Land Use in Oregon and Measure 37 the day the world turned upside down

Carrie RichterGarvey Schubert BarerPortland, Oregon

crichter@gsblaw.com

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The Origins of Zoning

• First zoning in Oregon occurred in the City of Portland in 1918 and withstood court challenge in 1925.

• Age of skepticism from 1946-1969 – change or mistake in original zoning

• Fasano v. Board of Commissioners – decisions must be consistent with a comprehensive plan and parties must receive notice and an opportunity for hearing.

• 1961 – Agricultural assessment deferral program – EFU system is created

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Senate Bill 100 • Emerged from desire to preserve state’s

resource based economy and to avoid the pig in the parlor or glue factory next to day care result.

• Created a Land Conservation and Development Commission (LCDC).

• LCDC composed of 7 members appointed by governor with one member from each congressional district with no more than 2 from the state’s most populous county.

• LCDC charged with adoption of statewide planning goals and ensuring that all local governments land use plans and regulations are consistent with those goals.

• LCDC created the Department of Land Conservation and Development to review decisions and ensure goal compliance.

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The Goals

There are 19 land use goals including:• Goal 1: Citizen Involvement• Goal 2: Exceptions Process• Goal 3: Farmland Preservation• Goal 4: Forestland Preservation• Goals 5-8 : Resource Management• Goals 9-12: Development Goals• Goal 14: Urbanization (UGB)• Goals 15-19: The Greenway and

Coastal Goals

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Acknowledgment and Periodic Review• Acknowledgment is the formal

recognition by LCDC that local plans and regulations meet the goals.

• Once acknowledged, the goals no longer apply directly to quasi-judicial land use applications. They do apply to legislative decisions such as plan amendments.

• Between 4 and 10 years after acknowledgment, a local government must evaluate its plans and regulations to determine whether they are still compliance with the Goals. Work projects allow step by step review of these regulations.

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Measure 37 provides:

a general statutory right to “just compensation” for “lost value” of real property due to land use regulations, or, alternatively, waiver of those regulations enacted after acquisition of the property by the “present owner.”

• Measure 37 passed: 61% / 39% and took effect on December 1, 2005.

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High (Low) lights of Measure 37

• Exceptions – public health and safety and federal laws

• Dual filing obligation• No transferability – very limited vested rights• No procedure or submittal requirements for

filing claim• Local government must take action on a

claim in 180 days or claimant may seek relief in circuit court

• One way attorney fee provision• If waiver granted, land use review must

occur under whatever standards in place at time property was acquired.

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State Claims by the NumbersAs of April 27, 2007:

7,563 Measure 37 claims received by DLCD

700,529 acres – Median claim 33 acres

More than $10,448,335,417 total compensation requested for these claims.

Compensation per acre ranges from: $138,619 for land at the coast$101,434 in the Willamette Valley around $50,000 in the southern, central and eastern parts of the state.

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M 37 Claims by the Numbers

71% of the claims and 78% of the acreage impacts farm and forest resource lands.

12% of the claims and 20% of the acreage impacts non-resource lands.

Type of Claim:19% of the claimants seek to partition lands into 3 or fewer lots35% of the claimants seek to subdivide lands into 4 or more lots. Waivers to allow subdivision impact more than 40% of the total acreage currently subject to Measure 37.

Source: Portland Statue University; Institute of Portland Metropolitan Studieshttp://www.pdx.edu/ims/m37database.html as of December 1, 2006.

Jurisdictional Distribution: Counties: 99% Cities: 1%

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Metro Area Claims by Size (Nov. 2006)

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Effects of Measure 37

Disrupt Urban Growth Management UGB: Expansions made more difficult

Cost Taxpayers for Urban Service Extensions Disrupt Adjoining Farm & Forest Operations

Uncertainty Looms

Local LU Decisions Colored by M 37 Staff & Budget Resources Diverted to Claims Processing

“Comprehensive Planning” Affected

Courts Will Decide Threshold Questions (Not Governor or Legislature)

Value Added Capture Proposal to Buy Land and Development Rights (Fair Growth of Farmland Proposal in Portland Region)

New Oregon Task Force on Land Use Planning May Recommend New Vision Policy Direction

Possible Future Initiatives