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Many local governments have now adopted what
they describe as "Measure 37 Implementation Ordinances".
We have provided a link to the local governments who have drafted or proposed ordinances
"implementing" Measure 37.
As an initial matter, many of these draft ordinances are a
reaction to a "legal opinion" offered by an attorney in Eugene
who represents the League of Oregon Cities. This "legal opinion" is intended to
advise the government on how to continue to take away your rights. Accordingly, many of the proposed "implementation
ordinances" do not actually implement Ballot Measure 37, but instead
try to get around Measure 37, or worse, make it very difficult for you to
file your claim. This cartoon, which appeared in the The
Oregonian, accurately and succinctly relates what the state and local
governments are actually doing with Measure 37:
Here are some examples of local ordinance provisions which directly conflict with Measure 37:
1. Application Fees
2. Following local
government procedures to start the Measure 37 clock
3. Declaration of a
non-conforming use
4. Restrictions on
transferability of property that received a waiver
5. Allowing neighbors to sue neighbors
| Provision |
Why it conflicts with Measure 37 |
| Application Fee |
Subsection (7) of Measure 37 clearly
states that it is not necessary for a property owner to follow a
local government's "process" in order to pursue a civil claim in
court. Again, by requiring a Measure 37 claimant pay a fee,
local governments are trying to scare property owners from making
Measure 37 claims. Don't let this happen to you! You
don't have to pay the fee in order to start the process of
recovering your rights!
The reason this provision was inserted by the drafters of Measure
37 is really quite simple. In 2000, after the passage of Ballot Measure 7, many local
governments began to adopt ridiculously high application fees in an
effort to intimidate property owners from filing claims. The drafters of Ballot Measure 37 included subsection (7) as
an effort to avoid circumstances like those faced after the 2000
elections.
Besides, requiring a person to pay a fee in order to get their
rights back is like a bully making you pay him five dollars before
he gives you your lunch money back. You wouldn't pay the
bully, why pay the government?
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| Following
local government procedures to start the Measure 37 clock |
Many local governments, and the State of
Oregon, have concocted complicated Measure 37 processes designed to
discourage the filing of Measure 37 claims. For now, local
governments and the State of Oregon claim that if a Measure 37
claimant does not submit to the government's rules, the 180-day time
period in which the government has to make a decision does not begin
to run.
In other words, the government is attempting to re-define a key
provision of Measure 37.
Measure 37 only requires a property owner to make a written
demand for compensation on a government whose
ordinances/regulations/laws have caused the owner's property value
to decrease. After a property owner makes a written
demand for compensation, the local government has 180 days
in which to reach a decision on the demand.
Measure 37's 180-day clock starts to run when you (the property
owner) makes a written demand for compensation on the
government. The government cannot declare when the 180-day
clock starts, Measure 37 already tells us.
If your local government has included such a provision in its
local ordinances, please be aware that Measure 37 already addresses
to timing filing a Measure 37 in Circuit Court.
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| Declaration
of a non-conforming use |
Yet another common provision in local
ordinances are provisions that declare properties that receive a
waiver as "non-conforming" uses. If your local
government has adopted such a provision, the only explanation for
this provision is that your local leaders are trying to thwart the
intent of Measure 37. In other words, your local government is
listening to one lawyer instead of the voters.
Under Measure 37, a local government has the option to compensate
a property owner for the loss of property value created by a
restriction(s), or waive the offending restriction(s). The
intent and purpose of this provision of Measure 37 is perfectly
clear - to restore rights taken from the property
owner.
Under this local government ordinance provision, if the local
government chooses to restore your rights, that restoration is only
temporary in that your use becomes "non-conforming".
In other words, for all intents and purposes, the waiver you receive
nonetheless makes exercising your rights illegal.
This isn't the result the voters intended when they
overwhelmingly passed Measure 37. Nevertheless, local
governments have adopted these provisions in an attempt to make it
more difficult for property owners to exercise their rights.
By declaring "restored rights" as "non-conforming
uses", severe limits are placed upon one's ability to exercise
those rights, such as financing and building a home, expanding an
existing use, and selling your home.
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| Restrictions
on transferability of property that received a waiver. |
In what can only be described as a local
government's blatant attempt to be coy, many local governments will
waive a regulation on your property, but won't allow you to sell the
property with the waiver in place. In other words, if the
local government waives a regulation on your property, you cannot
sell the property until the restriction is placed back onto the
property.
Which in turn would lower the value of your property....
Which in turn would trigger another Measure 37 claim...
Which in turn would likely result in a waiver of the offending
regulation....
Which in turn would have to be "restored" on your
property before your could sell the property....
Which in turn would lower the value of your property.....
Which in turn would trigger another Measure 37 claim...
(are you beginning to notice a pattern here?)
As is the case with all of these local ordinance provisions, the
only explanation a local government can offer is that the local
government is trying to avoid restoring the rights the government
has taken from you.
Provisions like these - which result in a perpetual cycle of
litigation - frustrate rather than promote the underlying premise of
Measure 37 - the restoration of rights that the government took from
you. If you are granted a waiver by your local government
(and/or the state government), the rights you once had are restored
and you should be able to transfer those right as you see fit, just
as is the case in nearly every other real estate transaction.
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| Allowing neighbors to sue neighbors |
Under these provisions, local governments
allow neighbors located "in the vicinity" of property
owners who file claims under Ballot Measure 37 to file claims
against Measure 37 claimants for the loss of value as a result of
the new use created by the Measure 37 claim.
In other words, say you submit a Measure 37 claim, and the local
government gives you back your right to use your property. As
an example suppose your property and your neighbors property are
both zoned Exclusive Farm Use. After you file your Measure 37
claim, you are now allowed to subdivide your property into 2 acre
buildable lots. These ordinances allow your neighbor to sue
you if your neighbor thinks that subdividing your
property will lower his property value.
Again, these provisions are the result of a lawyer in Eugene who
hates the thought of property owners getting their rights
back. This attorney concocted this scheme as another effort to
dissuade property owners from filing claims under Ballot Measure
37. However, this scheme is poorly written and even more
poorly considered.
First, this scheme (in effect) declares the transfer of
property as a nuisance, and creates a private cause of action
based solely on the transfer of property. That means that in
the City of Eugene, the transfer of property is a nuisance, and
anyone can sue anyone merely for selling their home! This
scheme will very likely shut down all property transactions in the
City of Eugene.
Second, this attorney has concocted a scheme that will very
likely subject his client (the City of Eugene) to extensive civil
liability. Property owners who are sued by their neighbors
will simply implead -- or bring in -- the City of Eugene in any
lawsuit filed by a neighbor. Why? Because ultimately it
is the City of Eugene -- not the property owner -- who has caused a
reduction in the neighbor's property value. So the City of
Eugene would be liable for any loss in value.
The irony of the "neighbor suing neighbor" provisions
should not be lost on anyone. During the campaign against
Measure 37, many local governments (like Eugene and Portland) and
certain "friends" groups that opposed Measure 37 argued
that Measure 37 would result in costly litigation. Now, those
same groups that opposed "costly litigation" are enacting
local ordinances that will result in "costly
litigation".
The "neighbors suing neighbors" ordinances are
politically motivated and particularly reprehensible.
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Example Claim Letter/Form
(downloadable PDF files):
The
Good, The Bad, and Multnomah County - Local Government Measure 37
Ordinances:
Analysis
of Local Government Measure 37 "Implementing" Ordinance Proposals:
What the State of Oregon thinks:
The Oregon Administrative Rule for Measure 37
Claims:
How to get involved:
(Session convened January 16th, 2005)
Protect
Your
Vote!
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