« Property rights come from society, not God | Main | Marion County decision spreads more Measure 37 bullshit »

June 11, 2007


Very good, Brian.

When you undress OIA, you find an extremist organization that is fundamentally anti-government. People who are fundamentally anti-government are extremists. You know, the type you file away with the David Koresh's, Gerald L. K. Smith's and posse comitatis types, just to mention a few.

There concept of "takings" is problematic. Two recent decisions from 2005, one by the Oregon Supreme Court, and they other from the U.S. Supreme Court address and reject the concept of partial takings unless such takings constitute the plain language of the Fifth Amendment.

And if there is anything worse than OIA types, it has to be otherwise normal people who seize upon this issue for their own short term gain (like the building and real estate lobbyists). In my book, we call them parasites.

It will not be easy, but I am in a sense relieved that they have to result to the bullshit you so clearly set out. The truth will out.

The bill is not satisfactory to those of us who hold to the land use principles of Oregon law. But I think we have to support it and to do so with passion.

"There [sic] concept of 'takings' is problematic." I have a comment on that comment.

When I was a lad, growing up near Seattle, the people of King County passed a large bond measure to buy the development rights of dairy farmers in Carnation. Were they stupid? ignorant of the law? devil-may-care with their tax money? Or what?

No court decision forbids citizens to compensate their neighbors when they reduce the value of their neighbor's property for the common good. In States all over our wonderful country bond measures--hundreds of them, I have no idea how many exactly--have passed in local and State referendums for the purpose of buying development rights, conservation easements, etc. to preserve open space and encourage farmland preservation.

Should the good people in these many,many other States who have not chosen to follow Oregon's solitary, envelope-pushing, example really be compared to David Koresh??? Or did this whole situation merely happen because the 1974 and later Oregon Legislatures simply couldn't get their act together?

There is an old adage in politics, "If there is no solution, then there is no problem." Since a timely solution to the compensation problem was never achieved by the legislature or pushed through the enlightened leadership of any governor, the position of 1000 Friends and those with similar views seems to have evolved, or drifted, or meandered, into the "there is no problem" approach. For thirty-four years, no less!!!

HB 3450 does not acknowledge this abject failure, nor does it attempt to improve Oregon's tacky governmental behavior in the future.

Personally I find it rather embarrassing. I would rather pay for what I get. By the way, I am not one of the 7500 who have a Measure 37 claim--I don't even know anyon who does--and I do not work for a timber company.

Tom is right when he says " No court decision forbids citizens to compensate their neighbors when they reduce the value of their neighbor's property for the common good."

The Court also has said that it cannot make the connection between a zoning ruling that has both benefifts and costs as a "taking" unless the rule also effectively denies any use of the land.

The problem with 37 is that it looks only to purported losses and simultaneously fails to address the gains. There is a good discussion of this at these two sites. I recommend their (I think my fingers got it right this time) being read:


There is a similar report from OSU

The second article is about property values by a real estate developer:


I don't believe it is the obligation of those who were hurt by Oregon's land use system to design a workable compensation system--that problem is the (failed) responsibility of the legislature and the governor of Oregon. Measure 37 backers did not create the problem of unfairness. Through its negligence, the legislature did. Oregon's land use system was originally envisioned as containing a compensation feature. The fact that such a system was never put in place was not a deliberate act, but the consequence of having a disfunctional governmental system.

As far as whether "Smart Growth" is either a positive or negative feature for an overall local economy, that has almost nothing to do with the with the compensation or fairness issue. True, some have argued that Smart Growth strangles local economies and have tried to connect this to a larger, overall argument in favor of vigorous property rights. But this red herring has nothing to do with how to treat "winners" and "losers" in the State of Oregon. Anyone who tries to argue that Portland's Urban Growth Boundary has not caused home prices to increase inside the boundary, and has not caused owners of land outside the boundary, particularly those very close and with type 1 or 2 soil, to lose value might as well be arguing against the law of gravity.

Personally, I don't think that the owners of large tracts of land, say in Hood River, or Lebanon lost much value in 1974, because they were too far from jobs and services to actually have much present day development value circa 1974. But the situation is totally different for someone say owning property in Sherwood. The very idea that the same fix (the centerpiece of HB 3540, incidentally) should be applied to both "types" of land, well located and poorly located, is solely based on consideration of simplicty and convenience for the drafters, and not for the real life problems that people actually face. Why should Mrs. English, 1000 yards from Portland's Urban Growth Boundary get the same number of building permits as someone who owns 23 acres in Burns or Lakeview or K Falls? Idiotic. Quick and dirty.

