County to confront Measure 37 test.

Byline: Joe Harwood The Register-Guard

When voters passed Oregon's property compensation law in November, many landowners frustrated by the state's long-standing land use restriction system hoped relief was on the way.

But the succinct text of Measure 37 - coming in at just under 1,000 words - has created more questions than answers for the many state and local officials trying to implement the new law.

With no legal precedent and no clarification from the Legislature, jurisdictions statewide are taking different approaches to enforcing the measure.

Lane County's interpretation of Measure 37 will be put to the test next week when the Board of Commissioners will consider claims filed by two Creswell-area landowners. They're the first claims to reach an elected body in the county.

And if commissioners vote to accept the recommendations of staff, at least one of those claimants has vowed to sue. In both cases, the staff favors rejecting the claims and is suggesting alternatives that neither of the claimants likes.

Measure 37 requires governments to pay property owners if their land values have been diminished by zoning and other regulations - or waive enforcement of the restrictive rules. Governments have about six months to respond to such claims.

The measure grants those benefits only if a property is held by the same owner who owned it at the time the particular regulation was imposed.

Kenney and Marta Gee, who own 56 acres just outside Creswell's urban growth boundary, were the first in Lane County to file for compensation or a waiver of land use regulations.

Kenney Gee and his brothers bought the parcel, south of Howe Lane next to Highway 99, in 1973 before the county adopted its comprehensive land use plan and zoned the property for exclusive farm use - a designation that prohibits turning the parcel into a housing subdivision or otherwise extensively developing it.

Prior to the adoption of the comprehensive plan, Gee's property carried no zoning classification. He later bought out the rest of his family's interest in the land.

In filing the claim, Gee estimates that the zoning restriction barring most development has resulted in a loss of value ranging from $408,977 to $7 million.

But Gee said he isn't interested in the money - and the county lacks funds to pay him. Instead, he is seeking a rezone of the property from farm use to rural residential, with a 2-acre minimum lot size.

Gee said he wants to create four or five 2-acre home sites along Highway 99 and some 5- to 10-acre lots elsewhere on the land, leaving him and his wife about 15 acres for the two manufactured homes already on the parcel.

The residential zoning with a 2-acre minimum lot "is the most appropriate zone change because that is the zoning of my closest neighbor across the road," Gee said.

Although county officials agree that the claim has validity, they say ambiguities in the text of Measure 37 are prompting them to take a different tack.

Kent Howe, the county's planning director, said it's unclear whether land division requests fall into the land use regulation categories that can be waived under Measure 37. A staff report on the claim doesn't address Gee's request for the rural residential zoning.

"We don't believe land-division regulations are a land use," Howe said. That statement seems at odds with the text of Measure 37, which defines a "land use regulation" as including all "land division ordinances." But Howe said he regards land division as more of a "siting development concern" than a land use issue.

Because the county considers land division issues as not covered by Measure 37, Gee's request for the rural residential zone that would allow him to partition the parcel is moot, said Stephen Vorhes, an attorney for the county.

Officials with Oregonians in Action, the property rights group that pushed the measure, did not return calls to The Register-Guard seeking comment this week.

Howe said the county is waiting for either the Legislature or the courts to rule on whether dividing land is a land use regulation covered by Measure 37.

"Right now, the county's position, and that of many other jurisdictions, is that land division is not (a) land use" regulation, Howe said.

Another issue commissioners will have to wrestle with is whether an owner who wins a waiver of the regulations can then sell the property without developing it himself, and pass along to the new owner the newly won development rights. Oregon's attorney general in March weighed in with an opinion stating that if a property owner secures an exemption from regulations, he cannot transfer the rule waiver to a new owner.

Backers of Measure 37 have called that opinion "beyond absurd."

Howe said that under that opinion, Gee would not be able to sell residential lots even if the county allowed him to subdivide his parcel.

"If, and it's a big if, we were to say a (land) division is a (land) use and authorize 2-acre lots, the new owners would have to apply to build a house in an exclusive farm use zone," Howe said. "They wouldn't qualify." That's because the underlying zoning of the land would not have been changed.

Under the county's legal theory, those new owners wouldn't be able to develop the lots unless they could meet the state's farm income standard of generating gross revenue of at least $80,000 annually - a virtually impossible feat for crops on two acres or even 10 acres.

Rather than allow Gee the rural residential classification he wants, county officials are recommending that commissioners waive the restriction of allowing only one home per parcel on farm or forest land.

Gee said that's unacceptable and not in line with the law that voters passed six months ago.

"I already have two homes on this property," Gee said. "They are trying to give me something I already have."

Gee said the county is treating his claim as if it were a matter reviewable by state authorities such as the Department of Land Conservation and Development and the state Land Use Board of Appeals, both of which oversee the state's land use goals.

Gee said Section 9 of the measure makes clear that cities or counties have the power to waive state regulations governing land use. Yet the measure's supporters have warned anyone winning a waiver at the local level to seek clearance from the state also prior to building, just in case interpretations are different.

The new law gives those filing claims the right to sue in Circuit Court if, after 180 days, the land use regulations in question are still in effect. Gee said he's not thrilled about having to hire an attorney and sue, but that is "where this thing is headed."

Measure 37 would require the county to pay Gee's legal costs if he wins in court.

"I've tried to convince the county that court should be the last venue they want cases going to," he said.

Gee might not be the only unsatisfied person seeking judicial relief.

Ron and Patricia Tendick, who live on 53 acres off Enterprise Road east of Creswell, filed a claim with the county in December to partition a 30-acre lot off their forest-zoned parcel for a home site for their youngest son.

The Tendicks bought the land in 1963 - almost two decades before the county adopted zoning classifications. Under the current code, the land is designated as impacted forest land, which allows a home, but only on a lot of 80 acres or larger.

County officials are recommending that the Tendicks' claim be handled in the same manner as Gee's - by waiving the rule that bars a second home on the property.

Howe said allowing a division of the land wouldn't meet the attorney general's interpretation of the measure, which appears to give only the current owner the ability to use a waiver.

"If we allow the Tendicks the waiver to divide the property below the 80-acre minimum in a forest zone, once they partition it, there will be a new owner," Howe said. "The new owner would not be able to use the waiver" in order to build a house, he said.

Ron Tendick said he wants his son to hold title to the property rather than go the route the county is proposing.

"The way I understand Measure 37, the whole purpose has to do with loss of value," Tendick said. "A loss of value occurs when you can't divide your property."

He said the chances of resolving the claim without suing "aren't looking good."

Lawmakers this session have submitted bills to clarify or change Measure 37. However, no major bills have emerged from committees, and there is no consensus on how legislators will address the confusing topic.

The county will modify its interpretations to fit either a court ruling or a new law, Howe said.

The county is facing three other claims, two of which it probably will deny, with the remaining claim probably headed to commissioners next month.

Springfield is the only other city in Lane County that has received claims. The two claims in Springfield, filed by the Shevchynski family, relate to a right of way spat and a desire to set up a recycling facility - which the city has denied - off Marcola Road.

MEASURE 37 HEARING

What: Lane County Board of Commissioners will hold a public hearing to act on two Measure 37 claims

When: Wednesday

1:30 p.m.

Where: Harris Hall, 125 E. Eighth Ave. in Eugene