HOUSE COMMITTEE ON LAND USE

 

 

June 03, 2004 Hearing Room 50

1:30 P.M. Tapes  114 - 116

 

MEMBERS PRESENT:            Rep. Bill Garrard, Chair

Rep. Gordon Anderson, Vice-Chair

Rep. Mitch 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:

SB 863 – Public Hearing

                                                SB 413A – Informational Meeting

                                                HB 3120 – 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 114, A

002

Chair Garrard

Calls the meeting to order at 1:36 p.m. and opens a public hearing on SB 863.

SB 863 – PUBLIC HEARING

005

Don Schellenberg

Oregon Farm Bureau.  Introduces the members of the panel.  Speaks in support of SB 863 and explains its provisions.  Submits written testimony explaining the provisions and issuing support for SB 863A (EXHIBIT A).

039

Dave Vanache

Washington County Farm Bureau.  Submits written testimony in support of SB 863 (EXHIBIT B).

067

Dave Tonges

Tonges Farms, Hillsboro.  Submits pictures of the dwellings on their property they hope to replace (EXHIBIT C) and explains how SB 863 will benefit them.

083

Rep. Anderson

Asks if the purchase of the property was to expand their farm operation or to buy and hold these houses for another time.

 

Tonges

Responds that the houses came with the land.

 

Rep. Anderson

States that if they tear the houses down, they will have lost the value of the house.

 

Vanache

Explains they don’t want to lose the value that they already paid for although they may have preferred to buy the land without the houses on it. 

104

Rep. P. Smith

References Page 3, and verifies that they want the option to rebuild the dwellings as long as they own the property.  

 

Schellenberg

Confirms this.

 

Chair Garrard

Closes the public hearing on SB 863 and opens an informational meeting on SB 413A. 

SB 413A – INFORMATIONAL MEETING

121

Rep. Gene Whisnant

HD 53.  Reports that the committee had formed a work group with Rep. Ackerman and notes parties who are not satisfied with the language.  Discusses attempts at resolution of the issue.  Defers to Rep. Ackerman.

158

Rep. Ackerman

Gives background on SB 413 describing the court cases and appeals between private land owners and a public utility.  Discusses the possible rerouting of a line and possible continuing resolution outside of legislation. 

188

Chair Garrard

Closes the informational meeting on SB 413 A and opens a work session on HB 3120.

HB 3120 – WORK SESSION

200

Chair Garrard

Makes announcements and remarks they will not accept amendments today but will on Monday June 6, 2005.  Makes introductory comments opening a discussion on HB 3120 and Ballot Measure 37 (2004) (M37). 

255

Sam Litke

Committee Administrator.  References Section 4, pages 1-6 of HB 3120 -1 amendments (EXHIBIT D) which would replace the contents of the bill and discusses a large part of the content as coming from SB 1037.

284

Rep. Greenlick

Discusses the process which resulted in SB 1037 and wonders about the objective of the committee, noting possible directions to take.  Asks what criteria they will use to know they have succeeded. 

 

Chair Garrard

Responds that the committee will be focused on fixing known problems with M37 and addressing how to make it better.

 

Rep. Greenlick

Comments he agrees with the Chair but will not support expanding the scope of M37 in areas that would be destructive to land use planning.  Notes support of integrated claims process.

351

Chair Garrard

Relays there isn’t intent to expand.  Comments that the major issues of those testifying before the committee were transferability and compensation.  Believes SB 1037 was not successful because it denied benefits awarded by M37.

 

Rep. Greenlick

References the meeting held in Medford and discusses those arguing for transferability and the many more who argued for compensation.  Asserts they need to focus on compensation.

396

Chair Garrard

Discusses difficulty in acting on the compensation issue in the limited time remaining and notes suggestions to set compensation aside until the next session.  Asks Rep Nolan for direction in how to move forward in regards to the compensation issue.

TAPE 115, A

003

Rep. Nolan

Responds that she can’t answer yet and that the committee is still analyzing information from the public hearing.  Believes that compensation is not an isolated issue and needs to be looked at in context.  Notes the first 3 words of the ballot measure were “government shall compensate” and believes the committee should work to find a compensation mechanism.