Tom: the problem that I have is not so much the failure of a legislature 15 session ago to compensate landowners as it is the very concept of compensation. I know that this is a divisive issue, but from my reading of the measure, it all turns on compensation for loss. The definition of loss seems to me to be framed in terms of looking at one side of a balance sheet while ignoring the other.

As you rightly point out, how in the world are we to know whether the property lost anything. No one has restricted the owner from doing WITH the land what they were doing at the time the regulation was established.

It is a problem when you look at what the property owner wanted to do PROSEPECTIVELY with the land. Zoning and land use policies address what one does with the land, not what one might like to do with the land in the future.

Richard: I'm in favor of fair and reasonable compensation from the get-go. Had a proper, workmanlike job been done in 1974 we wouldn't be where we are today and I believe it could have been done in an affordable way (unlike now, when real estate values have been distorted beyond all recognition). Measure 37 is sloppy and needs to be fixed, but only by a bipartisan agreement, not HB 3450. Fundamentally we need to acknowedge that unfairness should not and does not need to be tolerated. Green belts, aesthetic preservation of un-economic farmland, and worthy conservation projects all need to be funded and administered through the use of eminent domain or a less formal equivalent process. Oregon's system just leads to endless hard feelings and constant bickering. I'm sick of it.

Tom: I do not think I am among those who would say that compensation is never appropriate. We live in a far too complex world and public policy can be good, bad, or ugly (with apologies to Sergio Leone).

When compensation may be due is not an easy determination. Measure 37 sets so low a threshold that it scuttles effective land use planning. The major backers of 37 think this is a good idea; I do not..

To take one example. A person buys 20 acres of land fifty years ago. Fifty years ago there was no specific land use zoning. The person bought the property to farm. The suburbs begin to creep outward and the property is zoned as AR-5. The farmer continues to farm, but sees this 20 acres as four lots that could fund his retirement. Later, the property is rezoned at a 20 acre minimum.

Has he lost anything? He can still farm the land and sell it either as a farm or as a 20 acre residential parcel. If he could have partitioned and sold four lots, he would have made much more.

Is compensation due?

Corollary: He bought the property and it was zoned AR-5 and he bought it for the purpose of development. After buying the property, it is rezoned as above. Is compensation appropriate?

I have real problems compensating property owners who say that they lost investment value. The person farms and plans later to subdivide. He reaps his current use, but holds it as an investment. There is an FDIC, but should there be an FPIC (P = Property)?

Then there is the matter of loss, which is well addressed in one of the links I provided earlier.

I mentioned that I had no measure 37 claim, nor did I know anyone who did, nor did I work for a timber company.

However, in an earlier life I was a Washingtonian. In fact in 1978 my family bought some land in LaCenter, WA., about 7 miles off I-5 at exit 16; so it was a 22 mile drive to the Columbia River Bridge. We also owned a house about three miles away.

In 1979, Clark County adopted a "Comprehensive Plan." This changed our zoning from "rural," where 5 acre divisions were a snap to do and practically free, to "Agricultural," but with a compensating kicker--in lieu of a bond measure to buy develoment rights.

Now "clustering" was allowed; for each 20 acres a person owned, five small (one acre approximately) lots were allowed with the balance to be left as a remainder lot--so you got 6 lots altogether, potentially--if you could get six pec tests (a very big "if" and probably impossible on our property.)

There were three basic new categories of land outside the newly minted Urban Growth Boundaries (LaCenter's was/is about 2 miles from our property). In addition to Agricultural, there was Forest, and finally AG-Forest.

In 1992, a moratorium was declared on clustering, in anticipation of the expected "Growth Management Act" of Washington State, which was largely inspired by Oregon. By then we no longer lived there and had become Oregonians.

Our land became "resource land" according to the State of Washington in 1994, even though it was very wet and all we were able to do with it was grow low quality hay--if it dried out and if it didn't rain on the hay and if we could get someone to mow it.

Around 1997 or 8, due to a prolonged public outcry against "downzoning" and a lawsuit which challenged the legitimacy of the catagorization, the Clark County Commissioners brought back clustering, but only for those previously in the AG-Forest category. Agricultural and Forest were hung out to dry with minimum 20 no clustering--"Resource Land."

Although we were only a few thousand feet from a water main and could not afford to hook up for just one lot, we were tempted to do so anyway, because our well went dry--probably because too many people had moved into the area. We begged the planners for permision to split our property so we could bring in the water. We wanted to sell.

