Cutting Back on Measure 37

A few years ago, voters in Oregon passed Measure 37, an initiative that required the government to compensate property owners when land use regulations caused any decline in the value of their property or, alternatively, to free complaining owners from the offending regulation.  The Measure 37 campaign made very effective use of anecdotes detailing the inability of rural landowners to make seemingly reasonable uses of their land under Oregon's stringent state-wide land-use regulatory regime.  For example, ads featured Dorothy English, a 93-year-old widow living on 20 acres near Portland, who had owned her land since 1953 but was blocked by the state land use law from building a home for her grandson.  When it passed with a very convincing majority, Measure 37 was hailed as a huge victory for property rights activists, who interpreted its passage as a broad-based rejection by property owners of Oregon-style land use regulation.   When critics of Measure 37 suggested that voters might not have understood the full implications of what they were doing, property-rights advocates chided them for their elitism.

Yesterday, the shoe was on the other foot.  Oregon voters passed, by a similarly wide margin, Measure 49, which substantially cuts back on the remedies available to property owners asserting claims under Measure 37.    Measure 49 tapped into a reservoir of voters who were experiencing a little bit of buyers' remorse in the wake of the flood of claims (and the threat of rural development) unleashed by Measure 37.   Last year, the blog GOAT gathered a number of stories of such voters.  One of them was Ted Schroeder:

Schroeder, a doctor, lives on 52 acres in the rural Grande Ronde Valley in northeast Oregon. He voted for Oregon’s Measure 37 and regrets it. A neighboring family, operating as Terra-Magic Inc., has filed a Measure 37 claim, seeking to brush aside agricultural zoning and subdivide 1,400 acres of prime farmland into 335 home sites. The valley is mostly farms, which grow mint, grass seed, potatoes, alfalfa and wheat. Many residents say that an influx of homes on small lots would change the valley’s character forever. Opponents also say it would cause conflicts with farm activities, including increased traffic, dogs harassing livestock, and intolerance toward field burning and pre-dawn harvesting. On June 7, the Union County Commissioners (all three Republicans) rejected the developer’s claim on a technicality, but the developer will likely appeal to circuit court. Schroeder is not optimistic the development can be stopped, and he feels deceived.

Under the new law, landowners who can establish that regulation caused their property values to decline will be entitled to some relief, but not the virtually complete liberation from land use regulation that some owners enjoyed under Measure 37.   Owners will be entitled to build one to 10 houses on burdened rural parcels under various scenarios, but typically not more than three.  In effect, the measure tries to strike something of a middle ground, permitting some rural development in order to address horror stories like Dorothy English's inability to build a home for her grandson, but prohibiting new hundred-home subdivisions and commercial and industrial development in rural areas outside of Oregon's urban growth boundaries.   

In the wake of their defeat yesterday, property-rights groups, who opposed Measure 49 as an evisceration of Measure 37, are echoing earlier arguments raised by opponents of Measure 37 concerning voters' understanding of the implications of their actions.  According to Dave Hunnicutt, president of the property-rights group Oregonians in Action, (per the Oregonian) opponents never had a chance because Democratic legislators wrote the 21-page measure's ballot title and explanatory statement themselves.  "I'm not sure voters ever really got a chance to understand one way or the other what the impact of 49 really does," he said.