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

MEASURING LOSS UNDER MEASURE 37 567
in the light of state policy. The amount of payment due must be weighed
against the alternative of waiving the regulation. While the discussion
of the valuation methodology is hardly academic, most local governments
unfortunately have treated it as such.
Local governments have reacted to Measure 37 claims paralyzed like a
deer caught in the headlights: usually apply a planning policy to waive
land use regulations in favor of any potentially eligible Measure 37 claimant.
Indeed, the term “planning policy” in this context is at best misleading,
and at worst oxymoronic. Local governments have neither adopted
strategic approaches to Measure 37 to limit the detrimental effects of
waiver, nor considered whether paying all or some of the eligible claims
may actually be in the public interest. 22 Instead, cowed by inaccurate,
hyperbolic estimations of the cost of land use regulations, having a short
time to decide claims, and facing possible judgments and attorney fees,
local governments have largely abrogated any responsibility for protecting
the Oregon land use program from the effects of Measure 37 claims.
Few governing bodies engage in a rigorous review process of the
asserted loss, with a number routinely approving claims on the mere
possibility that there has been some loss. 23 While there is no uniform
system for assessing Measure 37 claims—the length and content of the
staff reports, as well as the required evidential basis, varies quite dramatically
among state, metropolitan, and local governments—the
following paragraph is indicative of the superficial assessment that the
state engages in when quantifying losses:
The claim asserts that the existing state land use regulations enforced by the Commission
or the department have the effect of reducing fair market value of the subject property
by $115,000. However, without additional relevant evidence demonstrating that the
land use regulation[s] . . . reduce[d] the fair market value of the subject property, a specific
amount of compensation cannot be determined. In order to determine a specific
amount of compensation due for this claim, it would also be necessary to verify whether
or the extent to which the claimants’ desired use of the property was allowed under the
standards in effect when they acquired the property. Nevertheless, based on the record
for this claim, the department has determined that the laws on which the claim is based
have reduced the fair market value of the subject property to some extent. 24
22. Generally an eligible applicant is one who can demonstrate that: (1) the applicant
or a family member owned the property prior to the enactment of the land use regulation,
(2) there is evidence that the land use regulation challenged has been enacted or
enforced, (3) the regulation in question has “restricted the use” of the property, and
(4) the fair market value of the property has been reduced as a result of the enactment
or enforcement of the regulation. Id. § 197.352.
23. This is despite a number of local governments superficially requiring an assessed
demand for compensation at a specific dollar amount.
24. In re Nice, Claim No. M124351, before the Or. Dep’t of Land Conservation &
Dev., 6 (Sept. 11, 2006) (emphasis added), available at http://www.oregon.gov/LCD/
MEASURE37/docs/finals2006/M124531_Nice_Lane.pdf.
ABA-TUL-07-0701-Sullivan.indd 567
9/18/07 10:43:37 AM