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August 02, 2007


At its core, Oregonians In Action is a group of anti-government libertarians. Their goal is to end land use. Measure 37 does just that. If the Measure does what you want, what purpose does compromise serve? We should raise this issue at every opportunity and then use that opportunity to force them to state what it is that they really believe.

Land use and zoning are two separate, but related, concepts. Zoning appeared first, and was followed later by the concept of comprehensive plans. Proponents will defend zoning intended to protect health and safety. Zoning by its intent is about health, safety, and welfare; our opponents strenuously deny this. Comprehensive plans are the framework in which zoning takes place in order to give order to zoning, to avoid idiosyncrasies and the appearance of arbitrary or capricious decision-making. The Hines’ know all about this given their experience.

Our debates on this front should focus on getting our opponents to tell us what they believe about zoning and comprehensive planning. Opponents will argue that planning should be a local function with no statewide oversight. This has been their position for the past thirty years. Oregon is Oregon and counties are administrative districts. We are Oregonians first, and residents of Marion County, second, at best. Local decisions on land use have statewide ramifications. The purpose of statewide planning is to avoid the Balkanization that Measure 37 proponents offer as about their only compromise.

Comprehensive planning and zoning are part of the fabric of being a community. By focusing on the community, you can expose the anarchy of their libertarianism.

Measure 37’s focus on the relationship between regulation and property values compromises the ability of zoning jurisdictions to set public policy affecting the health and safety of its citizens. For urban dwellers, zoning is a fact of life, like sidewalks for pedestrians, streets for automobiles, industry here, commerce there, and residential located where it is most feasible. No one gives a second thought to restrictions on business in residential areas or factories in town centers. Zoning is, or ought to be. The more complex a process, the more it is subject to manipulation, and it is this manipulation that contributed to the passage of Measure 37.

Measure 37’s backers seek to reduce land use decisions to the lowest possible common denominator – the County. This is not out of any love for counties, but because counties are easier to control than is the State – unless it is accomplished through their ability to manipulate the initiative process.

The premise of their value system is that land is yours. Yours in the same way that your auto is yours, that your shoes are yours. What you do with your land is of no more concern to your neighbors than what you do with your auto, or your shoes.

By requiring the jurisdiction to compensate landowners when regulations diminish the value of property, the ability to zone or to plan is stopped, frozen, sealed in amber. No jurisdiction will attempt to zone or plan without keeping an eye on the impact zoning would have on the affected properties.

Measure 37 proponents use an analogy about property. Property is like a bundle of sticks. The sticks analogy refers to leasing land, mineral rights, taxation, etc. What the analogy does not address is that some of that bundle of sticks is longer than others. Some of those sticks extend beyond the property line. You hold one end of the stick, your neighbor holds the other. Measure 37 broke those “trans-property” sticks and we have spent the past three years beating each other over the head with them.

By making public policy decisions with respect to land use not unlike bond measures for building roads, sewers, or schools, Measure 37 has taken the community out of the community. It is now all about you versus the state. The problem that is not so much the failure of a Legislature fifteen session ago to compensate landowners as it is the very concept of compensation. We know that this is a divisive issue, but from reading of the measure, it all turns on compensation for loss. The definition of loss is framed in terms of looking at one side of a balance sheet while ignoring the other. There is an a priori assumption that regulation results in loss of value, and this has been used to create the fiction of regulatory takings.

I want to "do with my property, that which I could have when I purchaced it".
Unfortunatly, measure 37 if left unchanged WILL deny me that right.
I wonder how many farmers there are, that have their livelihood threatened by surrounding M37 claims?
And how about "Settled Law"?
I bought my land to run a farm in an area of specialty agriculture that had been in place for many, many years.
Our EFU zoning is settled law that gave us confidence in our farming investments.
I want to do "What ever I want to do on my land".
And what I want to do is farm. My land is EFU. I am on the right side of all but the M37 moneychangers.
M37, which I think I voted FOR, may severely restrict my ability to "do what I could have when I purchaced my property".
Thank you Brian and Richard for all of your hard work.
Harry Vanderpool

Mr. Vanderpool, I am afraid that Oregon's initiative process, as practiced over the past two decades, means there is really no such thing as settled law.

They convinced us that regulations restricted our freedom. That is wrong. Land use regulations protected us from our neighbors and allowed us therefore to live with our neighbors.

“Good fences make good neighbors.” Frost's poem describes your situation.

He is all pine and I am apple-orchard.
My apple trees will never get across
And eat the cones under his pines, I tell him.
He only says, "Good fences make good neighbors."

