Thursday, August 4, 2005
By RAELYNN RICARTE
News staff writer
Two Measure 37 claims filed by Hood River County property owners have sparked a legal challenge over the new law’s application in the National Scenic Area.
On Monday, the Columbia River Gorge Commission filed a lawsuit in Hood River Circuit Court asking for clarification on the issue. Central to that action is the Measure 37 claim filed on Jan. 4 by Paul D. Mansur and another claim submitted by Stephan Struck on Feb. 13 and then amended and resubmitted on April 6.
“The Commission believes Measure 37 does not apply to the Scenic Area land use regulations,” said Martha Bennett, the bistate entity’s executive director. “At the same time, we know there are people in Oregon who believe it should apply.”
One of those believers is Oregonians in Action, the property rights advocacy group that authored Measure 37. The new law passed by a 61 percent margin statewide in the November general election and went into effect on Dec. 2. Measure 37 requires government agencies to either compensate landowners for regulations that devalue their property or waive the “offending” restriction.
“We’ll look forward to having this issue clarified in court,” said Ross Day, OIA director of legal affairs.
Bennett said the Commission is also looking forward to having the matter addressed in court with OIA, Friends of the Columbia Gorge and the three Oregon counties where Measure 37 applies.
She said Hood River, Wasco and Multnomah counties have all agreed that a legal answer to the Scenic Area question would be helpful before they have to decide whether to approve or deny a Measure 37 claim.
Under the 180-day timeline of the new law, Hood River County will have to make a decision on Mansur’s claim by June 6, or he can take his case to court and seek to recoup attorney fees. Bennett is hopeful that a legal hearing over Measure 37’s validity in the Scenic Area will take place before that deadline.
She said the Commission has concluded that Measure 37 does not apply in the Scenic Area based on section (3)(C) of the new law. The Commission believes the Scenic Area is exempt from Measure 37 since claims do not apply “to the extent the land use regulation is required to comply with federal law.”
The Commission believes Measure 37 claims are then invalid in the Scenic Area since land use is regulated by the National Scenic Area Act, which became law in November of 1986.
“Part of the intent of Congress in passing the Act and requiring a single management plan is to create uniform rules across all six Gorge counties and in both states. Applying Measure 37 in the three Oregon counties would violate this Congressional intent. We are not ‘for or against’ Measure 37, we are trying to best carry out the purposes of federal and state law,” said Bennett.
However, Day said the Act does not require that a Gorge Commission be formed to administer Scenic Area guidelines — that is left up to the discretion of Oregon and Washington. And since the Commission is entirely funded by state dollars and set up through a bistate compact, he contends that it is a state agency.
That same opinion was registered in 2001 by the Oregon Legislative Counsel. Sen. Ted Ferrioli, R-John Day, sought out that ruling in his quest to ensure that the Commission’s following proper protocol in its decision-making processes. According to the legislative counsel, the Commission was overseeing federal law but was accountable for its actions to each state.
The Hood River County properties at the heart of the Measure 37 lawsuit are zoned for agricultural use within a General Management Area that is subject to federal development restrictions. Mansur has owned his Lois Drive property since September of 1978 and wants to divide the .059 acre parcel into two buildable lots. In lieu of having that right, he is asking for $120,000 in compensation.
Struck’s family has owned the 6.75 acres on Morton Road since 1895, and he acquired it in 1975. He wants to divide the riverfront property into three buildable lots, or be compensated for $1.5 million.