So far, Oregon land-use measure is more bark than bite

 

Note: This article is a sidebar to this issue's feature story, "How dense can we be?"

Thanks to a set of strict, generation-old land-use laws, Oregon has escaped much of the scattered "exurban" development common in other Western states. But sprawl fighters feared the worst last November, when voters passed a ballot measure that could unleash development across the state (HCN, 11/22/04: Election Day surprises in the schizophrenic West).

Measure 37 says that if land-use regulations diminish the value of property by limiting development, the regulating agency must either pay the owner for the lost value, or waive the rules and allow new development. Its passage has led to about 1,000 claims from landowners who say county and state governments need to pay up or butt out. The most notable claims come from around the Willamette Valley, in the high desert around Bend, and near the fast-growing town of Hood River in the Columbia Gorge.

Portland widow Dorothy English, 92, garnered wide support for the measure with her personal story and radio rallying cry, "I’ve always been fighting the government, and I’m not going to stop!" On May 12, she won state permission to create eight new lots on her 19 acres of land. Maralynn Abrams, another avid Measure 37 supporter, filed a claim late last year, seeking permission to build hundreds of houses and commercial developments on 345 acres of farmland on the outskirts of McMinnville. Two brothers who live near the small farm town of St. Paul have proclaimed their intent to develop, among other things, a casino. (That particular vision is considered highly unlikely to bear fruit.) And a proposal in lightly populated, farm-oriented Polk County contemplates a million-square-foot shopping center.

Most of these claims are tied up in local and state bureaucracies. But Lane Shetterly, director of the state Department of Land Conservation and Development, says that of the 378 cases which had reached his office by the end of May, most are for exurban development.

"The potential is significant," he says. "In fact, of claims we’ve received, 95 percent are for some form of land division. Those would be typically rural claims."

Many claims, however, involve small issues, like requests to place a single house or guest cabin on a piece of farm property. Such projects were often barred under the old land-use laws. And all of those laws, heated rhetoric notwithstanding, do remain in place. So do provisions related to health, safety and other concerns, any of which may limit property use without triggering a need for payments or waivers.

Measure 37 has not turned out to be as liberating as some property-rights advocates had hoped. Waivers are allowed only when land-use rules change after a landowner obtains the property; many claims have been rejected because owners sought waivers for rules already in place when they acquired the land.

Some farmers who hoped to sell land to housing developers were dismayed by a March 1 opinion from Attorney General Hardy Myers, who concluded that development waivers aren’t transferable. A farmer could get a waiver allowing development, for instance, but as soon as he sells to a developer, the waiver is moot, and all current land-use rules come back into effect, in Myers’ view.

The Oregon Legislature has been wrestling with revisions to the law. The most debated measure as of May is Senate Bill 1037. In the interest of trying to clear both a Democratic state Senate and a Republican state House, the measure would allow development rights to be transferred from one owner to another, but also limit property division sizes, and keep owners from filing claims on some coastal and other property. The editors of the Oregonian newspaper and the nonprofit 1000 Friends of Oregon, warn, however, that the much-amended legislation could create more land-use problems than it would solve.

Sprawl busters, including several county Farm Bureau organizations, have also mounted a legal challenge. They argue that Measure 37 is unconstitutional because it treats landowners differently, depending on when and how they obtained their property. The case is pending before a Marion County judge.

The author writes from Carlton, Oregon.

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