018

Rep. Anderson

Responds to Rep. Greenlick’s comments on the Medford meeting.  Addresses concerns that M37 will open up rural lands to be overdeveloped.  Estimates impacts of claims and asserts many will be single family dwellings on large parcels of land. 

 

Chair Garrard

Asks the committee if it believes the intent of M37 was meant for subdivisions or residential, single family dwellings.

 

Rep. Greenlick

Believes M37 was about fairness.  Asserts that M37 aside, if people had the right to build a house on their land at one time, that right should be restored.  Highlights those properties who have received huge benefits from land use planning. 

085

Rep. Sumner

Asserts that while they do not want to expand the scope of M37, they also do not want to restrict the scope.  Discusses claimants who wish to use their property and are not asking for compensation, and notes intention to focus his thoughts in this direction.

090

Rep. P. Smith

Echoes concern that M37 was about fairness and notes there was a  companion bill of SB 100 (1973) that was never enacted.  Believes that compensation should be addressed at some time.

106

Rep. Anderson

Believes they should limit deliberations to what was in M37.

 

Rep. Ackerman

Outlines reasons why he believes compensation was not the main focus of M37 although he believes the issue should be addressed.  Asserts the compensation piece should be addressed in an interim committee and brings up the issue of how the compensation should be allocated once raised.

152

Rep. Nolan

Raises the issue of previous ballot measures which have demanded action from the legislature and submits this is a similar situation.

 

Rep. Ackerman

Reiterates Rep. Nolan’s comments and adds that M37 was overwhelmingly passed while a recent poll suggests a majority of Oregonians support land use. 

 

Rep. Anderson

Asks about damage to land use planning. 

 

Rep. Ackerman

Outlines possible protections and limits that would mitigate harmful effects.

187

Rep. Greenlick

Raises the issue of determining whether or not zoning within urban growth boundaries is a land use action.

 

Rep. Nolan

Discusses implications of M37 in the future.

 

Chair Garrard

Opens discussion of HB 3120 with amendments.

 

Rep. Greenlick

Suggests the committee look at the ballot title and explanatory statement of M37 (EXHIBIT G) to determine voter intent.

 

Rep. Ackerman

Notes multitude of issues and makes suggestions for determining which the committee will act on.

261

Chair Garrard

Asks staff to go through the text of M37 (EXHIBIT F).

288

Litke

Reads and explains Section 1 of M37.

 

Rep. Ackerman

Notes he will save his comment.

315

Rep. Anderson

Asks a question about the effective date.

 

Litke

Responds.

 

Rep. Anderson

Asks a follow-up question on M37 application in the future.

 

Rep. Greenlick

Comments on the possible future application.

331

Litke

Reads text of Section 2 of M37.

 

Chair Garrard

Notes Section 2 contains the question of whether an assessed valuation in necessary during the claims process.

 

Litke

Discusses questions raised in Section 3.

 

Rep. Greenlick

Makes comments about implications of the reduction of fair market value as read in Section 2.

 

Rep. Ackerman

Points out that on Page 2 of the -1 amendments (EXHIBIT D) adjustments are made for valuations based on current dollars and raises questions about this provision.  Notes this is a place where M37 has to be interpreted and filled in.  Adds that M37 also applies to real property or any interest therein and raises questions on its application, including  its effect on easements.

 

Litke

Relays previous testimony from a city who raised the concern of how to deal with easements.

TAPE 114, B

005

Litke

Relates changes in made to Section 3 in Page 2 of the -1 amendments (EXHIBIT D) as expanded to include other safety regulations which would be exempt from M37 claims.

023

Chair Garrard

Asks about possible M37 claims in mudslide areas.

 

Litke

Responds that there is uncertainty and comments on legislation in the past on hazard areas.

047

Chair Garrard

Notes this is an expansion of M37 and asks the committee if they feel they should remove things that will alter M37.

