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.