The full impact of Measure 37 has become apparent only recently as counties tally the vast acreage that is subject to the more than 6,000 claims filed so far.

Byline: GUEST VIEWPOINT By Eben Fodor For The Register-Guard

The full impact of Measure 37 has become apparent only recently as counties tally the vast acreage that is subject to the more than 6,000 claims filed so far.

Measure 37 is based on the idea that landowners should not be obliged to bear the costs of government land use regulations enacted after they purchased their property. So far, most of the news has been about the conflicts that Measure 37 claims are causing with neighbors and the loss of farm and forest land across the state.

But who should pay the enormous costs of providing public facilities and services to more than 500,000 acres of sprawling Measure 37 claims, most of which are located outside urban growth boundaries? In rural Lane County alone there are 34,000 acres of land subject to Measure 37 claims. That's almost as much land area as lies within the combined city limits of Eugene and Springfield (36,000 acres).

Because a Measure 37 claim typically results in a waiver of local land use regulations, it operates outside of an Oregon comprehensive planning process that governs the funding and construction of public facilities such as roads, sewers, water systems, parks and stormwater systems required by urban development. Essentially, Measure 37 claims are creating new demands on public facilities that are not part of any planning process, any capital facilities plan, or any funding system or tax base.

The costs to serve all this unplanned development will be many billions of dollars. The bill ultimately will fall on taxpayers, unless some other funding mechanism can be established.

A straightforward way to address this inequity is to require that Measure 37 claimants pay the full cost for the additional public infrastructure their claim would require. The claimant should be required to submit a development plan showing the maximum development proposed for the property. This plan would be compared with the level of pre-Measure 37 development allowed, and the difference between the two would indicate the increase in demand for public facilities and services created by the claimant.

To protect taxpayers and mitigate these new costs, local governments could charge a `Measure 37 mitigation fee.' The fee would be based on fully recovering the incremental, systemwide costs associated with the increased development resulting from the Measure 37 waiver.

The mitigation fee would be similar to a development impact fee, but would be different from Oregon's System Development Charge in a number of important ways.

First, systems development charges can be used to recover only five categories of public facility investments: roads, water, sewer, parks and stormwater systems. There are many other types of public facilities - such as schools, libraries and police and fire stations - that will be needed to serve Measure 37 development. Second, many jurisdictions do not collect for all the types of systems development charges that are allowed.

And third, systems development charges typically recover only a fraction of the full cost associated with development. In jurisdictions with such charges, they would be waived for Measure 37 claims and replaced with the mitigation fee.

To implement this policy, Measure 37 claims would become fully vested only after all mitigation costs had been paid. Development would be allowed only when a claim is fully vested.

Ideally, the state would establish a set of `safe harbor' mitigation fees that could be adopted immediately by any jurisdiction. Cities and counties that wished to adjust the fees up or down to reflect local differences could do so.

Our state land use system conveys many broad benefits to Oregonians. It generally has enhanced land values and helps to protect the quality of life. Those who wish to circumvent the rules that the rest of us abide by can reasonably be asked to pay their own way. Measure 37 mitigation fees would help keep Oregon's counties from drowning in unfunded infrastructure costs.

Eben Fodor is a planning consultant and researcher based in Eugene. He has performed impact fee studies and fiscal and economic impact analyses of land use and development alternatives through his firm at FodorandAssociates.com.