Zoning, like good fences, preserves amity among community members by regulating what one can do with land without bringing harm to self, neighbors, or community.

"Zoning, like good fences, preserves amity among community members by regulating what one can do with land without bringing harm to self, neighbors, or community..."???

All the EFU/FF zoning does is protect the resident landowner from the non-resident landowner. Often the non-resident owner has owned their land long before their 'neighbor' and once this city person bought their new little "farm" aka rural lifestyle...they start using the rules against their 'neighbor'.

Wake up and smell the coffee...you can't screw your neighbor (often hiding behind the skirts of 1,000 friends) and expect there to be no fight.

The complaint is "this was how it was zoned when we bought our place and we don't like the changes". Well, welcome to the side of M37 supporters. We bought; they (the state and counties of Oregon) lied to us about what they were doing and changed the zonings and what could be done. If you weren't around then, you don't understand the lies that were given out.

Was it fair? No. Just as you're saying it's not fair.

And yes, there were people who were planning subdivisions, some had approval and plats and recorded roads...my old neighbors for example. Of course, they don't live there anymore because of some new arrival that used the land use laws against them...and not for the subdivision they'd planned but for a single home they wanted for their daughter.

Someone from the city bought their old place, tore it down and built his farmansion so he could enjoy the rural lifestyle on his EFU land...that he doesn't farm...of course you can't farm 20 acres or less...Although my perspective is that of an actual farmer.

I grew up on a farm; we made our living from our land. We didn't retire to a small acreage or have a job in town to pay the bills...we were farmers.

Is any of this fair? I doubt it. I also doubt that M49 is fair. I don't see a way to make any of it fair. 49 doesn't allow a landowner to build a house without lawsuits.

You are just beginning to wade into this fight. I've been to court, LUBA, etc. 1,000 friends and their ilk run a person to ground. It's appeal after appeal until the poor person is out of funds and can't fight anymore. Is that fair?

The state of Oregon knew when drafting SB 100 that they were about to screw a large group of Oregonians and they didn't care. Was that fair? What they did could have been done differently, fairly and with honor and integrity. Instead it was done with great arrogance and disrespect.

M49 has been generated the same way and buried deep within lies a screw of great magnitude.

Love your rhetoric. Try describing just how that "screw" works.

This statement is utterly false and without substance: "49 doesn't allow a landowner to build a house without lawsuits."

Fool me once, shame on me; fool me twice, shame on you. Debbie, that is a shameless mistruth.

Debbie, we and our neighbors have been to LUBA and other land use appeals too. We've spent tens of thousands of dollars fighting to protect our wells and commonly owned lake from a Measure 37 claimant and others who think they have the right to "take" the value of our properties (how much is a rural home worth without water? not much)

So let's agree that there is unfairness on both sides. I'll agree that SB 100 and Oregon's land use system was too rigid before Measure 37, tilted too far in favor of the broad public interest and against private landowners.

But I hope you'll agree that Measure 37 tilted the balance too far in the other direction. Now the rights of people already living in an area are being trashed in favor of would-be subdivision builders.

Oregon has to come back to the middle. And that's what Measure 49 does. It's better thought of as an implementation of Measure 37 than of a repeal of it, as Oregonians in Action falsely claims.

Now anyone who wants more than three homes will have to prove that land use rules have actually led to a loss of value. Measure 37 is about compensating people for a loss of value due to a regulation. What's wrong with requiring claimants to show how much they've lost, rather than just making something up?

Also, now claimants will be able to transfer their development rights. And a Measure 37 right can be inherited by a spouse. There's much that responsible Measure 37 claimants should like in Measure 49.

The only people who won't like Measure 49 are those who want to get rich off of hurting their neighbors. I don't have much sympathy for these folks, which includes the claimants who are trying to build a large subdivision near us on groundwater limited farmland.

Development is fine. But not when it sucks wells and springs dry. Measure 49 will go a long way toward preventing this from happening. It'll help restore fairness to Oregon's land use system.

Richard...I didn't say without lawsuits, please read it again. M49 give anyone...repeat anyone the right to sue you because of your right to build; plus they can force you to pay their attorney fees but you can’t recoup yours from them if you win and even if they continually loose the suit, they can continue to appeal and appeal…first screw.

Brian…I understand about the wells. Correct me if I’m wrong, and I could be, as I’ve never gone that far; (I know you can’t get a loan to build if you can’t prove you have water) it seems to me the county has regulations about that too. Also just as a point to argue, what makes the resident land owner feel they have exclusive rights to the water that’s available and the non-resident land owner has none? I am a bit confused as to how someone can ‘take’ the commonly owned lake? Is it your fear that more wells will drain the lake?