 

Rep. Greenlick

Comments that they shouldn’t have a problem restricting M37 if they expand it.

 

Chair Garrard

Asks if they are making it better.

 

Rep. Nolan

Asserts that clarifying the process and making it more fair should be their criteria.

 

Rep. Anderson

Asks if describing the process is expanding or clarifying M37.

 

Rep. Ackerman

Comments that most is clarification.  Notes in Section 3 (B) the terminology is “such as” not limiting them from adding to the list.

075

Chair Garrard

Concludes that by adding these things, they are clarifying and therefore should do it.

 

Rep. Ackerman

States that the text allows this.

 

Litke

Comments that there were additional amendments for protection areas in SB 1037 related to coastal and wetland areas.

 

Chair Garrard

Asks the committee if they want to address adding protection areas.

085

Rep. Anderson

Responds that he supports health and safety regulations but does not support specifying certain areas of protection.

 

Rep. Greenlick

Describes the attempt to balance placing some restriction on M37 claims while allowing some non M37 claims.  Urges caution in expanding language.

 

Rep. Anderson

Adds restricting language.

105

Litke

Explains M37 Section 3 (E) and reviews questions raised around the date of ownership and notes the changes made in the -1 amendments on Page 2, Section 1(e).

 

Rep. Greenlick

Disagrees with Litke’s interpretation

 

Rep. Anderson

Also disagrees.

 

Litke

Clarifies his interpretation and refers to section 3.

 

Rep. Greenlick

Interprets the language.

 

Litke

Describes differing dates in M37 for waivers and compensation.

145

Rep. Greenlick

Asserts that claims can be made on any action that was made after the earliest date the family has owned the property.

 

Chair Garrard

Asks Bob Rindy to help clarify the question.

156

Bob Rindy

Department of Land Conservation and Development (DLCD).  Reports that his understanding is that the intent was that compensation would be awarded based on the earliest ownership but the waiver would be entitled to the regulation when the current owner bought the property. 

177

Rep. Greenlick

Asserts that the language of M37 says if it doesn’t relate to any regulation that took place before the very earliest date the family owned it, it applies to any regulation that happened after the early date.

 

Rep. Nolan

References the compensation portion in Section 8 of M37 and outlines the difference between the date applied to waivers and compensation.

199

Rep. Greenlick

Continues discussion of Section 3 and their relation to 3(1).

 

Litke

Discusses Section 5 on Page 3 of  HB 3120-1 and outlines (A) – (C). 

 

Rep. Ackerman

Asks if they are prior claims or prospective claims.

 

Litke

Responds that it does not say but is assumed in the future. 

258

Rep. Greenlick

Asks how this relates to (B).

 

Litke

Agrees that they seem to be in conflict.

244

Chair Garrard

Notes they are identifying areas of clarification.

 

Rep. P. Smith

Suggests that compensation be dealt with separately.

 

Rep. Greenlick

Explains the difference between (b) and (B).

255

Sam Litke

Discusses Section 1(C)(8) on transfers.

 

Rep. Greenlick

Asks if Section 1(C)(6) clarifies the question of more than one application.

 

Chair Garrard

Agrees.

 

Rep. Greenlick

Continues point.

 

Chair Garrard

Adds that it will also designate the entity involved in the land use decision the entity that will owe compensation.

 

Rep. Ackerman

Points out that more than one entity could’ve enacted a regulation.

 

Chair Garrard

Agrees.

 

Rep. Greenlick

Comments on this issue related to county and state authority.

 

Chair Garrard

Describes this as the separation of powers question.

 

Rep. Ackerman

Asks for elaboration.

 

Chair Garrard

Discusses a government’s ability to waive regulations.

284

Rep. Nolan

Adds a comment on counties waiving state statutes.  Continues, raising questions around the cumulative effect of several regulations and determining responsibility among multiple agencies for both compensation and waivers.

 

Chair Garrard

Suggests using the regulation enacted first.

 

Rep. Nolan

Comments that the issue deserves clarification.

 

Rep. Greenlick

Points to section 1(C)(6) and notes that claimants must file multiple claims.

