Measure 37 and fairness
by Sid AndersonOctober 24th, 2005 at 13:27:42
Yesterday’s Oregonian had a clear-minded opinion piece by Adell Amos, assistant professor of law at the University of Oregon, that argued in favor of the recent legal decision that overturned Measure 37, which had overturned Oregon’s longstanding land-use laws. She articulates perfectly, in lay-people’s terms, the basis for the court ruling:
For the individual property owners in this case, and for many other Oregonians, Measure 37 negatively impacts their property rights. The landowners who filed this lawsuit had purchased property under existing land-use rules and had relied on those rules to protect their livelihood and investment. These plaintiffs operate businesses, run farms, provide jobs, contribute to the economy and pay taxes. For these property owners, land-use regulations protect the value of their property. Measure 37 changed the rules of the game after they purchased land — just as Measure 37 backers claim the Oregon Legislature did in 1973, when it enacted a comprehensive land-use law. [...]
[...]David Adams, one of the plaintiffs, purchased his property after the land-use regulations were in place; his neighbors purchased their property before the land-use regulations were in place. Pursuant to an application under Measure 37, the neighbors received permission, despite existing land-use rules, to subdivide their property… If the county wanted to enforce the land-use law on the neighbors’ property, compensation would be due. Adams, however, receives no payment for his compliance. And, if the development causes Adams’ property value to diminish, he receives no relief under Measure 37. Here, the court found, among other things, that Measure 37 violated the Oregon Constitution because it created a special class of property owners that receive benefits unavailable to other property owners. [...]
(emphasis mine)
She goes on to say that the ongoing debate over Oregon’s land-use laws could be settled fairly at the legislative level rather than the ballot box:
Our representative institutions, duly elected by the people, are specifically designed to strike a fair balance among competing interests such as those at issue in the debate about Measure 37.
Let’s hope so.
October 24th, 2005 at 9:12 pm
But, from the Amos piece, is the illogical notion that adjoining development will reduce the value of their land. It would effect their ability to make a particular use, farming, but that is an entirely different matter.
I have witnessed the evaporation of nearly all the farm related stuff from the Damascus area. It is just a reality. I cannot turn the clock back, other than just barely long enough to perhaps raise some kids on a so-called farm. Sure, one could still grow nursery stock. But the land, as a commodity, has a higher value for development.
I do not think that the farming-use-only argument would survive a challenge at the SC. It provides enough of an interest for standing to raise a claim, and perhaps even to restrict a particular set of neighbors. But it will certainly not be sufficient for the SC accept that eh farm-use-only argument should serve as a sort of catch all test to restrict development. Apply it to a minor UGB boundary change request to metro where a farmer just outside the proposed new-UGB line objects. One could again make an EPI argument there too. It would create little bubbles of non-developable land around individual pieces of farmland. These bubbles would thus serve as a sort of new UGB based not on the containment of urban growth within set boundaries but enable development all over the place (after a new measure or two) but for these little bubbles of holdout farmers.
The EPI argument really has applicability to the very notion of a UGB at the outset. The farmers, and the folks hoping to build in the future, are one class of folks outside the UGB while the landowners within the UGB are the other class.
Someone has to hand the SC a test that they can live by, and that will stand the test of time. Amos’ simplicity is just a micro issue within a larger panoply of parties and legal issues.
The SC will make every effort to resolve a matter without addressing grand issues unless forced to by the absence of lower level authorities that can conclude the matter. So, when I say that my parents divided their land, a century farm, it is to say ho hum the M37 claimants could have too, so what. Their claim of harm is that they did not divide, way back when. The purchasers could have entered into a contract with the sellers to split the gains or losses between them from the vagaries of future land use rules, inclusive of total removal of the UGB. Such changes are less likely to be the result of government favors or differential bargaining power if they result from legislation that conforms with EPI.
If later purchasers demanded, as a remedy, to merely be given the same rights as the M37 class, then how would the EPI determination itself inform whether they too should be granted such development rights? It is based on the whim of the party presenting the case. The SC will consider just such an alternative proposition. The Amos piece is not sufficient by itself to rebut such a challenge.
October 24th, 2005 at 10:20 pm
Ron said:
But, from the Amos piece, is the illogical notion that adjoining development will reduce the value of their land.
It’s not illogical at all. If one pre-1973 land owner can build a 200 lot subdivision next to a farm that happens to be owned and operated by a post 1973 owner, the post 1973 owner not only has trouble in continuing to operate a farm next to a subdivision, but he/she can not develop the property because it’s post 1973 land. It devalues the property because it becomes questionable farmland, but it can’t be subdivided because it falls under Oregon’s 1973 land-use laws.
October 25th, 2005 at 8:02 am
“but he/she can not develop the property because it’s post 1973 land.”
That is a class. But that is unrelated to farming for one EPI analysis.
The sequence of the consideration of matters might offer a clue.
The desire to build is different than claiming harm based on a desire only to farm and having to endure a neighbor’s development.
