HOUSE COMMITTEE ON LAND USE AND REGULATORY FAIRNESS

 

 

March 15, 2001                                                                                                   Hearing Room 357

4:00 p.m.                                                                                                                             Tapes 5-6

 

MEMBERS PRESENT:         Rep. Max Williams, Chair

Rep. Kurt Schrader, Vice-Chair

Rep. Chris Beck

Rep. Betsy Close

Rep. Kathy Lowe

Rep. Susan Morgan

 

MEMBER EXCUSED:          Rep. Karen Minnis

 

 

STAFF PRESENT:                 Virginia Gustafson Lucker, Counsel

Jane Bodenweiser, Committee Assistant

 

 

MEASURE/ISSUES HEARD:           Land Use & Regulatory Fairness

 

 

These minutes are in compliance with Senate and House Rules.  Only text enclosed in quotation marks reports a speaker’s exact words.  For complete contents, please refer to the tapes.

 

TAPE/#

Speaker

Comments

TAPE 5, A

005

Chair Williams

Calls the meeting to order at 4:10 p.m.

009

Gov.  John Kitzhaber

Governor, State of Oregon

Testifies about land use issues and Measure 7.  Says based on conversations with citizens, community leaders, representative of business and labor and environmental organizations, he has concluded the following broad areas to address: fair compensation legislation, no rollback of current environmental laws and land use laws, and means to provide compensation that does not force implicit reductions in public service areas.  Comments that this committee faces a difficult task in creating a fair system of compensation and designing new ways of dealing with state and local regulations associated with Measure 7. Offers his full support of this committee.

056

Rep. Close

Asks about the “lot of record” issue, and wonders if there is any room for review.

069

Gov. Kitzhaber

Replies that he feels that through the passage of HB 3661 in 1993, and SB 379 in 1997, substantial steps have been taken to address the issue.

082

Chair Williams

Wonders about the need for identifying some source for compensation and when it should be addressed.


 

096

Gov. Kitzhaber

Says that he agrees that it must be addressed, and should come after the policy differences have been resolved.  Discloses that there are a number of provisions in existing law that provide compensation.

115

Rep. Beck

Discusses measures that have ultimately been declared unconstitutional, and wonders about Measure 7 with regard to the role of this committee.

133

Gov. Kitzhaber

Replies that it is a complicated issue, but one that demands public attention because it is important to the people and it isn’t going away.

155

Rep. Lowe

Wonders about the time issue as the measure goes through the courts and asks about a stalling tactic.

169

Gov. Kitzhaber

Says that a stall tactic is not prudent.  Says that the issue of fundamental fairness needs to be addressed.

200

Jana Jarvis

Oregon Association of Realtors

Says they took no position on Measure 7 because of the wording of the measure and its potential impact on communities. Says that when planning and zoning regulations go too far by creating undue burdens and hardships on landowners, the regulations themselves undermine communities and destabilize markets.  Says there are 2 kinds of unfair land use regulations. Proposes a simple constitutional amendment, plus a state variance law. 

357

Vice Chair. Schrader

Wonders about the simple constitutional amendment she is referring to that does not have funding or definitions to address this issue.

363

Harlan Levy

Staff Attorney, Oregon Association of Realtors

Replies that it might be advisable to amend Article 1, Section 18 of the Oregon Constitution to include the word “damage” to the takings clause, as some other states have done.

 

380

Rep. Schrader

Inquires if some definition and some other requirements would be needed in the constitution in order for the Realtors’ proposal to work.

383

Levy

Replies not necessarily, but it is one possible solution.

393

Vice Chair Schrader

Wonders about the problem of different interpretation.

408

Levy

Replies that is a concern that the legislative body would have to address.

410

Vice Chair Schrader

Asks for examples of other states’ amendments.

415

Levy

Says he will be happy to provide that information to the committee.

416

Rep. Morgan

Asks about the variance issue and compensation.

424

Levy

Replies that variance law is used to prevent undue hardship.

445

Rep. Morgan

Asks if compensation might be the granting of a variance.

448

Levy

Says that would be one option, but not necessarily the only option.

TAPE 6, A

017

Rep. Beck

Asks where to draw the line on determining compensation.

024

Jarvis

Replies there is no easy answer.

038

Rep. Beck

Talks about loss of value to landowners and wonders what the realtors want in terms of a percentage.

044

Jarvis

Says they have not come up with a percentage.

046

Rep. Beck

Asks if it would be fair to say Realtors’ concerns tend to be inside urban growth boundaries.

059

Jarvis

Replies that they are not specifically interested in those lands within an urban growth boundary.

067

Rep. Close

Asks about the percentage taken by the Oregon Courts in “takings” issues.

073

Levy

Replies that Oregon courts follow the same interpretations as the federal courts.  Explains the difference between regulatory and compensatory takings.

080

Rep. Close

Asks if that means in Oregon the percentage has to be 100% for compensatory takings.

081

Levy

Replies, yes.

