Oregon's Outdoors In the News

Just what is fair depends largely on which side of thousands of property lines each voter stands on

PETER WONG
Statesman Journal

October 22, 2007

The year before he voted for Oregon's property-compensation law Measure 37 in 2004, Don Dean bought property in the hills south of Salem.

He checked beforehand with Marion County planners. He was assured his new home was in a buffer zone next to a farm-use area, and that under the county plan and Oregon's land-use planning laws, he would not have to worry about development next door.

Then after voters approved Measure 37, LeRoy Laack filed a claim seeking compensation or a waiver of land-use regulations to develop 43 home sites on 217 acres. The county planning commission reduced the number, but county commissioners decided to go ahead with 43.

Dean is now part of a group that has been fighting the development -- and earlier this year, urging lawmakers to overhaul the 2004 law.

What lawmakers produced was Measure 49, which is on the Nov. 6 ballot. Although the Legislature has the authority to change a voter-approved law without referring it back to voters, one Democratic representative balked at doing so, and Democrats held a bare majority of 31-29 in the House.

"It's somewhat of a compromise," Dean said. "But it's significantly better than Measure 37, under which we effectively have no land-use planning in Oregon."

But the group that advocated Measure 37 and sponsored a similar constitutional amendment that voters approved in 2000 but the courts overturned has a differing view.

"I like to say that this fixes Measure 37 in the same way that Dr. Jack Kevorkian fixes his patients," said Dave Hunnicutt, president of Oregonians in Action. Kevorkian is the doctor who was released from prison in Michigan after serving time for helping patients commit suicide.

Although the campaign has not been nearly as expensive as the fight about higher cigarette taxes in Measure 50, Measure 49 supporters and opponents have traded a lot of accusations about which side is distorting the truth.

Measure 49 changes the 2004 law -- to the point of gutting it, its opponents say; to the point of fixing its worst features, its supporters say.

For rural landowners who seek approval of three or fewer home sites, their path is eased. According to a database compiled by Portland State University, those claims amount to 42 percent of the total statewide.

For rural landowners who seek approval of four to 10 home sites, they will have to show -- through certified appraisals -- their losses in property values as a result of land-use regulations to gain an equal amount of development. Previous tax breaks for farm or forest-use assessment are deducted. The maximum an individual landowner can receive is 20 home sites in two separate areas.

But landowners proposing larger subdivisions, and commercial and industrial development outside cities are out of luck.

Relatively few Measure 37 claims (4 percent) were filed inside the urban growth boundaries of cities, but Measure 49 allows some relief to those landowners to let them build up to 10 houses.

Landowners who want to build on "high-value" farm and forest lands, based on soil quality and other factors defined in the law, are limited to three home sites. So are landowners who want to build in areas already designated by the state as limited in groundwater supplies.

Hunnicutt complained that between all those limits and the required appraisals for some claims, "what they are creating is a series of hurdles that make it impossible to qualify."

He also argued that by requiring landowners to show that a land-use regulation "prohibited" building a home when they acquired the property, instead of "restricting" it, Measure 49 is "inexplicable."

But state Rep. Brian Clem, who sat on the joint committee that drafted what became Measure 49, has a differing view.

"Our measure honors more closely what the voters wanted to see," said Clem, a Democrat from Salem and the co-owner of an 80-acre family orchard near Hood River.

"The tone of this debate has changed significantly from a few years ago. People are open to the idea that a rural landowner can get a house or two that, before now, they may not have thought the owner was entitled to because it was on agricultural land. I give credit to these landowners, because they are going to get what they asked for.

"The question now is: Should we rein in everything else?" Clem added. "I think the answer is yes."

Clem also said Measure 49 clarifies landowners' ability to transfer waivers of government land-use regulations allowing them to build. A 2005 opinion from the attorney general said only current landowners retain such rights under Measure 37, although Measure 37's advocates dispute that view.

The public debate has been influenced by the 7,562 claims filed between December 2004, when the law took effect, and a deadline of Dec. 4, 2006, written into the law. Claims still can be filed, but they are subject to additional procedural hurdles under the law's provisions.

More than 750,000 acres would be affected. Hunnicutt said that's barely 3 percent of the state's land area, excluding the half of Oregon that is under federal management.

Henry Richmond, executive director of the American Land institute, said that the locations of those claims are matters most -- in the Willamette Valley, which has the state's best farmland.