If someone makes the preliminary determination that the pre post 1973 ownership class thing is not a violation of the EPI, then, because they cannot build, then their claim for harm is not the lack of freedom to build but only the harm to farming . . . but only if the class split is considered OK.
The EPI class split must be assumed to be valid if one sets out at the outset to assert harm based on a desire to farm. Or, it assumes that the challenges based on EPI would be rejected.
If the EPI violation is found then the two classes need only be treated equally. Thus the waive-or-pay thing must either apply to all or none. The judge got mushy so as to not make the hard choice as to the proper remedy for an EPI violation . . . which could have included the option of giving a waive-or-pay thing to everyone. She punted to the supreme court, effectively. (Not unlike Judge Bearden in the Multnomah County case on same-sex marriages.)
The farming-interest-harm is very fact specific, so much so that the remedy could be isolated to the precise parties that are represented in the action. This excludes 1000 Friends, who’s standing will likely be rejected in a single sentence, or perhaps a small paragraph.
The highest-and-best-use thing, involving higher values, is something for which a judge could merely consider via the device of taking judicial notice. That is, it is basically understood by all that higher development is correlated to higher value. It is a fact thing that is more likely to lead the court to find, as a matter of law rather than fact, that the statewide application of the EPI violation issue is proper for consideration. You have to distinguish between the narrow set of parties in the case and an equally narrow remedy and the alternative of a statewide application to all that results from the declaration of invalidity of M37.
Remember, my primary objection is to the payments. My concern is statewide. The case could be confined to the precise parties and the specific M37 claimant at issue, and no one else.
As it stands, the invalidation of M37 could be distinguished to apply only where there is a farmer nearby to a M37 claimant and that farmer wants to farm rather than develop, and that farmer presents evidence of harm in a court action. (Read the Utsey case if you really want to get dizzy from details.)
I support liberal application of EPI on a number of fronts, so I was happy to see it applied, even if only haphazardly. (Read the State v. Clark case for a discussion . . . across a range of factual contexts.) I would like one day to get to the notion of matching a person against a corporation in the context of EPI so as to free myself from the specter of the feds trying to collect on a state judgment that has already expired by operation of law. I have exhaustively researched the EPI cases hunting for little openings. I do wish to save other folks, rather than just myself, from being treated as corporate slaves by virtue of corporate takeover of the citizen legislature.
October 25th, 2005 at 9:48 am
I feel the differfence is that the post-1973 landowner purchased their property with the knowledge of the restrictions imposed by land-use laws, while the pre-1973 landowner had the land use changed without his permission or, in many cases, his knowledge. I think that was probably the basis for M37 being passed by such a wide margin. In our case, we have a 36 acre piece of property, and it is zoned for farming use only. It’s difficult to raise any kind of practical crop that will do much more than pay the taxes. Property all around us has been developed, and when we lime or disc our field, the wind blows everything onto the neighbors. We have been asked several times by our neighbors if we could do something else with our property, and we would like to, but we’re restricted by the land use regulations.
October 25th, 2005 at 11:23 am
Gene-
Perhaps you think it is difficult to raise crops on 36 acres of land and make any money at it, but right now there’s a new economy developing in Oregon that’s based on an old concept: the buying of locally raised produce. Because of stores like New Seasons Markets, Market of Choice, the co-ops, etc., along with the farmers markets and restaraunt sales, farmers are making a living. My mom is one of those farmers. She sells at the Portland Farmers Market and has several restaraunt accounts and she can’t keep up. She’s had to turn several restaraunts away because she sells out every year, and every year she plants more and keeps selling out.
Every small farmer my mom knows has the same problem, which can only mean one thing: There’s a need out there. There are lots of people like my mom, along with young people who have decided they want to farm. You may think your 36 acres is worthless, but there are entrepreneurs out there who would love to buy your land so that they could start a business.
Willamette Week recently wrote a piece on the growing business of small farms in Oregon. It’s really interesting. I think you’d be surprised to find out how much money can be made running a small farm the size of your acerage. Read it and let me know what you think.
October 25th, 2005 at 11:35 am
Gene-
Here’s a clip from that Willamette Week article:
Buried in dry data spreadsheets cranked out by the U.S. Department of Agriculture lies a dramatic tale: At a time when small farmers are dying out across America, the number of farmers in Oregon is on the rise. The latest USDA “agriculture census” showed the number of full-time farmers in Oregon increasing more than 55 percent from 13,884 in 1974 to 21,580 in 2002, the last year the USDA surveyed. Part-time farming, where many growers who specialize in farmers markets and other buy-local niches begin, is up, too.
I wonder if Oregon’s land-use laws played a role in this? Maybe?
October 26th, 2005 at 6:59 pm
Sid-
I read the article. Interesting reading. I passed it on to my relatives who are involved in the M37 issue, and we all agreed it was an avenue we weren’t aware of.
It’s really too bad that land-use laws were passed without the voters having a say in the matter. It sure would have made thing easier today.
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