Prineville files M37 claim

Move against Deschutes County may mark first of its kind

By Rachael Scarborough King / The Bulletin
Published: December 10. 2006 5:00AM PST

The city of Prineville has filed a Measure 37 claim in Deschutes County regarding a plot of land at the western terminus of the city of Prineville Railway. The move may be the first time that one municipal government has filed a claim against another under the measure.

The action has led to some debate over whether a public landowner can demand the waiver of land use regulations or financial compensation under Measure 37.

Prineville has owned the 10-acre property about three miles north of Redmond since 1917, said Robb Corbett, Prineville city manager. It has been zoned for exclusive farm use since the 1970s, but the city wants to use it to expand the railway’s industrial operations.

“We could either site a potential rail user at the location or we could expand storage capacity,” Corbett said. “We have several customers that rely on services that can only be provided in industrially zoned lands.”

In its Measure 37 claim, the city has set the loss of development value to the land at around $1.6 million. But Corbett said the city’s goal is to be able to use the land for commercial and industrial purposes.

“We have been working with Deschutes County and Redmond for over a year and discussing what would be the best way to proceed, and given our options it looked to us like filing this claim would be the best opportunity to move forward,” he said.

The timing of the claim was also prompted by the two-year anniversary of the measure’s passage, Corbett said. According to the statute, property owners filing a claim more than two years after it went into effect have to clear additional bureaucratic hurdles, a rule that has prompted a flurry of claims in Deschutes County and at the state level in recent weeks.

Michael Morrissey, manager of the state Department of Land Conservation and Development’s Measure 37 division, said his office saw about 3,600 claims filed in the last week of November and first few days of December. Measure 37 went into effect Dec. 2, 2004.

“We got as many in one week as we got for the whole prior two years, roughly speaking,” Morrissey said.

Morrissey questioned whether Prineville has the legal right to file a Measure 37 claim, pointing to the use of the word “private” in the first sentence of the measure, which reads: “If a public entity enacts or enforces a new land use regulation … that restricts the use of private real property or any interest therein and has the effect of reducing the fair market value of the property, or any interest therein, then the owner of the property shall be paid just compensation.”

“To the best of my knowledge, Measure 37 doesn’t provide for a public entity to file a claim, period,” Morrissey said. “I believe Measure 37 was only written for private landowners, not public landowners.”

But Ross Day of Oregonians in Action, the property rights group that wrote Measure 37, said he thinks the measure allows Prineville to file a claim.

“The only reason why it’s odd is because apparently the city of Prineville owns property that’s not within the city of Prineville’s jurisdiction,” Day said. “That doesn’t seem to be a wise use of public resources to own property that’s not even in your jurisdiction, so that’s why it would seem strange – there’s nothing that says they can’t.”

The first step in reviewing a Measure 37 claim is determining its legal validity, said Tom Anderson, director of Deschutes County’s Community Development Department.

Anderson said that the property in question is just north of the Redmond Urban Reserve Area and is mostly surrounded by farmland.

“While I understand the city of Prineville’s desire to develop that property and maximize the economic return on that land and the railway itself, we also have an obligation to the surrounding property owners who do have farms and have the expectation that farmland will remain farmland,” he said.

Corbett said that the question of the legality of the claim did not come up until after it had been filed. He added that the city’s attorney in the matter is satisfied that Prineville has a right to file the claim.

The logjam of claims at both the state and county level has created another concern for government officials – the ability of the agencies involved to process claims within 180 days. The text of the measure says that if land use regulations are still in place 180 days after a claim is filed, the property owner can sue the government in circuit court for compensation of development rights.

Deschutes County has received 47 claims in the month of November out of 170 filed total, Anderson said, accounting for its busiest month ever.

“We’ll have to do things a little bit differently than we have been – we may have to review some sooner in order to spread out that volume over the 180 days,” he said. “We’re also looking at some help, either contract help or additional people within the county to deal with that volume.”

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