GOLD BEACH Without yet knowing who, what, where, when or how Measure 7 will apply, the Curry County commissioners approved an emergency ordinance establishing a claims procedure Wednesday.
The why part was easier. On Nov. 7, Oregon voters overwhelmingly approved the measure to allow property owners to claim compensation for losses caused by government regulations.
The measure was scheduled to take effect Thursday, and Curry County Counsel Jerry Herbage advised the commissioners they would need some sort of claims procedure in place in case someone came in and filed a claim on a napkin.
He said the ordinance would probably change many times. He designed in severability so that if one part of the ordinance is dropped or changed, the rest remains in force.
At the time of the meeting Wednesday morning, it was not yet known if a judge in Marion County would grant a preliminary injunction to keep the measure from going into effect on what Herbage reminded everyone would be Pearl Harbor Day.
Judge Paul Lipscomb granted an injunction Wednesday on certifying the voters approval of Measure 7.
When Herbage heard about the court decision, he said, The good news is that the law wont go into effect Dec. 7.
An opinion from the state attorney general was supposed to answer some of the questions about Measure 7, but has not yet been issued.
Curry County Planning Director Chuck Nordstrom, who did much of the work on the ordinance, said some feel that claims could be filed concerning regulations that have nothing to do with land use.
Herbage said, This measure is very ambiguous. There has been a lot of debate about how far it goes.
Some feel it applies to everything under the sun, he said, while others interpret it more narrowly.
One of the biggest controversies about the measure is whether or not governments have the right to waive laws and regulations instead of paying compensation for enforcing them.
Herbage said Oregonians in Action maintain it is implicit in the measure that governments can waive regulations.
The Oregon Department of Land Conservation and Development does not agree that state land use laws can be waived.
Herbage said he and Nordstrom have read 24 ordinances prepared by other governments for claims procedures, and they all have provisions for waivers.
Jurisdictions dont have unlimited funds, he said, Weve got to have something. We dont have an unlimited pocketbook.
We are at a disadvantage, said Herbage, who designed a waiver into Curry Countys ordinance, We have no attorney generals opinion. We have no benefit of previous court cases.
Commissioner-elect Lucie La Bont said Oregon law prohibits the legislature from issuing mandates without funding them.
She said if state regulations cause claims to be filed against Curry County, Can we pass it up to the state?
We will be looking at all angles, said Herbage. He said county counsels feel the state could have some obligations when counties enforce state laws.
Nordstrom said the state may have to pay claims too, and like counties, it doesnt have the money.
Gloria Rodgers said special districts are also concerned. She said that under the measure, even fire marshals may have no authority to enforce fire regulations.
Nordstrom said because the measure is based on the word regulation, it goes beyond anything even the U.S. Supreme Court might have encountered.
He said some attorneys think that the only way the state could regulate property under Measure 7 would be to purchase it.
After Herbage read the nine-page ordinance, Nordstrom read three letters into the record.
The first was from Dave Perry of the Department of Land Conservation and Development. Perry said the measure poses an unfortunate quandary for governments statewide.
He said the measure does not repeal state laws and regulations or authorize counties and cities to waive them.
Perry said the attorney general has directed state agencies to continue to enforce state planning goals and rules. He expected a further opinion from the attorney general within days.
The second letter was from Robert Liberty, executive director of 1,000 Friends of Oregon. He was against waiver provisions, even for state laws.
Liberty said state laws and rules were not on the November ballot, and that the county cant override state laws and rules to avoid compensation claims. Liberty said it might be possible to draft a legal variance mechanism for local regulations, but the county cant waive state regulations.
Nordstroms third submission was from the south coast representative from 1,000 Friends. It listed three pages of regulations that people might file claims for under Measure 7.
Among the regulations that could cause claims were urban growth boundaries, parking regulations, restrictions on heavy trucks on streets, logging regulations, restrictions on solid waste disposal, smoking bans, and health regulations in restaurants.
Commissioner Lloyd Olds said, We have to understand we need a stopgap ordinance right now, in case someone files tomorrow. He said the waiver issue could be decided later.
Herbage said, Its not static. We need to have a stopgap measure. It provides a mechanism to get things going.
La Bont said, All were doing is administering state regulations. Were not liable, they are. She said the county may not only be able to pass on the compensation claims, but charge for county staff time involved in processing the claims.
Henry Lustig asked if the commissioners were designing the ordinance to protect the county from expense or to punish applicants filing claims.
Herbage said it would protect the county in some ways, but will also give the applicants a road map to follow.
That road map turned out to be similar to the ordinance passed by the Brookings City Council the night before.
A major difference, however, was the number of appraisals each ordinance required of claims applicants.
Brookings requires three appraisals for claims of more than $10,000. The countys original draft asked for only one appraisal, but also retained the countys right to do its own.
Commissioner Cheryl Thorp asked that the ordinance require applicants to submit two appraisals for claims of more than $10,000.
Olds thought state law said governments cant require two appraisals. Herbage said that might apply to automobile appraisals, but not in a case like this.
The commissioners sought advice from John Bryson, an appraiser in the audience. He was also not familiar with the law Olds was talking about.
Bryson said the standards in the countys ordinance require a massive appraisal, including appraisals on surrounding properties. The appraisal fees will be rather stiff, he said.
Nordstrom said, The claims are high too.
Bryson said three of the four private appraisers in the county work in his office, so requiring two appraisals would mean the county would have to go to an appraiser in another county to do its own appraisal. Rodgers suggested using the Curry County Assessors Office.
La Bont suggested requiring one appraisal from the applicant and one from the county. If there was a large discrepancy between the two, another appraisal could be required of the applicant.
Herbage said, The reality here is that in the current budget, the county has zero dollars allotted to this. The county wont have lots of money lying around in the future. This will have to be amended.
Bryson also said that any appraisal must be of a specific date. Nordstrom said, Thats a problem with the whole measure, whether its retroactive or not, and how far back. Its unknown territory.
Bryson said, An appraisal cant be made without a specific date.
Nordstrom said, We will have to set a date, but we dont know how far retroactively. It will depend on the person filing.
Some say the legislature may have to revisit tax laws if someone claims property was worth much more than it was taxed for.
Besides the appraisal, applicants will also have to pay processing fees for claims. Nordstrom said fees proposed by other governments range from $250 to $3,500.
He said the staff time being used in the ordinance meeting added up to about $500 an hour. It wont be a cheap process to handle the paper.