could build a house on their land, "this is it--you've won!"

At this point Patti Smith stepped up to introduce Greg Walden, who got a nice round of applause. It's still not clear to me why he was there, but whatever.

Dave Hunt spoke next, and offered what I thought was a very weird statement considering how things had gone. Paraphrasing a bit, he noted
Would many of us like to duck and cover on this? I'm sure. But this is the kind of issue we were sent to act on. It's about a lawmaking body listening to the people...maybe the legislature in its finest moment!
WTF? Did I miss something, or isn't the legislature shirking its duty and passing the buck to the voters because they couldn't reach an agreement? I'm glad they got something to propose, but it's certainly no shining moment for them.

Other notable snippets came from Reps. Mauer ("clouded in a haze of propaganda;" "legalistic dodgeball;" "little chance the truth will prevail"), Butler ("I don't know what I'm going to tell my constituents"), and Girod ("This kills Measure 37 and gives it a very slow and painful death;" "This is a partisan bill written by LCDC for the benefit of LCDC*.")

Oddly, the most insightful testimony came from Patti Smith. She read a letter from a Hood River pear grower who was against the fix, but she was correct IMO in noting that "the legislature has once again failed," rather than being some triumph as Hunt imagined. She also complained that the fix committee had been working on some form of the bill back in April, and "now it's been changed." I would figure that represents an attempt at compromise, but in any event her comments sort of put a big hole in Richardson's argument that it was rushed through without any vetting, doesn't it? On the other hand, is it really "thwarting the will of the voters" to send them back something to vote on? It's more like superordinating the will of the voters, which has its own odious side effects.

Kim Thatcher spoke last before Mac summed up, and for reasons I'm still not sure of, she asked Rep. Read to answer the question, "What are you going to tell people (who will be screwed by this bill, some of whom definitely will be)?" Read's response was, well, we're sending it back and will let them decide if that's what they want to do.

Just before the vote, Patti Smith declared a conflict of interest. Thatcher declared a potential conflict, apparently because of this rather bizarre story of the Thatchers wanting to build an 8-foot wall around their house and being denied by the City of Keizer, leading them to threaten an M37 claim. Whatever, Kim. Brian Clem also declared a potential conflict, although he found it highly remote that any claims might be filed.

One last curiosity: at the beginning of the debate, the absentees on the floor were Richardson, Dallum, Boquist and Minnis. As I said Richardson showed up after a bit. The other three didn't arrive, but strangely by the time of the vote, Reps. Scott and Lim had disappeared as well. According to one Salem insider, a few minutes before the vote Scott approached the Dem leadership and said he was leaving. They asked if he planned to declare a conflict given his M37 claim; he said no and left the chamber.

In these situations the House Clerk grants dispensation to be absent from a vote, usually as a matter of course unless directed not to by leadership. However, typically the member makes the pending absence known in advance, and leaving right before the vote is kind of odd. And it sure is interesting that vulnerable GOP members like Minnis and Boquist turned out not to be there...I wonder if any of the Senate M37 claimants will be no-shows on debate day? We'll have to see.

All in all, it's a half a loaf for Oregon, but if it passes and is ratified by the voters much of the bad law in M37 will be eviscerated, and that's good.

*Oregon Department of Land Conservation and Development