ATTORNEY GENERAL ISSUES MEASURE 7 OPINION

February 13, 2001 11:00 pm

SALEM The meaning and effect of Measure 7 was the subject of a long-awaited formal opinion released Tuesday by Oregon Attorney General Hardy Myers.

Gov. John Kitzhaber first asked Myers to study the measure and issue an opinion a few days after voters adopted it in November.

Measure 7 requires governments to compensate landowners for any reduction in the value of real property due to government regulations.

Officials in Curry County and city governments hadnt had time to study the 117-page opinion yet, but Curry County Counsel Jerry Herbage said he will be studying it over the next few days.

The three-page media release on the opinion left most city officials waiting until the movie comes out or the court provides a final ruling.

Brookings City Manager Leroy Blodgett said the city would wait for the courts final judgment.

If it takes 117 pages for the attorney general to answer half a dozen questions on the impact of Measure 7, I dont see how officials of small communities are going to know how to apply it to their activities, he said.

City Attorney John Trew said the attorney generals opinion is not binding.

The city will await some guidance from the court, Trew said.

Herbage also cautioned that an opinion, even from the attorney general, is just that.

Myers agreed. An attorney generals opinion is not a ruling, he said. It serves as legal interpretation in advance of or in lieu of a courts final judgment of the laws meaning.

This opinion seeks to provide guidance to state agencies and other governmental entities affected by Ballot Measure 7 in implementing the law.

Because of the ambiguities in Measure 7, some of the conclusions are not free from doubt, and some of these questions may ultimately be resolved in the courts.

Myers then listed his major conclusions.

He said the Oregon Department of Administrative Services has exclusive authority to prescribe forms and procedures for submitting and processing Measure 7 claims against the state.

He said Measure 7 applies to any regulation that restricts the use of private real property. Such regulations include any enforceable government enactment.

A significant number of state and local laws and regulations are covered, said the opinion, including some criminal laws.

Among the laws and regulations that may require compensation are those that limit the exclusive right of the owner to possess or dispose of property, such as certain provisions of landlord-tenant laws.

Compensation may also be required for regulations that dictate what activities can take place on private property, such as traditional zoning laws.

Compensation may be required where regulations limit the physical extent or conditions under which the property can be used.

Those include certain aspects of building codes, the Forest Practices Act, and food safety laws.

Compensation may be required for regulations that limit the benefit to the owner from the propertys use, such as rent control ordinances.

The opinion said Measure 7 does not require compensation for laws imposing taxes based on property value, or for general laws governing conduct that do not involve the use of real property.

In Myers opinion, Measure 7 is not retroactive in most cases. Governments must pay compensation only for regulations passed or enforced after Measure 7 takes effect.

The measure has so far been barred from taking effect by a temporary court order.

Owners are entitled to compensation only if the regulation was enacted or enforced after they acquired the property.

The opinion said Measure 7 in itself does not authorize state agencies to stop enforcing regulations.

Myers said a state agency may choose not to enforce a regulation only if the law does not make enforcement mandatory.

A state agency, however, may not have to enforce a regulation if doing so would force it to pay compensation in excess of its budget.

Governments dont owe compensation for traditional regulations against nuisances, including those that threaten public health, safety, morals or rights.

Included would be laws that prohibit using real property for prostitution.

Some local health and sanitation regulations would probably be included in the exception for nuisances, said Myers.

Governments may also not have to pay compensation for implementing requirements of federal laws.

Myers said, For example, many aspects of Oregons clean air laws are probably excepted from Measure 7s requirement to pay compensation.

As for farm use zoning, the opinion said, Landowners who acquired their property before 1975 are likely to have a right to compensation under Measure 7 for any reduction in fair market value that results from exclusive farm use zoning.

The opinion also said, Measure 7 does not affect aspects of the Beach Bill that protect the public right to recreational use of the beach.

Myers said the measure may require compensation where beach bill regulations are not necessary to protect the publics recreational use, such as restrictions on buried pipelines.

The opinion even touched on Oregons bottle bill. It said, Measure 7 may require compensation when dealers and distributors of carbonated beverages are required to set aside part of their private real property to make space for returnable empty containers.

The entire opinion is available online at www.doj.state.or. us.