Measure 37: The Week That Was

By now, if you were interested in the story to begin with, you know that Measure 37--Oregon's citizen revolt against the supremacy of land-use planning--was overturned in Marion County a little over a week ago. Citing five separate conflicts with state and federal constitutions, Judge Mary James was near-total in her agreement with 1000 Friends of Oregon and a coalition of farming interests.

I have been following the case fairly closely, although the timing of the decision caught me a bit by surprise. And I don't think in the leadup to the decision that I ever heard a relatively objective expert confidently say, "This is gonna go down." So the emphatic way in which 37 was overturned has sparked a flurry of response from all sides, as well as litigants in current M37 claims.  [I won't pull them all out of context and reprint them here, but they are sprinkled throughout the links I'm citing.]

By Tuesday, counties and claimants were trying to assess the current and future status of their deliberations:

"They're all asking, 'What does this mean?' " said Mike Brandt, planning director in Yamhill County. "And the typical answer was, 'I don't know.' "
James' ruling stamps out all Measure 37 building opportunities unless construction crews are already legally at work, the consensus goes.
Measure 37 supporters can ask James to allow claims to go forward during the appeals process. Such a decision is unlikely, putting the measure on hold until the Oregon Supreme Court decides its fate.
"Like so much else under Measure 37, there will be degrees of uncertainty until then," Shetterly said.

Everything is on hold in the short term until the judge rules on whether to grant an injunction on making the ruling effective immediately. The sides argued their cases on Friday, and The O noted that a denial of the injunction is expected. Which means everything grinds to a halt until the Appeals Court rules or grants an injunction.

For a measure that passed with such strong statewide support, is there a revolt amongst the masses? Are people in the streets  wielding torches and pitchforks (and levels and carpenter nails and blueprints?)  Depending on what you think of the O's selection bias when it comes to letters to the editor,  there may be a couple torches, but also a number of supportive voices. The most entertaining was a torch song:

In her decision on Measure 37, Marion County Circuit Judge Mary James wrote, "A government cannot be forced to choose between exercising its plenary power to regulate for public welfare, health or safety, or paying private parties to comply with the law." And, "Because Measure 37 currently imposes limitations on the government's exercise of plenary power to regulate land use in Oregon, it is unconstitutional."

Limitations on government is what it's all about. Has Judge James read The Federalist Papers? Has she heard the term "limited government"?

It took 30 years of pain before the people spoke in two different elections, but the black-robed tyrants still have not gotten the message. They would bond the people who want to be free.

They favor a socialist collective, which is what the Land Conservation and Development Commission is, versus people making their own choices. They would put the decisions in the hands of unelected bureaucrats to service their agendas while they give lip service to the environment, at the expense of landowners.

PRESTON DREW Vice president Citizens' Alliance for Property Rights Enumclaw, Wash. www.proprights.org [emph mine, wingnuttery his]

So what now? I should mention that the day after the decision, The O came up with an idea that try as I might, really sounds horrible: have the Bowlinator call a special session. Doesn't that sound like a capital idea? Bringing back Karen Minnis for another joyous session? Yecch. The last thing this issue needs is more partisanship. The House will make something barely weaker than the current version; the Senate will draft something different, and neither the twain shall meet.  The Hillsboro Argus couldn't resist saying "I told you so" on Thursday. Literally:

The judge also cited trashing legislative laws on land use. So as counties all over the state scratch their collective heads and wonder just where this is all going to end up, don't say we didn't tell you so.

After it ends up in the Oregon Supreme Court, it will get tossed back to the Legislature. Taking on the life of a resurrected ghost, it will become a political hot potato and could put a Republican in the governor's office for the first time since the rocks cooled after the Vortex Concert. Where's Tom McCall when you need him?

I'm not sure I'm buying the electoral rhetoric, just given the state of things politically in Oregon and the rest of the country, but they're right that adding the Legislature is just going to add another layer to the problem--at least in the fashion of a highlighted session to address the problem.

The Portland Tribune and the Statesman-Journal both have hopeful outlooks from the decision, offering the useful advice that this is an opportunity to take a broad look at land use policy. The Trib wants to vest faith in "The Big Look," a task force first due to report to the Legislature in 2007. But the SJ gives an ex-OSU professor a chance to offer the most concrete set of ideas, thank God,  to help bridge the gap in rhetoric:

The first one deals with building a home on existing parcels. If a local unit of government allowed the creation of a legal parcel, then let people build a home on it, provided they can get a septic permit, find water and meet all of the other zoning restrictions. There are many parcels out there right now that were purchased with the intent to build a home and, because of a zoning change, it no longer can be justified. My advice to the Legislature; Just do it! It will not impact the rural areas as much as you think.

Next, provide landowners with tools that will let them keep their land in farming and at the same time fend off the very lucrative temptation to sell for development. One of the most noted of these tools is called Transfer of Development Rights. It offers a financial mechanism for landowners to sell the development rights to their property and realize the value of that development while keeping their property in its current use. Currently, 37 states have laws enabling TDRs. By now, it is not an experiment.

I urge everyone who is interested to read over the ruling cited above. Once you move quickly past the procedural stuff described in the beginning, the ruling is pretty clearly set out and explained, violation by violation. For a counter that is certainly not objective but at least seems to get the argument being made by James, the Oregonians who are not one of your 1000 Friends but who are in fact In Action offer one here. Assuming that the memo was crafted by Kelly Clark, you can assume many of these same assessments of James' ruling will be cornerstones of the app
eal(s).

Update 10/26 12AM--
There's a good column by Russell Sadler at Blue Oregon, followed by a fairly lively debate over the principles of the ruling, and who may participate in that debate. Also also--damned if I can find it at the cesspit that is OregonLive, but today's  morning print edition noted that Judge James denied the state petition to enjoin repeal of Measure 37 as appeals proceed. So any counties that were still processing may soon opt to stop, given that it would seem we are talking months, minimum. Score one feebly for The O; they called that one right.

--TJ

Comments

[Richard Bolcavitch]

Given the poor legal wording of M37, I am surprised that it was even granted a ballot slot.

And the property rights folk have no sense of history. If they did, they’d realize the property they now hold was unjustly acquired by the Federal government from the indigenous population.

Robert Miller of Lewis and Clark Law School gives a nice short summation of it.

http://www.indiancountry.com/content.cfm?id=1079969407

[torridjoe]

thanks for the link and comment. I found one LTE in The O raised a good point that you allude to: why do we wait to have a constitutional review until AFTER the vote? It would save us a lot of time and energy to at least give a quick thumbs-up from someone--perhaps an independent judicial panel.