Oregon’s infamous Ballot Measure 37 created an
old-fashioned land rush as property owners, developers and
opportunists raced to file claims for compensation before the
recent deadline. An estimated 3,600 claims were filed, and
it’s possible that the last-minute rush added 1,000 more. The
total cost of the claims may top $7 billion, though no one can be
sure until all claims are processed, which will take months.
Measure 37 requires that property owners whose land came
under added restrictions after they bought it must be exempted from
those restrictions or paid for the “lost value.” That lost value is
the difference between the value of the land today and the value it
might have today if restrictions had not been imposed. This is a
sweet deal for people who have held land for decades, and it has
led to some interesting claims.
The Plum Creek timber
company, for example, wants to build houses on 32,000 acres of
coastal timberland it recently acquired through a merger. A Eugene
gravel company wants to build a subdivision on land near its
quarry. The owner of a mining claim close to a town wants to mine
rock. The owner of a farm in Clackamas County wants to put a
subdivision on his farm, regardless of the consequences to the
neighboring farmers. Another claim demands to build a casino resort
on farmland.
Measure 37’s real purpose is unmasked:
Pay property owners blood money to obey present zoning law, or else
exempt them from the restrictions.
Chaotic land-use rules
are not new to Oregon. A hodgepodge of conflicting uses was the
rule rather than the exception during the post-World War II
building boom and the suburban sprawl it created. Frequently, the
first notice neighbors had that zoning had been changed was the
sound of bulldozers tearing up the ground next door. Measure 37 is
now returning us to those thrilling days of yesteryear.
That was a time when neighbors had little say in how land was used
around them. A developer decided what was best, and neighbors
simply adjusted to the consequences, or sold and left. These were
the conditions that prompted the Oregon Legislature to pass its
landmark land-use law in 1973. It protected farm and forestland
from incompatible uses and restricted urban growth to existing
communities with established services.
Supporters of
Measure 37 don’t talk about the cost of their law because
they don’t expect that the outrageous compensation will ever
be paid. In any case, the state hasn’t the billions to pay
these claims, and the developers who backed Measure 37 simply
expected the restrictions to be waived. Developers really
don’t want to listen to the neighbors. But elected officials
had better start listening: The Measure 37 backlash is building.
If city and county governments start waiving restrictions
because they cannot pay compensation, the neighbors, faced with
chaotic, incompatible uses, will draft an initiative and repeal
Measure 37, or demand that the Legislature raise the money to pay
the claims. The only serious means of raising the billions
necessary is a real estate transaction tax, which the real estate
industry will certainly oppose.
But cash for compensation
is really the wrong discussion. Oregon never really had the right
discussion. Measure 37 was sold through images of the
developers’ pathetic pawn, Dorothy English, an aging widow
who couldn’t build her dream house. It’s clear now that
the measure’s real purpose was to allow development where
development has not been permitted, whether such development is
compatible with the neighbors or not.
Evidence of
buyer’s remorse is obvious. Although 61 percent of those who
cast ballots voted for it in 2004, a poll commissioned by Defenders
of Wildlife and the Izaak Walton League just before last
month’s election showed only 29 percent of those polled would
vote for Measure 37 again; 48 percent would vote against it, and 21
percent were unsure of how they would vote.
The Oregon
Legislature will find it impossible to “fix” Measure 37. It was
drafted to be vague in order to disguise its true purpose. It was a
legal quagmire, created in the cynical notion that there would
never be enough money to pay compensation and so regulations would
have to be waived. Better-written Measure 37 clones were on the
ballot in four states last month, and in Washington, California and
Idaho they failed. One measure passed narrowly in Arizona.
The Oregon Legislature needs to repeal Measure 37. Its
supporters could draft a clear and honest version, buy the
necessary signatures, and put it on the ballot. Then Oregonians can
have the kind of debate we should have had two years ago.
Russell Sadler is a freelance writer in Eugene,
Oregon.
This article appeared in the print edition of the magazine with the headline Chickens are roosting on private property in Oregon.
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