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

616 THE URBAN LAWYER VOL. 39, NO. 3 SUMMER 2007
regulation that restricts land and arguably lowers property values. Thus,
the method of calculation of payment becomes critical to any understanding
of Measure 37. We now turn to the methodology that is most
consistent with the Measure.
VI. Conclusion—The Measure 37 Methodology
The exemption method views only the land at issue and looks only at its
value with and without the regulation. This methodology fails to address
the effects of the regulations on other properties, and how those effects
influence the value of the subject property.
The Hascic and Wu method has much to offer conceptually, but is
expensive and difficult to apply. Moreover, it fails to deal with the complex
interrelationships among regulations for economic analysis
purposes.
The Plantinga/Jaeger method appears to come closest to the needs of
practicality and relative ease of administration. It has the faults that may
be seen as common for any non-economist, in that it does not deal with
the non-economic actor who may deal with land for reasons besides
economics. It assumes a relatively perfect market. It assumes the CPI is
an appropriate multiplier. Finally, it attempts to deal with what is not
known and may not be knowable—the effect of the land use regulation,
in isolation, on the value of land. Even with these criticisms, however,
the Plantinga/Jaeger analysis comes closest to the text and context of
Measure 37 in terms of an easily applied methodology.
The Sercombe method attempts to reconcile the words of the Measure,
to distinguish a cause of action as of the time of the bringing of the
claim and the time when any cause of action that might otherwise
accrue, i.e., at the time of the passage of the restrictive regulation. It
then compounds the difference in value at the time of the passage of the
restriction with an interest rate over the period of the imposition of the
regulation. That compounding has the same difficulty as it does under
the Plantinga/Jaeger method, i.e., it imposes a value on time, which may
not be measurable nor reflect real world values. Unlike the Sercombe
approach, it appears more consistent with the Measure to have the claim
accrue when filed.
Thus, a methodology that looks to the date of the claim as the starting
point, includes the total impact of the land use regulation, both positive
and negative, and uses a rate of interest starting with the date of the
claim, might be a better method of showing “loss” under Measure 37.
Just as a statute must be interpreted in its text and context, so also must
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