Item B: Ordinance Concerning Goal 5 Natural Resources Study

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8. CaD a local government waive a land use regulation required by an administrative rule (such as the statewide planning goals) or statute? Probably not. Section (8) only authorizes "governing body responsible for enacting the land use regulation" to modify, remove, or not apply the regulation. Therefore, land use regulations enacted by more than one public entity (for example, farmland regulations) will likely need to be waived by both the county and the state. o The line between where a local government is implementing a required state administrative rule or law, or implementing it with some additional protections is not always clear; this will be an area of ambiguity. 9. Is a public hearing or notice required? No. Measure 37 does not require a public notice or hearing. The measure specifically provides that a decision made under Measure 37 is not a land use decision and therefore no notice to property owners is required, even if the "waiver" of land use regulations will reduce your property values. But, Measure 37 also does not prohibit state and local governments from holding public hearings or providing some sort of public notice. In fact, several local governments have adopted procedures to hold public hearings, at least on waivers (e.g., City of Eugene, Crook County). o Note: A local government's adoption of an ordinance implementing M37 is a land use decision and must comply with those procedural and substantive requirements (including notice). to. What if the government waives a land use regulation for my neighbor, the effect ofwhieb is to devalue the fair market value of my property? Is that covered under Measure 37? No. If your neighbor purchased her property before the enactment of a land use regulation governing the approval and siting of cell phone towers, and the local government waives that land use regulation, Measure 37 does not allow you to recover for the reduction in your property value. Ambiguities and Unanswered Questions >> Is continuity of ownership required? Unknown. Measure 37 is silent on this issue. However, if no continuity of ownership is required, it will greatly increase the impact of M~ure 37.3 For example, if Sally purchases 80 acres offorested property in Coos County in 1960, and sells it to Bob in 1976, can Sally repurchase the property in 2004 and file a claim (for compensation or waiver) under Measure 37 based on her original date of acquisition in 1960? >> How wiD compensation be calculated under Measure 37? Unknown. While the measure specifies that the fair market value of the property with the land use regulation should be measured as of the date the owner makes written demand for compensation, it does not define how the reduction in value should be measured. >> Is a "waiver" a personal right, or does it run with the land? Put differently, what is the effect of a transfer by the property owner to another person? As discussed earlier, this provision clearly limits the waiver to allow "the owner to use the property for a use pennitted at the time the owner acquired the property." The Attorney General has also concluded that land use waivers are 3 Note: Discussion about "re-purchasing" property is not simply a hypothetical exercise. Rather, past experience with the originallot-of-record statutes exposed the loophole of previous owners repurchasing property in order to receive authorization to build a dwelling. 1000 Fl"iends of Oregon .. 4.. !\Iar'ch 31, 2005 g~