HOUSE COMMITTEE ON LAND USE

 

 

February 14,  2005   Hearing Room 50

1:30 P.M. Tapes  18 - 19

 

MEMBERS PRESENT:            Rep. Bill Garrard, Chair

Rep. Gordon Anderson, Vice-Chair

Rep. Mitch Rep. Greenlick, Vice-Chair

Rep. Robert Ackerman

Rep. Mary Nolan

Rep. Patti Smith

Rep. Mac Sumner

 

STAFF PRESENT:                  Sam Litke, Committee Administrator

Lindsay Luckey, Committee Assistant

 

MEASURES/ISSUES HEARD:        

                                                Measure 37 Legal Issues - Informational Meeting

                                                HB 2438 - Public Hearing and Work Session

Discussion for Consensus on Measure 37 – Work Session

 

 

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 18, A

002

Chair Garrard

Calls the meeting to order at 1:38 p.m. and opens an informational meeting on Measure 37 Legal Issues. 

 

 

 

MEASURE 37 LEGAL ISSUES – INFORMATIONAL MEETING

011

Stephanie Stiffler

Special Counsel, Attorney General.

027

Stiffler

Notes that their opinions are only binding to state government.  Recalls the attorney general opinion issued for Measure 7 (2000) and discusses the difference in the current situation.

043

Stiffler

Describes the department’s priorities first in implementing Measure 37 and currently answering more specific questions as asked.  Reports that some of their responses have been made public and they anticipate more will be.  Defers to Richard Whitman.

077

Richard Whitman

Oregon Department of Justice.  Introductory comments on recommendations for areas of clarification by legislature or court.

091

Whitman

Announces the first major issue is in regards to state statutes.  Elaborates that it isn’t clear who has the authority to waive state statutes, specifically ORS 215 which governs farm use on rural land.  Notes that if local governments aren’t allowed to waive state statutes they will be liable for payment.

118

Chair Garrard

Asks if state ballot measures supersede existing statutes.

122

Whitman

Responds that in this case it does not necessarily supersede existing statutes as the ballot measure is not a constitutional amendment, rather a statutory initiative adopted by voters. 

128

Chair Garrard

Asks if he thinks there are two statutes in conflict because of Measure 37.

134

Whitman

Believes there are tensions between Measure 37 and state statutes.   Relays DOJ’s task of interpreting the measure so that it is in accordance with the rest of ORS 197.

150

Whitman

Reports the second ambiguity that would benefit from clarification is a question of ownership.  Elaborates on specific situations where land has transferred ownership raising a question of which date of ownership should apply.

173

Chair Garrard

Asks whether he would rather issue an opinion to have the courts debate or just let courts debate the issue.

178

Whitman

Responds that regardless of whether or not they issue an opinion there will be litigation over the measure.  Adds that even if they don’t issue a comprehensive opinion they are constantly issuing advice which is open to litigation.

198

Rep. Greenlick

Asks if there are any ambiguities in what kind of government actions are covered under Measure 37.

203

Whitman

Responds affirmatively noting that some parts are very clear while others are not. 

213

Rep. Ackerman

Comments that Measure 37 requires the filing of a cause of action in circuit court and asks if there are alternatives available to provide for a direct appeal to the court of appeals to circumvent the circuit court process.

219

Whitman

Responds that it is within legislative authority to do that but points out that the court of appeals usually reviews a record created by a circuit court or state agency.

229

Rep. Anderson

Asks how Whitman interprets the phrase “the governing body responsible for enacting the land use regulation” in Measure 37 (8).

240

Whitman

Responds that this language contributes to the first issue raised about state statutes.  Elaborates that the term “governing body” is used elsewhere in ORS 197 and usually means the body responsible for adoption or enactment of a law.  Explains who the body would be at various levels of government.

258

Rep. Anderson

Comments that the legislature would be wise to delegate this responsibility unless it wants to pay compensation or waive statutes.

260

Whitman

Agrees and urges clarification of delegating authority.

265

Stiffler

Refers to Rep. Ackerman’s previous question, commenting that ORS 293 has a review process in it that would likely apply to claims filed with the Department of Administrative Service (DAS), but under Measure 37, a separate circuit court process is authorized. Remarks that this would be a good place for clarification.

283

Chair Garrard

Asks for clarification on the process she just described.

291

Stiffler

Clarifies the process noting that using the same reasoning applied to their opinion for Measure 7 (2000), the same process would apply to Measure 37 claims.

300

Chair Garrard

Asks who created that.

301

Stiffler

Answers the legislature.

304

Whitman

Explains that it is a general process to deal with financial claims against the state.

306

Chair Garrard

Confirms that it is a broad process that would be adapted to this measure.

306

Stiffler

Agrees citing its use with DAS.

307

Rep. Ackerman

Asks what happens when there are appeals at various levels appealing multiple bodies from the same decision. 

308

Stiffler

States its possible.