 

Chair Garrard

Agrees this is a confusing point.

 

Rep. Nolan

Gives a scenario in which one would need to file claims to multiple agencies.

 

Chair Garrard

Comments on state rule superseding county regulations.

 

Rep. Nolan

Infers from his scenario that the claim would go to the state.

 

Chair Garrard

Responds affirmatively.

 

Rep. Nolan

Points out that some local regulations were enacted without state mandate.

343

Chair Garrard

Gives an example of a situation which had 3 possible jurisdictions involved.

373

Litke

Discusses Section 1(C)(8), Page 4 dealing with the transferability of waivers, noting that the attorney general’s position was that waivers go with the property owner, not the land. 

 

Rep. Ackerman

Discusses the separation of powers issue and some confusion caused by the term “waiver”.

 

Litke

Notes the definition of “waive” is located on Page 8.

TAPE 115, B

005

Rep. Greenlick

Comments that Section 1(C)(8)  on Page 4 is an expansion of the scope of M37 and if they choose to include this, there should be offsetting contractions.

 

Rep. Anderson

Asks about compensation.

 

Rep. Greenlick

Discusses the balance of transferability and other provisions in SB 1037.

 

Rep. Anderson

Asks what provisions were offsetting allowing transferability.

 

Rep. Greenlick

Responds that there were protections for prime farmland and others.

030

Rep. Anderson

Discusses giving local governments an alternative to compensation.

 

Rep. Greenlick

Clarifies he was talking about the process of clarifying the measure and notes his reluctance to add provisions on one side without offsetting provisions to balance. 

052

Rep. Anderson

Asks if he thinks the courts are more capable of dealing with this issue.

 

Rep. Greenlick

Comments on making the decision on a political basis rather then through independent adjudication.

063

Rep. Ackerman

Disagrees and asserts that the ambiguities should be clarified by the legislature.  Outlines reasons for allowing transferability.

 

Chair Garrard

Adds that testimony heard indicates that transferability was assumed to be a part of M37. 

 

Rep. Greenlick

Responds that his constituents did not agree. 

 

Chair Garrard

Asks if M37 passed in his district.

 

Rep. Greenlick

Reports that it was narrowly passed.  Discusses effect of determining the transferability question in a political setting.

 

Chair Garrard

Comments on the 61% of voters who voted for M37 and the issue of transferability.

 

Rep. Ackerman

Interjects that the issue of transferability, among others, was not raised in the campaign.

093

Rep. Nolan

Submits that the testimony they have heard testimony from those who have a stake in M37 and not from disinterested voters.  Comments on the issue of fairness and the will of the voters.

 

Chair Garrard

Discusses what M37 is intended to do and the importance of transferability.

 

Rep. Greenlick

Comments on voter interpretation of M37.

 

Chair Garrard

Asks about this interpretation.

 

Rep. Greenlick

Raises the issue of subdivisions rather than single family dwellings.

 

Chair Garrard

Brings up the question of whether the intent of M37 was to allow for subdivisions or residences and asks the committee if that is a question that needs to be clarified.

134

Rep. P. Smith

Comments on the absence of the terms “transferability” and “subdivision”.

 

Rep. Greenlick

Clarifies his comments on voter intent.

 

Rep. Greenlick

Reiterates that the issue of transferability is more than simply clarifying the measure.

 

Chair Garrard

Asks if there is an ambiguity in this issue to begin with.

 

Rep. Greenlick

Responds that there is.

 

Chair Garrard

States that some don’t feel that there is ambiguity.

 

Rep. Greenlick

Responds that if there is no ambiguity than they can leave M37 as written.

158

Rep. Ackerman

Comments on prevailing thought in current real estate law and voter intention.  Asserts they have the authority to legislate on these issue.

 

Rep. Sumner

Discusses transferability rights and asserts the rights must transfer with the land.

187

Rep. Nolan

Contends that M37 fundamentally changes how rights are vested in real estate and elaborates.

216

Rep. P. Smith

Discusses expectations of purchasers at the time of purchase and how M37 does not change that.

