Oregon

'Certainty' Of Measure 49 Seems Uncertain At Best

OPB | Oct. 8, 2007 9:54 a.m. | Updated: July 17, 2012 1:18 a.m. | Portland, OR

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By Rob Manning

This week voters’ guides will hit Oregon mailboxes. And once again, the question of property rights and land-use planning are front and center.

You’ll find dozens of arguments “for” and “against” Measure 49. That’s the legislative referral to limit development allowed under property compensation initiative, Measure 37.

It changes the process for reviewing claims, and addresses the measure's legal uncertainties. But as Rob Manning reports, defining “certainty” is itself an uncertain game.


To better understand the issues behind Measure 37 and the referral meant to scale it back, try thinking of land-use as a board game.

Let's say you are player one, a Measure 37 claimant . And “Square One” – so to speak – is the date you acquired your property. We’ll play this game using the case of a woman from Yamhill County – named Marla Robison.

Marla Robison: “My family, we bought the property in 1972, to raise our family, enjoy the country, so the children could have horses, and we eventually thought we would sell part of the property for our retirement fund.”

But move Marla Robison’s playing piece around the board as time passes….

In the early 1970’s, the state passed land-use laws. In the years that followed, Yamhill County zoned much of the county as farm or forest.

That had some advantages. Farmers paid lower taxes than they would have otherwise. And Chehalem winery founder, Harry Peterson-Nedry saw his business take off.

Harry Peterson-Nedry: “Oregon wine country would not exist today, if farm and forest lands had been exploited yesterday.”

But where grape growers got to advance several spaces in our game, Marla Robison suffered a setback to her retirement plans. She was offered hope when Measure 37 passed by more than twenty percentage points in 2004.  Robison took full advantage.

Marla Robison: “I filed a Measure 37 claim, and they said I could go back to the original time that I bought it, which would be 2-1/2 acre parcels. That’s what I had applied for, and was passed by the county and the state.”

But has Marla Robison reached the finish line?  Not exactly.

Regardless of this fall’s election, Robison still has only rounded the first corner, under the current law of the land, Measure 37.

Yamhill County planning director Mike Brandt says it’s not at all clear whether the Robisons could actually build on the 17 lots listed on her Measure 37 claim.

Mike Brandt: “Boy, that is a good question. Well, first of all, they haven’t applied for that, they’ve only applied to partition two lots off of the property.”

Building more than two houses, would be a roll of the dice.

In Marla Robison’s case, the rules that matter are those that were in place when she bought the property in 1972. At that time, Yamhill County had very general rules about farming. Those rules got stricter later on. But the question relevant to Yamhill County’s Mike Brandt, is whether it’s feasible to farm a piece of land  that's only about twice the size of a Portland city block.

Mike Brandt: “I’m not aware of what the farm use would be on 2-1/2 acres, if they could do that. I guess, again, I’m just going to tell you, they could make an application, and we would review it against the applicable laws that were in place.”

The Robisons are one of dozens of families having difficulty moving forward.

Only a few hundred, of the more than seven thousand Measure 37 claims, have proceeded to the “building application” stage, according to state officials. Few houses have gone up. Many claimants are waiting for resolution from the courts.

More than a hundred Measure 37 lawsuits are still tied up in court.  Questions remain around “ownership” guidelines, farm and safety rules, and whether it’s OK to sell what you build.

Jeremiah Baumann with the “Yes on 49” campaign, says that Measure 49 addresses those problems.

Jeremiah Baumann: “Measure 49 makes it clear that you can give that property to your children, or to your spouse, or you could even sell it, and maintain the right to have those small and non-damaging developments – a home, or two, or maybe even more, under certain circumstances.”

So should folks like the Robisons go back to square one and start over with Measure 49?

A handful of Measure 37 claimants have voiced support for Measure 49, arguing that the referral is an improvement. Others argue that would be costly. And Mike Brandt with Yamhill County says Measure 49 is uncertain, too – even if you want just the few homes the referral focuses on.

Mike Brandt: “There are some requirements in it, for dividing even up to three lots, that are, that limit the lot size and limit exactly where those lots can be on a particular piece of property to minimize impacts on agricultural land, and I see those criteria as somewhat subjective.”

And by subjective, Brandt means “subject to litigation.”

What is clear, is that large and non-residential development that is allowed under Measure 37 would not be under 49.

Many backers of Measure 37 now oppose measure 49. Initiative sponsor, Dave Hunnicutt, suggests the referral puts up roadblocks through subtle choices in language.

Dave Hunnicutt: “The way they’ve written Measure 49, if there’s only one regulation that restricts you from building on your land, but it doesn’t prohibit you from building on that land, that regulation comes back into play. And that’s the whole point – why did people file Measure 37 claims in rural areas?”

Other land-use attorneys contacted by OPB argued that Hunnicutt is overstating the impact of those words. But that kind of an argument among lawyers may signal a lawsuit waiting to happen.

Where does this put the Robisons, or farmers, playing our game? Waiting for resolution – a resolution that may take a lot longer than the referral vote in November.

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