309

Rep. Ackerman

States the necessity of having a consistent appeal process for every claim.

310

Stiffler

Comments it would be helpful to clarify this point.

315

Whitman

Adds that this raises a general question of what a claimant should do if contradicting opinions were issued by two separate bodies.

326

Rep. Anderson

Asks if the state were to delegate to lower levels of government, how they would deal with state agencies who have permits that would be involved with Measure 37.

334

Whitman

Responds that it would be best to “cover both bases”.

348

Chair Garrard

Comments on the “bottleneck” of proceeding and asks if there is urgency in the department to issue some opinions with regards to Measure 37.

378

Stiffler

Responds affirmatively.  Elaborates on the work currently being done.

384

Chair Garrard

Asserts that through DLCD they indirectly control local government.

389

Whitman

Discusses the coordination between state and local government and the conscious effort to provide guidance and not dictate action.

TAPE 19, A

011

Chair Garrard

Comments on the importance of helping local governments in timely manner and asks if there is a timeline when DOJ will begin to issue opinions.

031

Stiffler

Responds that what is issued publicly is not the choice of the DOJ but that they anticipate some advice being made public very soon.

038

Chair Garrard

Asserts that the DOJ has publicly noted that waivers would be non-transferable and asks for confirmation that it is their legal opinion.

044

Stiffler

Responds that it is their legal opinion and expects that opinion to be made public shortly.

047

Chair Garrard

Stresses the role of the DOJ as they begin the process of implementing Measure 37.

057

Chair Garrard

Asks if she thinks liability is a major issue.

059

Whitman

Responds that until determination is made on the authority to waive state statutes that it will remain an important issue.

060

Chair Garrard

Closes informational meeting and opens public hearing on HB 2438.

HB 2438 – PUBLIC HEARING

073

Sam Litke

Committee Administrator.  Explains HB 2438.

100

Harlan Levy

Oregon Association of Realtors.  Speaks in favor of HB 2438.  Submits and summarizes written testimony (EXHIBIT A).

155

Allen Johnson

Attorney, representing Bandon Dunes Destination Resort.  Submits written testimony and correspondence between DLCD (EXHIBIT B). 

175

Johnson

Asserts that the bill reinstates the exception process as it was originally written.

185

Johnson

Refers to DLCD correspondence (EXHIBIT B, Page 5).  Elaborates on the process and necessity of taking an exception.   

255

Johnson

Refers to (EXHIBIT B, Page 9) illustrating the success of the destination resort.

297

Chair Garrard

Asks if Johnson intends to submit amendments.

300

Johnson

Responds affirmatively, explains what the amendments would do and expresses willingness to accept the bill as written.

310

Chair Garrard

Asks if Levy objects to the amendments.

311

Levy

Responds that they do not object to the amendments as long as the consensus reached remains.

320`

Art Schlack

Association of Oregon Counties.  Speaks in support of HB 2384.

353

Ron Eber

Department of Land Conservation and Development.  Reports that the department supports the HB 2384.

373

Chair Garrard

Asks for their opinion on amending the bill.

375

Eber

Responds that he has no objection.

376

Schlack

Responds that he has not seen the proposed amendments but would have no objection if they do not derail the bill.

380

Chair Garrard

Closes the public hearing and opens the work session on HB 2438.

HB 2438 – WORK SESSION

400

Rep. Anderson

MOTION:  Moves HB 2438 to the floor with a DO PASS recommendation.

 

 

VOTE:  7-0-0

AYE:            In a roll call vote, all members present vote Aye.

410

Chair Garrard

The motion CARRIES.

413

Chair Garrard

Closes and reopens the work session on HB 2438.

415

Rep. Greenlick

MOTION:  Moves HB 2438  be placed on the CONSENT CALENDAR.

 

 

VOTE:  7-0-0

420

Chair Garrard

Hearing no objection, declares the motion CARRIED.

422

Chair Garrard

Closes the work session on HB 2438 and opens a work session for the purposes of discussion and consensus on Measure 37.

DISCUSSION FOR CONSENSUS ON MEASURE 37 – WORK SESSION

TAPE 18, B

003

Chair Garrard

Invites committee members to share thoughts and proposed directions for dealing with Measure 37.

013

Rep. Greenlick

Expresses concern that Measure 37 inhibits cities and counties from effectively zoning and planning in the future.  Asserts necessity to allow Measure 37 to compensate for grievances without being ruled by the “tyranny of the minority”.  Cites recent example of constrained necessary planning in Portland due to Measure 37 concerns.

051

Rep. P. Smith

Understands what Rep. Greenlick has stated but refers to the message sent by voters in two elections.  Believes the committee has an “opportunity” to clarify the language of the measure.  Comments that much of the testimony they heard is from those who have been involved in “writing the rules” and reiterates the importance of minding voters’ concerns.