 

Rep. Ackerman

Comments on ownership issues and the reasons for restrictions on the types of people that can make claims.

234

Litke

Describes Section 1(C)(9) (Page 4).

244

Litke

Discusses Section 1(C)(10) dealing with compensation.

 

Rep. Greenlick

Asks about a wordsmithing change.

 

Litke

Responds it was done in Legislative Counsel (LC).  Continues discussing (10).

163

Rep. Greenlick

References Page 5, Lines 15 – 17 and comments on transferability.

 

Chair Garrard

Notes it is “an” owner not “the” owner.

 

Rep. Greenlick

Asks if it would apply to any current owner.

 

Chair Garrard

States it would apply to any owner.

 

Rep. Greenlick

Gives an example of how this provision would work under his interpretation.

 

Chair Garrard

Agrees with Rep. Greenlick’s interpretation.

 

Rep. Greenlick

States it would imply non-transferability.

 

Chair Garrard

States it could.

 

Rep. Ackerman

Asks if there is another definition of owner.

 

Litke

Comments on the issue of compensation.

 

Rep. Greenlick

Remarks on the original words of M37.

 

Rep. Ackerman

Notes that “owner” is defined as “present owner” and gives his interpretation.

 

Chair Garrard

Asks where the discussed wording came from.

 

Litke

Responds from M37.

 

Rep. Greenlick

Clarifies they mean the changed language.

302

Litke

Responds it came from LC.

 

Chair Garrard

Suggests they look to see what the original terminology in M37 was.

 

Rep. Anderson

Reads “the” owner.

 

Rep. Greenlick

Comments on the rights that would be granted to “the” owner.

 

Rep. Anderson

Gives a different interpretation, asserting rights from further in the past would be granted.

 

Rep. Nolan

Adds if the owner still owns the land.

 

Rep. Anderson

States they could transfer the property to someone else as there was no restriction at the time of purchase.

 

Rep. Nolan

Gives the example of zoning as a restriction.

 

Rep. Anderson

Discusses rights still allowed even if zoning were changed.

 

Rep. Nolan

Agrees.

 

Chair Garrard

Points to the original definition of “owner” and notes it states the  present owner of the property, or any interest therein.

340

Litke

Comments on the movement and alteration of the definitions section.

 

Chair Garrard

Remarks on the debate spurred in the interpretation of M37. 

 

Litke

Points out Section 1(C)(11) on Page 6 of HB 3120-1 and explains the origin of this provision.

 

Rep. Anderson

Asks if he is referring to building codes.

 

Litke

Responds affirmatively and elaborates.

 

Rep. Nolan

Adds electric codes to the list.

 

Litke

Agrees and make suggestions.

400

Rep. Sumner

Asks if this also covers issues of buried utilities and house setbacks.

 

Litke

Responds affirmatively and further explains county concerns.

TAPE 116, A

005

Chair Garrard

Notes they have identified points to clarify and gives their intention to listen to proposed amendments on Monday June 6, 2005.

 

Rep. Anderson

Asks if the committee will hold another public hearing.

 

Chair Garrard

Responds they are not planning one at this time.

 

Rep. Anderson

Comments on invited testimony and asks when they will speak.

 

Chair Garrard

States when they have a piece of legislation to review.

027

Rep. Nolan

Expresses desire to have a public hearing on amendments.

 

Chair Garrard

Adjourns the meeting at 3:25 p.m.

 

 

EXHIBIT SUMMARY

 

  1. SB 863, written testimony, Don Schellenberg, 1 p
  2. SB 863, written testimony, pictures and , Dave Vanasche, 7 pp
  3. SB 863, pictures of collage, Dave Tonges, 2 pp
  4. HB 3120, -1 amendments, Staff, 60 pp
  5. HB 3120, written testimony, Nikki Whitty, 3 pp
  6. HB 3120, text of Ballot Measure 37 (2004), staff, 2 pp
  7. HB 3120, ballot title and explanatory statement of Ballot Measure 37 (2004), staff, 2 pp