Richmond was the executive director of the land-use watchdog group 1000 Friends of Oregon from its founding in 1975 until 1993, when he took his current job. He said he would have preferred an even stricter test of financial loss before landowners could build two or three houses on "high-value" farmland.

"We do not have that choice with Measure 49," he said. "In the Willamette Valley, the choice is between a bunch of developments that are three lots each -- and I would guess that half the claims in the valley are on high-value farmland -- or a lot more development without Measure 49."

According to a study released by Environment Oregon, which backs Measure 49, Measure 37 claims propose subdivisions and other development on more than half a million acres of farmland. That's more than three times the 165,000 acres of farmland that Oregon has lost in any five-year span, and 40 percent more than the maximum amount lost during a single span.

"Eighty percent of the claims might not be able to develop as proposed," said Kathy Freeborn, a Polk County farmer who has been in TV commercials for Measure 49. "But they do get up to three houses, and some qualify for more, so it's not the case they cannot do anything with their property."

Hunnicutt said potential development is exaggerated by Measure 49 supporters.

"While the proponents of Measure 49 go to great lengths to talk about all of these giant subdivisions that claimants are going to build, you won't find any of those because of the health and safety exemption in the 2004 law," he said. "You have to assure the general public and the governing body that you can build in a way that is safe."

But Hunnicutt's critics said many claimants are seeking to build on the maximum number of lots permitted. Among the claims are a casino near St. Paul, a shopping center near Rickreall, and 17,000 homes near Klamath Falls.

In western Washington County, where Stimson Lumber Co. (the largest single claimant statewide) and other landowners filed extensive claims, "they are not going to sit back and hedge their bets," said Nancy Ponzi, whose family vineyard has existed since 1970.

That potential has farmers worried.

Although farm bureaus in eight Willamette Valley counties opposed the original Measure 37, the Oregon Farm Bureau Federation took no stand on it in 2004. This time the state federation endorsed Measure 49.

Hunnicutt dismissed the significance of that endorsement.

"Farmers' motivation is that they want to be able to lease their neighbors' land for cheap, and it's hard for them to do so if their neighbor has something else to do with it beside being forced to give it to the neighboring property owner," he said. "Their interest is financial -- their own."

Wayne Simmons, a farmer who would like to subdivide 266 acres atop West Salem's Eola Hills, was even more critical of grape-growers and the Oregon Winegrowers Association, which backs Measure 49.

"The state should not have a policy of preserving something that will injure your health," said Simmons, who also sits on the Polk County Planning Commission. "They're looking only at the economics. These people aren't farmers; they're rich people who want to raise grapes."

Measure 49 would expand state protection for lands defined by federal regulations as suitable for vineyards. According to a study released by Environment Oregon, which backs Measure 49, nearly 1,300 Measure 37 claims are proposed on 103,282 acres that otherwise would be protected -- and virtually all of that land is in the Willamette Valley.

About 10,000 acres in the valley are planted in wine grapes, according to the Oregon Wine Board.

Mid-Valley counties lead Oregon in growing wine grapes -- Yamhill first, Polk second and Marion fifth. Wine grapes were Oregon's 11th-ranking crop by value in 2006. Oregon ranked fifth in the nation.

"We don't want to see hobby farms out here, either," Ponzi said. "We need real farms, and that's why people need large acreages."

As climate change affects the world, she added, the Willamette Valley may become even more important to agriculture.

Because of questions about food imported from other countries, home-grown products may make a resurgence. Dan Goffin, a farmer east of Salem, said urban voters should care about Measure 49 for that reason alone.

"We are held to a higher standard here in Oregon and the United States than in other countries," said Goffin, who also sits on the Marion County Planning Commission. "If people want to know the quality of their food and whether it is healthy, we need to keep our agricultural infrastructure here. We need to protect our farmland so we can grow our own food. We cannot depend on the rest of the world."

Marion County is Oregon's top agricultural producer with $585.3 million in value in 2006. About a third of that was in greenhouse and plant-nursery products, the state's leading commodity. Polk County is the state's 10th largest agricultural producer at $146.3 million.

"We've gotten either bigger or more specialized," said Tom Brawley, a farmer near Jefferson who is supporting Measure 49, and who was the public face of the opposition to the 2004 law via a television commercial. "Farming is probably one of the most essential occupations we can have -- and it will remain so, until we can come up with a substitute for eating."

pwong@StatesmanJournal.com or (503) 399-6745