069

Rep. Greenlick

Believes Rep. P. Smith raises an important issue.  Addresses a distinction  between logic suggesting that honoring the voters’ intent entails making changes to the measure as opposed to honoring the voters’ intent by leaving the language of Measure 37 the same and letting litigation determine the outcome.  Asserts voters didn’t intend for the implementation of the exact language of Measure 37.

090

Rep. P. Smith

Responds that she has been misinterpreted.  Reiterates the opportunity to clarify voters’ intent.

097

Rep. Nolan

Notes her agreement with Rep. P. Smith in her point on having an “opportunity”.  Comments on the diversity of opinions in Oregon and submits that all the voters that voted yes on this measure did not have the same objective in mind. Suggests that members, both individually and collectively plan meetings outside of Salem to listen to constituents and raise the concerns the committee has.  Stresses need to respect and honor voters’ will as well as existing guidelines at state and local levels. 

150

Rep. Anderson

Relays interpretation of people’s intent from town hall meetings held in his district.  Notes opinion that some people were hurt by land use planning and that Measure 37 is a “one shot deal” to rectify those infringements.  Asserts that unless state agencies are involved, counties should be in charge of waiving or compensating.  Urges discussion of liability and transferability issues within the committee.

213

Rep. Greenlick

Confirms Anderson’s belief that people voted for things that happened in the past, not that could happen in the future.

215

Rep. Anderson

Confirms.

220

Rep. Nolan

Elaborates on this reasoning and asks if they are suggesting a time limit on when people can make claims in order to rectify grievances but not  inhibit future development plans.

236

Rep. Greenlick

References his opposition to the bill and elaborates on understanding  of future implications of the bill.

350

Rep. Anderson

References Measure 37 (5) and notes its limitation for applications.  Notes the implication that it wouldn’t transfer to people in the future.

260

Rep. Ackerman

Discusses role of legislature in fixing elements of Measure 37.  Contends that they are “off track” in several ways and outlines issues to isolate and deal with:

  • ·         Standardize claims process or elements of claims process
  • ·         Standardize court process
  • ·         Consider time limits to file claims
  • ·         Transferability issue of waiver and possible time limit
  • ·         Issues of finance

307

Rep. Sumner

Comments on number of voters in his district who voted for Measure 37 and the number of people who would be affected by it.  Notes issues where Measure 37 will not apply.  Discusses transferability and compensation issues. Comments on local ordinances in place to cover eventualities.  Reiterates need to implement a workable system. 

374

Rep. Anderson

Relays a suggestion to compare county proposals to look for continuity.

397

Chair Garrard

Asks Art Schlack to provide county applications.

398

Art Schlack

Association of Oregon Counties (AOC).  Responds that they can provide that information.

400

Rep. P. Smith

Asks if there has been feedback from Multnomah county to present their actions on Measure 37 claims.

403

Chair Garrard

Responds they are currently in discussions and asks staff to contact the Multnomah Planning Department.

TAPE 19, B

014

Rep. Nolan

Asks if AOC will compile the information from all counties.

016

Chair Garrard

Confirms, noting that not all counties have made their information available.

022

Rep. Ackerman

Believes they have heard sufficient testimony and is uncertain of the benefit in looking over applications.  Would prefer a list of things that they felt should be standardized and those things left to local control.

034

Rep. Nolan

Clarifies that her understanding would be to have a review or analysis of the implementing ordinances the counties have put in place.  Continues that they would look for continuity and decide which issues are of statewide concern and which should be left to local control.

059

Chair Garrard

Reiterates the importance of local flexibility.  Suggest using Rep. Ackerman’s proposal as a base to begin evaluations.

067

Rep. Ackerman

States concern that counties aren’t addressing some of his concerns.

070

Chair Garrard

Suggests using Rep. Ackerman’s database to establish questions.

073

Rep. Ackerman

Agrees and mentions he will have bills coming out to address some of these issues.

082

Rep. P. Smith

Notes filing deadline of February 28th. 

080

Rep. Greenlick

Comments on representative democracy and the challenge of balancing majority and minority interests.  Notes the benefit the land use system has had on real estate values and asserts the potential for a gradual degradation of land value for everyone.  Concedes some bad decisions made in land use planning in the past and the asserts the need to correct those.  Reiterates the problems if cities and counties are unable to plan effectively for their communities in the future. 

155

Chair Garrard

Confirms that the feelings Rep. Greenlick expressed are shared by the committee members.

158

Rep. Anderson

Comments that Oregon’s land use laws are far more restrictive than the rest of the nation and expresses interest in bringing them back into balance while attracting more employers.

175

Chair Garrard

Closes work session on Discussion for Consensus on Measure 37 and adjourns the meeting at 3:13 p.m.

 

 

EXHIBIT SUMMARY

 

  1. HB 2438, written testimony, Harlan Levy, 2pp.
  2. HB 2438, written testimony, Allen Johnson, 11pp.
  3. HB 2438, written testimony, Ron Eber, 1p.