Oregonians reconsider land-use measure
By Pauline Vu, Staff Writer
When Oregonians head to the polls next month to vote on whether to roll back the unprecedented property rights they gave themselves in 2004, some, like Kristi Holaas, will try to correct what they consider a mistake.
Three years ago, Holaas voted for Measure 37 , which forces governments to allow landowners to develop their property under the rules that were on the books when they bought it, or to pay for lost value caused by subsequent rules. But Holaas didn't realize that one day the law would allow the prospect of a 157-home subdivision bordering her 20-acre property.
"We thought [Measure 37] was so that people could divide their land and put a few houses on for their retirement and for their family members," said Holaas, who, along with her Lane County neighbors, is fighting the proposed development. "In no way, shape, or form did we envision anyone coming in and putting cul-de-sacs in the country. We got duped."
The property-compensation law passed in 2004 with 61 percent of the vote, a reaction to Oregon's strictest-in-the-nation land-use laws. Since the law took effect, property owners have filed more than 7,500 claims asking for more than $19 billion in compensation . To avoid the payouts, cities and counties have waived numerous regulations allowing building projects to move forward.
Those in favor of land use warn that, under Measure 37, farmers and cattlemen could potentially find themselves located adjacent to subdivisions and gravel mines. Property-rights proponents call those fears overblown.
If the new law, Measure 49 , passes on Nov. 6, supporters say it will fix the most egregious abuses of the 2004 measure by limiting landowners to three homes on their properties, and up to 10 homes if they can prove land-use regulations have resulted in a financial loss. The measure would also ban subdivisions and industrial uses such as strip malls and mines on land reserved for farms and forests.
But opponents say the current measure would gut the old one. "If 49 passes, it's going to be a tragedy for so many people, a step back for the state," said Bill Moshofsky of Oregonians in Action , the group that wrote the 2004 measure. "It trashes property rights, continues a very restrictive system without regard for the rights of the landowner."
Arizona's law will soon get its first test case. Earlier this month, the city of Flagstaff became the first municipality to be sued by property owners because it refused to waive its regulations for a 15-block historic district where property owners are prohibited from making architectural changes not in line with the design. The city plans to argue that making property conform to a historic district does not lower property value.
"We don't feel like we're creating a negative impact on the properties. If anything, we think it actually improves property value," said Flagstaff spokeswoman Kimberly Ott.
In Oregon, only one city has paid up. Last month Prineville, nestled in a valley with a view of rimrock against the sky, paid Grover Palin $180,000 to keep him from building a house on the ridge and obstructing the community's view.
The 7,500 claims affect about 800,000 acres in mostly rural areas - about 1.3 percent of Oregon's land. Property-rights proponents say that means subdivisions next door to gravel pits are hardly as imminent and ubiquitous as their opponents imply. An analysis by the Institute of Portland Metropolitan Studies shows that more than two-thirds of claims propose nine or fewer new homes.
Shelly Strom, a spokeswoman for the Yes on 49 campaign, said at least 500 claims that have received waivers have started development. "This is just the tip of the iceberg," she said. "As of yet, very little has been completed, but many [claims] are under construction and we know that within coming months, the pace will just pick up."
The divisiveness of Oregon measure can be seen in the mammoth voters' guide produced by the Oregon Secretary of State's office that arrived in residents' mailboxes this month. Most of the 92-page guide is devoted to 117 arguments about Measure 49, with 69 arguments for the measure and 48 against it. Anyone can publish an argument for $500.
Both sides boast the support of various legislators and farming and ranching interests. Those backing the measure include Gov. Ted Kulongoski (D), firefighters' organizations and The Nature Conservancy. Several arguments detail specific claims to build rock quarries, subdivisions or even paintball facilities on land zoned for farm use or forest.
Those against the measure include lumber companies and an anti-tax group. Many arguments discuss the potential loss of property rights and the method by which the measure was put on the ballot.
The Democratic-led Legislature put the measure on the ballot largely on a party-line vote. Although the Legislature held nine public hearings about Measure 37's flaws, critics charge they held none for Measure 49.
Opponents also say that the Legislature bypassed the regular ballot measure process by not allowing the attorney general to draft the title, and that the Legislature-drafted title is misleading for touting the measure's environmental benefits while not mentioning new difficulties it poses for property owners.
Another issue for opponents is that, in reality, most landowners would be able to build only three homes on their properties because the bar for proving economic losses is so high. The measure states landowners can build up to 10 houses if they prove economic losses and if the land isn't high-value farm or forest.
Phil Downing, the owner of a 152-acre hazelnut farm in Washington County, won permission to build 26 houses under Measure 37. Parcels would range from four to 11 acres and each would hold a hazelnut farm. Downing said he envisioned a community of mini-farmers who would continue to tend the trees he planted. He has already spent $80,000 on soil analysis, water testing and permits before halting work, unsure if he would be allowed to finish building.
Downing has been trying to sell his farm since 1999 because of medical problems. If Measure 49 passes, he said he will have few options other than to continue farming.
"From a landowner's perspective, it's mine. I bought it. I paid for it. I've sweat on it. I've shed blood on it. I've raised my children on it. I've grown gardens on it. It's my income, and I love it dearly," he said. "Maybe there are some people that want to have 300 homes on 50 acres, but I'm not one of them. And I don't think I should be pigeon-holed along with the rest of them."