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Anti-Sprawl Laws, Property Rights Collide in Oregon

Measure 37 was sold to voters last year as a matter of fairness. On ubiquitous radio ads, the frail, woebegone voice of Dorothy English, who bought land in 1953, explained how land-use laws had blocked her from dividing her 40 acres for her children. "I'm 91 years old, my husband is dead and I don't know how much longer I can fight," she said. The ballot measure won with 61 percent of the vote.

State financial records, though, show that small family farmers contributed virtually nothing to the Family Farm Preservation political action committee that bankrolled Measure 37. Most of the money came from timber companies and real estate interests that stand to profit if, as many here expect, large tracts of forests and farmland are unlocked for development.

Heather Blaine-McCurdy says developing adjacent land for housing would force changes in the way she and her husband operate their pear orchard. (Photos Blaine Harden -- The Washington Post)

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This mirrors a national pattern, according to Jacobs, at the University of Wisconsin. He says that property-rights campaigns are often sold to voters as compensation for struggling small landholders, while the support money comes from large companies seeking ways around regulations that limit resource extraction and property development.

As Measure 37 percolates through Oregon's legal and political system, it is stirring up bad blood of a kind that was on public display here in Hood River during a hearing convened by members of the state Senate committee on land use.

The star witness at the hearing was John M. Benton, whose family has been growing fruit near Hood River for nearly a century. This town, a destination resort for Columbia River wind surfers, has experienced a steep rise in real estate values caused, in large measure, by land-use laws that prevent orchards on the edge of town from being turned into subdivisions.

To take advantage of this market, Benton wants to convert 210 acres of his family orchard into housing. The resale value of his orchard, if it continues to be zoned exclusively as farmland, would be about $8,000 an acre. But if it were sold for housing, Benton said, it would fetch $284,000 an acre.

Benton and his family have filed a Measure 37 claim demanding that they be paid $57 million for their land or else be allowed to build as many as 800 houses. State and county officials say that they have no money to pay and that building appears to be the only option under the law.

The Oregon legislature, Benton told the hearing, should "quit trying to be social engineers and let the market forces and the good people in this state realize their potential."

His testimony appalled many of his neighbors, who are also longtime fruit growers in the gorge. They testified that Benton's plan to inject suburbia into orchard country could push the local fruit-growing economy into irreversible decline. They also said that development unleashed by Measure 37 would desecrate scenery that makes the gorge one of the major tourist destinations in the Pacific Northwest. Tourists, they said, do not come to the gorge to look at subdivisions.

During a break in the hearing, Benton was asked about the fury that his plan has unleashed among his neighbors.

"Life is not equal," he said. "There is a law that got passed, and there is going to be a good amount of whining going on."

Indeed, a major complaint about Measure 37 is that it has created a privileged group of landowners in Oregon.

"A whole class of owners has special rights and they can exercise them whenever they feel like it," said Ethan Seltzer, director of the School of Urban Studies and Planning at Portland State University.

Oregonians whose families owned property before statewide land-use laws were imposed (beginning in 1973) can take advantage of the monetary and development relief offered under Measure 37, but those who bought land afterward cannot.

About 200 claims, mostly from small farms, have been filed statewide under Measure 37, according to the Oregon Land Conservation and Development Commission.

But the director of the commission, Lane Shetterly, said there are probably many more claimants -- some with major development plans. They are biding their time, he said, waiting for a number of uncertainties in the new law to be worked out.

First among those uncertainties is whether a qualified property owner can sell his development rights under the new law. Banks would be very reluctant to lend money, Shetterly said, if resale voids the benefits of Measure 37 and subjects new owners to land-use restrictions.

Another major problem with Measure 37 is that it requires no public hearings or notification of neighbors when a longtime landowner decides to turn a farm into a strip mall. The law, in fact, says nothing about the rights of neighbors.

In Yamhill County, an exurb of Portland where vineyards produce the state's pinot noir grape, the absence of neighbor notification has provoked emotional exchanges among neighbors and elected officials.

"My heart hurts over the lack of public notice," Mary Stern, chairman of the county Board of Commissioners and a Democrat, said during a recent hearing. "We are creating another class of victims."

In response, Kathy George, another member of the board and a Republican, said, "I am very sick also over the way our land-use laws have abused private citizens over the past 30 years."

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