083

Vice Chair Schrader

Asks if we should limit the specific lands that Measure 7 would address, as other states do.

089

Levy

Replies that relief from excessive land use regulation is what the Realtors’ hope will be addressed.

099

Vice Chair Schrader

Asks about how they would suggest the funding issue be addressed.

106

Jarvis

Replies that there has been much discussion on this issue.

118

Tim Bernasek

Oregon Farm Bureau

Submits testimony and testifies on Measure 7 (EXHIBIT A).  Discusses the definition of property rights and how it has evolved over time.  Expresses the need for individual owners to be made aware of limitations on the use of their property before coming into ownership.  Says that when changes in land use are for the “public good”, individuals should be compensated for any loss they may incur.

255

Don Schellenberg

Oregon Farm Bureau

Submits testimony and testifies on Measure 7 (EXHIBIT B).  Says that the Bureau took a neutral stand on Measure 7 for 3 reasons: they (l) support compensation for regulatory taking; (2) strongly support land use planning as a protection of the agricultural infrastructure; (3) contend that Measure 7 did not provide a method for funding the compensation for regulatory taking.

306

Rep. Close

Asks about the inalienable rights discussed by Thomas Jefferson with regard to property.

326

Bernasek

Replies that Jefferson thought that for American society to best serve democracy, it should be made up of small landowners.

369

Rep. Morgan

Asks for an example of regulatory takings for which there was no compensation given.

378

Schellenberg

Gives examples.

390

Rep. Morgan

Asks if the Farm Bureau would view a variance as compensation.

398

Schellenberg

Replies that they would be concerned about its application to farmland.

416

Vice Chair Schrader

Asks at what point in time is primary zoning determined.

425

Bernasek

Replies that would depend on individual circumstances.

TAPE 5, B

025

Rep. Lowe

Asks about the statute of limitation and if compensation is due when a landowner has been informed of a use change and did nothing about it for many years.

045

Bernasek

Replies that this would be a case-by-case situation.

062

Rep. Lowe

Regarding compensation - wonders about notice of an intended change being given an owner who in turn fails to act or protest.

071

Bernasek

Says he does not know.

076

Mitch Rohse

American Planning Association

Submits testimony and testifies on Measure 7 (EXHIBIT C).  Talks about the areas he hopes the committee will address.  Expresses his desire that any action by the committee would not be retroactive.

211

Rep. Lowe

Asks if there may be a rippling effect of “takings” claims.

226

Rohse

Says that is exactly correct.  Asserts that there are benefits to regulation that are often ignored, and that under Measure 7, that protection may be in jeopardy.

250

Dorothy English

Portland, OR

Submits Testimony and testifies in support of Measure 7 (EXHIBIT D). Discusses problems she has had with the county regarding the division of her property in the west hills of Multnomah County.

328

Betty Wiemers

Fall Creek, OR

Submits testimony and testifies in support of Measure 7 (EXHIBIT E).  Expresses her concerns about the land use regulations that have changed the use of her property making it impossible to divide and sell it.

389

Marguerite Coxe

Oregon City, OR

Submits testimony and testifies in support of Measure 7 (EXHIBIT F). Talks about the change made by the Land Conservation and Development Commission (LCDC) to her property making it impossible for her to sell a 10-acre parcel to help her financial situation.

433

Rep. Lowe

Asks Mrs. Coxe to identify her property.

438

Coxe

Replies.

455

Rep. Lowe

Asks if development has surrounded her.

457

Coxe

Replies, yes there are houses all around us.

TAPE 6, B

027

Paula Krane

President, League of Women Voters of Oregon

Submits testimony and testifies in opposition to Measure 7 (EXHIBIT G).  Says that the League supports the Speaker’s principles and would include one to address identifying revenue sources required to pay for qualifying claims.

051

Rep. Close

Asks why the League deems the issue of revenue sources necessary.

060

Krane

Contends that it is not necessary to compensate in all cases, but the integrity of our land use process needs to be maintained.

073

Chair Williams

Adjourns the meeting at 5:45 p.m.

 

Submitted By,                                                                           Reviewed By,

 

 

 

Jane Bodenweiser,                                                                    Virginia Gustafson Lucker,

Committee Assistant                                                                 Counsel

 

EXHIBIT SUMMARY

 

A – Written testimony submitted by Tim Bernasek, dated 3/15/01, 3 pp

B – Written testimony submitted by Don Schellenberg, dated 3/15/01, 1 p

C – Written testimony submitted by Mitch Rohse, dated 3/15/01, 5 pp

D – Written testimony submitted by Dorothy English, dated 3/15/01, 1 p

E – Written testimony submitted by Betty Wiemers, dated 3/15/01, 1

F – Written testimony submitted by Marguerite Coxe, dated 3/15/01, 1 p

G – Written testimony submitted by Paula Krane, dated 3/15/01, 1 p

H – Written testimony submitted by Brooks Koenig, 1 p