Our neighbors across the street had the good sense to plat their property in 5 acre parcels in the 1960's and finally developed a few years ago. They had 11 lots, right across the street, now covered with little estates, each worth 400-600K. Finally, with in a close vote (6 to 5, I believe, and we had to buy 2 shares because we had 23 acres and the others had 5) we and our other neighbors voted to extend the water main, so we got water.

I asked the planners to recommend to the County Commissioners that we be allowed to extend the adjacent 10 acre zoning in 40 acre blocks to the east and south of us into our block so that we could split our property into two lots. We received permission from all our neighbors to do this; they felt it was only fair since we had owned our property for 28 years and their lots were all 5 acres.

The 5 vote planning dept. Docket committee did not recommend it (no placement on the "Docket"), and told us to resubmit for the following year as they were doing a study of the "viability" of agricultural zoning in Clark County. However, they also told me in a personal verbal meeting that if we wanted any "guarantee" that our case would in fact be heard by the commissioners, and not squashed by the planning dept. preliminarily, we should pay them $18,000 so they could do a formal study. (My lack of education hasn't hurt me none; I can still read the writing on the wall)

So we sold our property, last year, in one 23 acre piece.

I understand that many of the planners in Clark County first plyed their trade in Oregon. If this is true it is no surprise to me.

I could write more, but I think this is probably enough for a comparison and contrast with Mr. Hines' case. What do you think?

Unlike Propertyrightslover, Tom, you have sensible questions to ask. I cannot answer your question fully, but let me take a stab.

There are two principles that are the foundation for my response: the value of both zoning and comprehensive planning. Both lie at the root of this discussion, or any discussion of Measure 37. If someone wishes to persuade me of any error I may have about Measure 37, they have to begin with these two principles.

Some might argue that I hold these values as a matter of faith, and have. They err. These two concepts are fundamental to to the social, economic, and political geography in which we as humans exist. It goes deeper; these concepts have an anthropological foundation as well - animals mark territory, we do the same, but with the advantage of our sentience.

Philosophy aside, land is designated by its use. If the land is within the concept of an Urban Growth Boundary, the land is also inventoried for future use. Living within a UGB means that eventually your land may be annexed, and in so being, may end up being rezoned. Depending upon where in the non-town UGB one lives, a reasonable property owner can fairly predict how his or her property will be zoned once annexed.

Land outside of a UGB is not so inventoried. It is zoned according to use - farm, forest, timber. There being no inventory, there is then no provision for the investment use of land. The investment use is how the land is to be used in the present. If one buys property for its future value, then the property owner takes on all of the risks that an investment involves.

If property values go up or go down because of decisions about how land is to be used, and you own the land for its future value, then the analogy I would offer is that of the stock market.

Many, if not most, of the arguments offered by M37 supporters focuses on the loss to the property owner and do not take into account the benefits that accrue as a result of zoning - like looking at only one side of a balance sheet.

Zoning and comprehensive plans provide predictability to all property owners within the zone. Measure 37 suppporters forget one of the important lessons of real estate - that the value of your property is a function of the value, use and care given to your neighbor's property. Measure 37 takes away one half of the equation.

That is why some of us refer to it as greed. They will disrupt the zoning for personal profit without regard to the impact their decisions have upon their neighbors. That action then brings into play my paragraphs above about why we have zoning in the first place. We have it to prevent anarchy; we have it to protect the health, safety, and welfare of the citizens.

The drafters of 37 deliberately, I think, left out the concept of public welfare when they drafted Section (3)(B) of the initiative.

Dear Hines sight,

There is one item (among the many errors in the Governors depiction) of the "fix" for Measure thirty seven legislation that I would correct for you.

There was a time, decades ago. that "high value farmland" refered to Class I and Classs II soils or those lands normally associated with the Willamette Valley. However, through changes in the statutes high value farmland includes class I, II, III, IV, V soils and "wasteland".. wasteland being lands incapable of producing row crops or livestock...

When the definition of a term is changed but the public is not informed of that Change it is Deception in Action.

What high value farm land now means is all private land in Oregonian that is not classified as High value forest land. The two comprise all land not inside a UGB.

Through the facade of Land preservation..hundreds and thousands of Oregon Farm residents have been forced off their land. Because their children are not allowed to build a home on the property owned by their parents they leave the farm to live elsewhere and seek employment in Non-farming professions. Subsequently their parents are forced to follow them as there is no one to care for them in their aging years. Their farmland is gobbled up for use as Equestrian Estates, Polo fields and Corporate Farms, Million dollar homes are built where once modest families lived and of course real estaters offer "tennant farmers" to keep those fields in shape.

