Foes in the battle over Oregon’s controversial Measure 37 met in a symposium at Knight Law Center Friday. Much of the debate focused on ambiguities of the law, such as what is a valid claim, which government bodies have the right to give waivers and whether Measure 37 rights are transferable or not.
Oregon voters approved Measure 37 last November, and the law went into effect last December. The law allows property owners who file claims to receive compensation when new land-use laws restrict how they can develop their land. Governments can either pay the owners or waive the new law, allowing owners to use their property as the law allowed at the time of acquisition.
“For government, we didn’t know what the measure meant in terms of what does it really take to have a Measure 37 claim,” Eugene City Attorney Glenn Klein said.
Klein noted that the lack of a legislative answer this summer means the city is “going to spend an awful lot of money litigating over what the measure means.”
Bill Moshofsky, vice president for government affairs for Oregonians in Action, the group that authored Measure 37, said that while officials in the Oregon ballot measure process encouraged his group to craft a more compact and readable measure, the law is acceptable as written.
“We believe the measure is clear enough to point the way in almost every direction in order to carry it out,” he said.
Moshofsky said the law’s critics have exaggerated its ambiguities.
The Oregon Legislature attempted to rewrite and clarify parts of the law and the claims process in its session this summer but was unable to reach a compromise. Oral arguments were held in Marion County on Sept. 13 in a lawsuit by 1000 Friends of Oregon that challenged the constitutionality of the law.
Panelists and speakers at the symposium discussed the effect the law will have on land-use planning. Many panelists are concerned that cities would be less likely to change land-use policy because of possible Measure 37 claims and the uncertainty about how they will be handled.
“A new land-use law creates a city full of claimants,” Klein said.
Carrie Richter of the law firm Garvey Schubert Barer said she is concerned that governments will be paralyzed into inaction because of the law.
“What I fear is the lack of planning and the fear that will result from Measure 37 and its ilk as it evolves,” Richter said.
Others see Measure 37 as a deterrent to land-use policies that have already gone too far.
“To the extent that Measure 37 inhibits some of that, more power to it,” Moshofsky said. “Measure 37 provides a much-needed balance.”
The future of the law is currently up in the air, and while members of Oregonians in Action are confident they will win the constitutional challenges, Carrie McClaren of 1000 Friends of Oregon believes the law will eventually have to change.
“I don’t think, as written, the law will be the same in 15-20 years,” McClaren said.
While most of the proceedings centered on the legal issues surrounding the law, the political flavor of the debate was not lost.
The issue of whether or not Oregon voters understood the measure when they approved it was brought up frequently, and a discussion on the death of the rewrite in the legislature offered the opportunity for each side to point to the other as the cause of the meltdown.
“I think most of the issues are political issues disguised as legal issues,” Oregonians in Action Director of Legal Affairs Ross Day said after the symposium.
Despite the strong feelings, the symposium was more an academic debate than an emotional confrontation; the panelists traded opinions on different facets of the law instead of shouting each other down.
The possible tension was made light of in a panel on Measure 37 litigation. McClaren skipped a part of her presentation and said if it happened again to “just kick me.” The crowd broke into laughter and Day offered his assurance that he and McClaren were friends and that he wouldn’t “kick her now.”
“Just because we disagree with each other doesn’t mean we want to slit each other’s throats,” Day said after the panel. “We can disagree without being disagreeable.”
The symposium was sponsored by the School of Law’s Journal of Environmental Law and Litigation.
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