Measure 49: Will it fix or hurt land-use regulations?
by: L.E. Baskow, 
The Measure 49 debate is being played out on roadside signs across the state.

Clackamas County nurseryman Jim Gilbert looks at what will happen if Measure 49 fails. And he sees disaster.

'If you look at that map,' Gilbert says, pointing to a map of Measure 37 claims for potential developments - big and small ones - peppered throughout Washington, Clackamas and Multnomah counties. 'It's like a cancer on our valley. We only have one Willamette Valley. We don't have any more than this.'

Retired Clackamas County farmers Duane and Janice Weeks look at what will happen if Measure 49 passes. And they see fundamental unfairness. And the end of their hopes to ever sell for a decent price the modest 20 acres of land where they have made a home. Twenty acres that pretty much represents their retirement fund.

Under an approved Measure 49, 'they can stall you and stall you and stall you - until you're broke or dead,' Duane Weeks says.

'Or both,' Janice adds.

Another battle is being staged in the war over Oregon's land-use system. State voters will decide in a vote-by-mail election Nov. 6 whether to approve or reject Measure 49 - which would amend the land-use reforms that state voters approved through Measure 37 three years ago.

Nov. 6 will end the battle. It decidedly will not end the war.

The basics of Measure 37, approved by 61 percent of state voters in 2004, are that if land-use regulations are imposed on a property after a landowner has purchased the property, the government must either compensate the landowner or waive the regulations if they have reduced the value of the property.

Measure 49, referred to voters almost exclusively with Democratic support in the state Legislature, pulls back some aspects of Measure 37.

It would remain relatively simple for a landowner to get approval to develop three homes on his land, and it would remain possible to build developments of up to 10 homes in areas that aren't considered high-value farmland and aren't short of groundwater.

But it would disallow any commercial or industrial development and many large subdivisions.

Individuals and industries have spent more than $6 million on the campaign for and against Measure 49 - with wineries and a couple of land conservation groups heavily on the pro-49 side and the timber industry and developers heavily on the anti-49 side.

But even those millions of dollars, buying reams and hours of strident campaign advertising, don't reveal the passion that Measure 49 - like all land-use debates - has engendered across Oregon.

That passion is best revealed through men and women like Gilbert and the Weeks.

They passionately debate land, and property, and the right of people to keep the government from taking what should be theirs. And they debate community, and haphazard development, and the possibility of losing forever some of the things that are good and distinct about Oregon.

They also debate the innards of what Measure 49 would do, and whether it amends the land-use reforms that state voters strongly approved - fixing problems with that measure - or guts those reforms.

Dave Hunnicutt, head of the property rights group Oregonians in Action, which sponsored Measure 37 and is the lead group opposing Measure 49, has a line he delivers every chance he gets. It's about the Michigan physician imprisoned in 1999 for helping his patient commit suicide.

Measure 49 'fixes Measure 37 in the same way that Jack Kevorkian fixes his patients,' Hunnicutt says.

Hunnicutt says he doesn't argue that some changes need to be made to Measure 37; 'The issue is whether 49 actually makes changes or really just repeals the measure,' he says.

'My job during this campaign is to get people to read this thing,' says Hunnicutt, pointing to a copy of the text of Measure 49, which he often carries during debates. 'And once they read it, I don't think they'll vote for it.'

He doubts, he says, that even small landowners will get easy approval on even simple claims under Measure 49.

'The people who are promised they're going to get something under this measure … are going to be frustrated,' he says.

But supporters of Measure 49 say that Measure 37 - pitched as something that would allow small-time landowners to sell small pieces of their land to build one or two or three houses - has spawned plans for things that most voters never imagined, including: Large gravel mines in Clackamas County, sprawling housing developments in rural Washington County and huge billboards in Portland.

'No one who voted on Measure 37 was told they were voting to approve billboards,' says Multnomah County Commissioner Jeff Cogen.

Cogen and other Measure 49 supporters say it would keep the spirit of Measure 37, while also keeping sensible land use protections.

Measure 37 grants rights 'to a landowner to develop his property,' Cogen says. 'But it ignores the rights of a neighbor to not have a billboard, or a pig farm, right next to him. And it also ignores the right of a community to develop the way it wants to develop.

'I know it was designed to address unfairness,' Cogen says. 'But it creates at least as much unfairness. And it does it in a way that's really not thoughtful.'

Election officials began mailing out ballots late for the Nov. 6 election last week. The debate - at least over this battle in the land use wars - ends in less than two weeks.

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