Mediation may take uncertainty out of Measure 37
J. Richard Forester
Mediation ought to be a mandatory requirement before any land-use rule is waived or any compensation awarded under Ballot Measure 37.
This is similar to a mandatory mediation requirement where mediation is required before a court will undertake to settle a custody dispute involving children. This requirement ought to work in a simple way. Before any claimant will be allowed attorney fees under Measure 37, which authorizes attorney fees, the claimant ought to be required to have a serious conversation with the local government and the affected neighbors.
The policy rationale for requiring mediation is the same as in custody cases: the long-term consequences. Having decided more than 600 land-use cases and mediated or facilitated approximately 60 land-use and related public policy/municipal law disputes, I see way too many cases where the parties ought to have talked instead of waging all-or-nothing combat.
The brave new world of Ballot Measure 37 creates an unusual opportunity for mediation because it significantly changes the paradigm of land-use enforcement and changes the roles and expectations of parties.
The measure allows the government -- which enforces the "offending" land-use rule -- to modify, remove or not apply the land-use regulations, or to permit the owner a use which was permitted when the property was acquired by the owner.
This is a new and a revolutionary concept in land use, where the whole emphasis since Senate Bill 100 has been to enforce these rules in every aspect of their minutia. This new ability by the government to waive the rules provides a new ingredient: discretion. Discretion is the mother's milk of compromise and settlement. What has been unthinkable is now required.
The second new element involves the new claimants. These new claimants will be the new kids on the block when it comes to land-use and development issues. We know that circumstances will vary both with location of the property and genealogy of the applicants' claims.
Attitude and influences, as well demands and opportunities will shift as we move from highly urban to suburban to exurban to farm to forest and to the open range. Demands may vary from simple desire to build a home on a lot to a desire for speculative gain on a well-situated piece of property. Within those parameters there should be plenty of room to compromise.
Finally, the measure itself creates several gray areas, which will come into focus only with either litigation or legislative clarification. Key areas of gray come from exceptions to the measure written into it.
For example the measure does not apply if a proposed land use would create a nuisance under common law. The definitive approach to land-use nuisances will continue to expand as uneven application of regulations, which the measure demands, create disparate impacts on the neighbors.
There is also a public health and safety exception. Regulations relating to health and safety cannot be waived. In our litigation society the notions of safety and liability are ever expanding, not contracting fields. Want to sue a fast-food restaurant for making you fat?
A key exception involves determining what was permitted when the chain of title for the measure's eligibility started. Each claim for value starts with a date in the past when the owner or a defined family member has acquired title.
This makes relevant what exactly was permitted on the date that a claim originates.
For example, in 1924 Portland adopted its zoning code. Oregon land-use law in its present form starts in 1973 (Senate Bill 100). The issue in every case will be whether what the owner now wants to build was permitted outright or were there some conditions that needed to be met.
For example, were there roads or sewers or water available? Could you really have built a subdivision where there were no roads or water? If you could not, what is the monetary damage to the owner, if the subdivision is now prohibited?
To take a new example, is the farmer in Yamhill County entitled to compensation if the property was always a farm? If it was always a farm, and has to stay a farm under the current regulations, what is the diminution of value to the owner? Is the loss of value the same as loss of speculative opportunity? Because if there's no diminution of value, then the rules don't have to be waived.
Appellate courts have provided strong support for mandatory mediation clauses making provisions barring recovery of attorney fees by a prevailing party that refuses to mediate prior to litigation.
One of the hammers of Ballot Measure 37 is that a local government risks attorney fees each time it contests an issue. So why not make recovery of attorney fees in Ballot Measure 37 claims conditional on prior mediation of a claim? At worst, the outcome of an initial mediation would be akin to a prehearing conference, confirming the issues and developing timelines.
At best, all of the issues could get resolved to the satisfaction of the parties involved. A second-best result would reach agreement on some issues, while a (shorter) hearing would still be needed on the outstanding ones.
Alberta Municipal Affairs operates a "Municipal Dispute Resolution Initiative" which helps municipalities resolve a wide range of conflicts (land use, cost sharing, regional services, annexation). Oregon used to have a similar program until last legislative session.
Oregon Consensus Institute located at Portland State University is trying to restore that program's fuller funding in Senate Bill 247. Utah has an ombudsman for taking claims with a mediation option. Substitute Ballot Measure 37 claims for constitutional taking and you have a beginning of a program to deal with Ballot Measure 37.
While a programmatic approach would be very helpful, the beauty of creating a mediation requirement before one can claim attorney's fees is that it does not require a program or funding. Legitimate Ballot Measure 37 claims should all have enough inherent value, so that mediation ought to be a supportable burden to the parties.
If we approach Ballot Measure 37 claims as problems to be solved and make an effort to achieve some reasonable consequences for everyone -- then negotiated settlements, with assistance of mediation, should be Oregon's approach of choice.