The Thirty seven re-write sends us straight back to pre-thirty seven and no ones Home is safe from the long arm of the Governmentits subsequent confiscation of private property through "new SpeaK" or "New Definitions"



"What high value farm land now means is all private land in Oregonian that is not classified as High value forest land. The two comprise all land not inside a UGB."

BE, that is not correct. The bill clearly sets out the specific soils that are high value.

"Through the facade of Land preservation..hundreds and thousands of Oregon Farm residents have been forced off their land. Because their children are not allowed to build a home on the property owned by their parents they leave the farm to live elsewhere and seek employment in Non-farming professions. Subsequently their parents are forced to follow them as there is no one to care for them in their aging years. Their farmland is gobbled up for use as Equestrian Estates, Polo fields and Corporate Farms, Million dollar homes are built where once modest families lived and of course real estaters offer "tennant farmers" to keep those fields in shape."

Respectfully, the ballot measure will allow what you lament is not possible now.

We who opposed Measure 37 did so for the very reasons you state: "Their farmland is gobbled up for use as Equestrian Estates, Polo fields and Corporate Farms, Million dollar homes are built where once modest families lived and of course real estaters offer "tennant farmers" to keep those fields in shape."

Please, please read the bill and please be skeptical of what OIA tells you the bill "says." Read the arguments for Measure 37 that were in the voters pamphlet ( http://www.sos.state.or.us/elections/nov22004/guide/meas/m37_fav.html ) and compare what advocates wanted with what the ballot measure provides. It does what the proponents wanted and, it provides for transferability, which Measure 37 fails to do.

It is arguable that Measure 49 will actually provide a fast-track for anyone except maybe DLCD in their approach to processing claims. However what is pretty clear is that many land owners who are in their 70s 80s and 90s filed measure 37 claims in good faith, spent thousands of dollars out of their retirement because they read the law and it ENTITLED them to do so. What Measure 49 does is STOP them from doing what they have been entitled to do for almost 3 years and make them either go back and reapply for a new waiver with much more difficult criteria or drop the process entirely.

I'll be honest, I want to believe that Measure 49 is a good compromise however I know at least 3 people with valid Measure 37 claims who are simply trying to invest into their retirement and do what the law entitled them to do with their land. They will most likely be blocked by Measure 49. The honest truth is these folks are not in ground water limited areas, are not on high-value farmland and are requesting 10-20 2+acre parcels in areas where this is pretty typical. Why should we vote in a measure that will again take away land use rights from our most deserving Oregonians?

Let's do the prudent thing and demand that our legislators go back and provide honest fixes to Measure 37 where inadequacies exist--like ground water limited areas and possibly other areas where environmental stewardship is required.

fixafix, the people you mentioned will get up to 10 home sites under Measure 49. That's eminently fair. Remember: when you invest in real estate, it's risky business -- like all investing.

There's no reason why government should guarantee real estate investments when it doesn't guarantee stock, bond, commodity, or other sorts of investments.

Measure 49 distinguishes, as it should, between those who bought land to either live on, or to put a few houses on, and those who bought land with a hope to make a lot of money.

Sorry, but just as many people lose money in the stock market when government rules or regulations change, so do people lose money in the real estate market.

It's called capitalism. The free market.

Verify your Comment

Previewing your Comment

This is only a preview. Your comment has not yet been posted.

Your comment could not be posted. Error type:
Your comment has been saved. Comments are moderated and will not appear until approved by the author. Post another comment

The letters and numbers you entered did not match the image. Please try again.

As a final step before posting your comment, enter the letters and numbers you see in the image below. This prevents automated programs from posting comments.

Having trouble reading this image? View an alternate.


Post a comment

Comments are moderated, and will not appear until the author has approved them.

Your Information

(Name is required. Email address will not be displayed with the comment.)

Strange Up Salem

Welcome to HinesSight

  • Salem Political Snark
    My local political rants are now made on this badass blog. Check it out. Dirty politics, outrageous actions, sleaze, backroom deals — we’re on it. 

  • Twitter with me
    Join Twitter and follow my tweets about whatever.
  • Church of the Churchless
    Visit my other weblog, Church of the Churchless, where the gospel of spiritual independence is preached.

  • Welcome to HinesSight. If this is your first visit, click on "About this site--start here" in the Categories section below.