Through a Glass Darkly: Measuring Loss Under ... - Land Use Law

574 THE URBAN LAWYER VOL. 39, NO. 3 SUMMER 2007
This author has already suggested that planners in Oregon may
attempt to use the exceptions listed within the measure creatively, and
has stressed that any such creativity would likely be shown substantial
deference by the courts, due to separation of powers considerations. 46
There are undoubtedly amendments and land use regulations, however,
that cannot be squeezed within the exceptions listed. Again the issue of
valuation is of paramount importance: establishing an accurate, practicable
method of quantifying loss would at least allow local government
planners to produce cost estimates for future planning regulations,
and force local governments to think about how to deal with these
costs. For instance, if a regulation fell outside one of the statutory
exceptions, then the planner could establish the total cost, assuming all
current landowners are likely to make Measure 37 claims that the local
government would have to bear to ensure the regulation was fully
potent. From this quantification it would again be possible to perform
a cost-benefit analysis, factoring in the added costs of the Measure 37
claims, to determine whether the proposed regulation should be enacted
or enforced.
Finally, establishing a comprehensive and comprehendible valuation
methodology is necessary to ensure uniformity. Uniformity is important
for two reasons: first, it ensures the fair and equal application of the
Measure 37 procedure between claimants, and second, it creates consistency
and predictability.
Despite the lack of a dedicated centralized database of Measure 37
claims, 47 it is apparent that valuation methodologies are inconsistently
employed. 48 While some local governments must be commended for
taking a more proactive stance by challenging the presumption that land
site acquisition through purchase approach in dealing with natural resources in the Portland
Metropolitan area. Whether that approach is more successful is yet to be determined.
In addition, the use of the Endangered Species Act and the various federal acts
relating to air and water quality provide a fairly comprehensive backup for the regulatory
approach in any event. Id. (citing Endangered Species Act of 1973, 16 U.S.C.
§ 1531-44 (2000)).
46. See Sullivan, supra note 4, at 157.
47. See Portland State University Institute of Portland Metropolitan Studies, Measure
37: Database Development and Analysis Project, http://www.pdx.edu/ims/m37database.html
(last visited May 22, 2007). This database, however, depends on self- or
third-party reporting and is neither especially detailed nor comprehensive.
48. The disparities have been noted by the main proponents of Measure 37. See
Oregonians in Action, Ballot Measure 37 “Implementing” Ordinances, http://measure37.com/measure%2037/local_ordinances.htm
(last visited May 22, 2007) (classifying
local governments into categories: “Good” (i.e., very little scrutiny), “Bad” (i.e.,
those that demand some evidence, and assess claims to a certain degree) and “Multnomah
County” (which, Oregonians in Action suggests, is “clearly . . . intend[ing] to
deprive its citizens of the rights secured by Measure 37”)).
ABA-TUL-07-0701-Sullivan.indd 574
9/18/07 10:43:38 AM