[Grovenet] Fwd: ACTION ALERT: Call for Measure 37 Suspension &Hearings

Sat Dec 9 20:31:49 PST 2006

That's a good story. And it actually makes my point! 

You see, your example driver does have the right to drive his car wherever
he wants, even though it doesn't meet the local pollution standards. No law
prevents that. What that law says is that if he moves into the DEQ-monitored
area or DEQ expands to include where he lives, the state will check to see
if his vehicle is really being maintained so that it operates as delivered
by the manufacturer. It's like the police setting up radar surveillance on
the highway. Everyone is supposed to follow the speed limit regardless. The
fact that the radar system was added to actually check the speeds in a
certain area doesn't change the rules.

If your son has a car that meet all the manufacturer's recommendations for
normal performance and is of an age that falls within the DEQ rules, he has
a case. In every such case I've heard of someone brought a car that needed
major repairs but which still ran into this area and they don't have the
money or desire to do the maintenance required.  

If DEQs requirements were like California's in which they demand performance
that the original manufacturer didn't provide, he would have a case. That's
why California phased in the regulations over time and exempted automobiles
built before the laws were enacted. You can still register and drive a
1960's car on the California highways with no emissions control equipment on
it whatsoever. 

In the same way, Measure 37 protects those who purchased land before the
land use laws went into effect. Just like his right to operate a 1960's car
today, the owner should be able to do with the land what was legal when he
purchased it. 

But it only applies to those who bought the land with the rights that
included development that was subsequently banned. Those who bought the land
since then purchased it with only the rights to do what the land use laws
allow. They suffered no loss and have no right to do things with the land
that are not allowed under the land use laws. 

Now, I should point out that we're talking about two quite different things
here: personal property, a car, and real property, land. There's a reason
it's called "real property" or "real estate". That's not a catch-phrase, but
a very fundamental legal definition that goes back to the founding of our
country.  Land is the only "real" thing we can own; the only really durable
thing we can acquire. Historically, America has carefully protected a whole
"bundle or rights" owners have that comes with their land. The whole issue
of the right to own real estate and exercise that bundle rights is
fundamental to the law in our country. That's what really concerns me when
laws interfere with those rights. When it comes to a contest, expect any law
that improperly infringes those rights to be struck down eventually. Widow
Dorothy English (I had to look up her story after reading the earlier posts)
is just one of many attacking the land use laws in various ways and making
progress. One argument in the Legislature now is about whether it's legal to
prevent someone who owns the rights to develop a property not to sell it to
another. Now that would create a real mess, but there is an argument in
favor of it. Even though a current owner may have the right to build on his
land, he may not want to do so. But, under the current law, he cannot sell
that right with the property, so he has lost value since that right was
taken away by the state. 

Oregon has taken a huge step forward in land use planning and control, but
what they did leave a huge hole in the law that is now being addressed. I'd
hate to see the whole system knocked to bits eventually because "hard
liners" won't budge and accept the idea that the original laws formulated
decades ago might have some problems that must be addressed.  

Ron D'Eau Claire  

-----Original Message-----
From: grovenet-bounces at rdrop.com [mailto:grovenet-bounces at rdrop.com] On
Behalf Of David Morelli
Sent: Saturday, December 09, 2006 7:18 PM
To: Forest Grove local interests list
Subject: Re: [Grovenet] Fwd: ACTION ALERT: Call for Measure 37 Suspension
&Hearings

On Dec 9, 2006, at 10:59 AM, Ron D'Eau Claire wrote:

> Let me use a different analogy. A person owns a car. He/she is free
> to drive that car anywhere in the USA or even take it into many  
> other countries. Now a law is passed saying that particular car can  
> only be driven in, say, the state of Oregon. It cannot leave the  
> state. The owner complains. It's not a valid argument to say to the  
> owner "You hadn't driven the car outside of Oregon before, so you  
> haven't lost anything because of this law; we're just restricting  
> any 'expanded' use of the car".
>
> Ron D'Eau Claire

Thanks for the automobile analogy.

So, if someone lives in Tillamook and they moved to Forest Grove.   
They could license their car in Tillamook just fine.  But when they  
get here they find that we have DEQ and because it doesn't pass they  
cannot license or drive that car.  They could move back to Tillamook  
if they want and license the car there, but they cannot "expand" into  
Forest Grove.  Is that a real example of your analogy?

BTW  When my son bought one automobile he lived outside of the DEQ  
boundary.  Now, after the boundary has been changed, he is inside of  
the boundary and the car must pass DEQ or he cannot drive it.  It  
doesn't pass and refuses to pass.  He used to be able to license and  
drive the car, now he cannot license the car and he cannot drive the  
car.  And because it cannot be licensed in Washington county the  
value had dropped seriously.  Do the residents of Washington county  
owe him for the lost value?

Does he have an absolute right to drive that car anywhere he wishes?   
Does he have an absolute right to pollute the air of Washington  
county with that car?

I don't think so.

David

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