What do you think of the people who live on acreage property and then water yards and gardens? If they’re on EFU/FF then they need to have the right to irrigate, which comes from the county, not just the fact they have a well. These rural lifestyle people are sucking the ground water and it’s not for farming. If they have a small vegi garden, grow flowers, herbs, fruits, etc. for their use, then they are taking water that isn’t their right. In farming communities that is called irrigating and it requires a permit. Just because a house has a well doesn’t mean they get to use the water for the yards. Tell that to the farmansion, with their beautiful landscaping including pond and fountains, six-car detached garage and tennis court….

“…an area are being trashed in favor of would-be subdivision builders.” Okay, we all knew there would be a few of this type of development going on. I know a family that is trying to do that on a small part of land that’s been in their family for three generations. The land is zoned EFU and they’ve never even been able to get a plow through it.

I think part of the problem is that everything outside the UGB was classed farm or forest, whether it really was that or not. I know in the 70’s Polk County re-zoned all acreage residential property to farm/forest, no public hearing or anything… just an ‘emergency meeting for the health and safety’ of the citizens of Polk County. Over the decades the kids grew up hearing about all our ‘farm’ land. Yep, I’m an old bat… They don’t understand that it’s not all farmable.

Also in the 70’s came the city folks looking for a rural lifestyle. I can’t tell you how many people have told me they have a farm only to find it’s just a small acreage home site with an alpaca, emu or horse. As a side thought, all counties have the ‘right to farm’ rule so non-farm homes have no right to complain about noise or smell or anything.

Showing a loss on one’s property is actually fairly easy unless you get incredibly anal about it. The state and county won’t show it until you try to follow the rules to build and are denied. I can show my property tax statement from 1997 showing one ‘real market value’ and the 1998 statement (after my last attempt to follow the rules) showing a more than 90% reduction in the ‘real market value’ of my property. When I called the county tax assessors office to find out why the value dropped I was told it was because “the land can’t be built on”. Which is weird considering it hasn’t been able to be built on since 1983.

Now you may feel that I still have that land and really didn’t loose anything. However, no one wanted to buy it when I offered it (meaning none of my neighbors) and then too, when I apply for a loan I’ve lost the equity the land had, which affects my ability to qualify for higher dollar amounts. So here I am with my little piece of land that none of the neighbors wanted to buy, I can’t build on it (could have when I first got it, although M37 hasn’t helped me because of the state’s interpretations) and I just get to pay taxes on it and beg someone to cut, bale and haul off the hay.

Ohhhh, I’m farming… not really, according to the state, “farming is for the intent and purpose of making a profit in money.” I don’t make a dime; I have to give the guy all the hay. I basically have a huge ‘yard’ that I have to get someone to mow for me. Isn’t that fun from an hour away? I could get better production off this land and make it useful but I need to live there to do it.

M49 doesn’t give me the right to build. It gives me more hurtles and more dead-ends. It just another stall, delay and deny set-up, provided by this state (see first paragraph)... just as their interpretations of M37 have stalled and delayed. I’m not looking to sub-divide. I simply want to build one house, without the tennis court etc. that the farmansion next door has. I want to make my land produce crops to make me money. I have a plan for it, one that would make me a decent contributor to the farming industry. It is a shame this state is so opposed to my doing that.

Debbie: there is nothing in 49 with respect to members of the community intervening to insure that development occurs in accordance with public policy.

You don't like 49. You need to tell me by citing page and line where it is you think 49 is harmful.

You can read it here:


You state:

"M49 doesn’t give me the right to build. It gives me more hurtles and more dead-ends. It just another stall, delay and deny set-up, provided by this state (see first paragraph)... just as their interpretations of M37 have stalled and delayed. I’m not looking to sub-divide. I simply want to build one house, without the tennis court etc. that the farmansion next door has. I want to make my land produce crops to make me money. I have a plan for it, one that would make me a decent contributor to the farming industry. It is a shame this state is so opposed to my doing that."

Show me, page and line, where you cannot do what it is that you want to do.

Just a quick response to Brian's comment about limited ground water. Do you have any idea how much ground water a commercial vegetable farm uses each year? You might want to compare that to the amount of water that would be used by a patch of homes on, say, two acre lots (which I believe is the minimum lot size for most rural residential developments). You and your neighbors would actually be in better shape water-wise if your neighbors had 2 acre lawns instead of 100-200 acre corn fields.

Farmer John, the other farmland along Liberty Road is mostly growing Christmas trees or grapes. Neither require irrigation, so far as I know.

So actually we'd be much better off with the subdivison acreage as farmland, rather than 43 wells.

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