Measure 37 has brought Oregon a lot of bad news since this initiative was foisted on voters under false pretenses in 2004.
Oregonians thought they were allowing ma and pa to build a dream house on land that got rezoned after they purchased it. Instead, Measure 37 has allowed large subdivisions to sprout on irreplaceable farm and forest land.
With the vote on Measure 49 (a much-needed Measure 37 fix) coming up on November 6, developers with Measure 37 claims are rushing ahead with construction so they can claim they're vested by the time voters say Yes to Measure 49.
A recent article in the Portland Oregonian, "Bulldozers roll to outrace vote," talks about this unseemly rush to pave over farm and forest land before Measure 49 limits subdivisions to a maximum of ten homes.
Unseemly, because Measure 37 advocates like to talk about "respecting the will of the people." They say that Oregonians voted for Measure 37, so now it should be set in stone.
What they aren't telling you is that prior to 2004, Oregonians voted directly or by proxy six times to preserve SB 100 – the foundation of this state's pioneering land use laws. So Measure 37 (and its predecessor, Measure 7) didn't respect the will of the people.
And neither are the Measure 37 subdivision developers who are desperately trying to thwart the will of Oregon voters – who are probably going to approve Measure 49.
Voter's Pamphlets have been mailed out (check out my argument in favor on page 30). Within a couple of weeks ballots will begin to be sent in via Oregon's vote by mail system.
Sometimes illegally, as reported by the Salem Statesman Journal on September 27.
Leroy Laack, Greg Eide, and the other owners of a 125 acre, 42 lot Measure 37 subdivision adjacent to our neighborhood want to get vested so badly they started to build roads without either a Marion County Major Construction Permit or a Department of Environmental Quality 1200-C erosion control permit.
The new Yes on 49 brochure features a photo of the illegal work taken by me. Like I said before, the Yes on 49 campaign should send Laack a thank-you note for showing so clearly why Measure 49 is needed.
Fortunately, there's little chance that a court will consider this subdivision to be vested. "Good faith" is a prime criterion for the common law on vesting, as discussed by attorney Ralph Bloemers in an excellent memo on the subject.
When you start construction without required permits about six weeks before Oregonians are likely to change the state's land use laws, that's bad faith.
And also a bad business decision, because most of that construction work is going to be money down the drain. But, hey, people have the right to make bad business decisions. They just shouldn't expect government to bail them out when they make them.
Recently I talked with a neighbor who lives across the street from the subdivision. Laack bought the land in 1971, and the neighbor has lived there longer than that. He recalled that Laack had several years to start a subdivision, since SB 100 passed in 1973.
But he told me that Laack decided to wait a while, because lots on another nearby subdivision (Spring Lake Estates, where I live) weren't selling very fast.
This turned out to be a bad decision, because the land was rezoned EFU (exclusive farm use) after SB 100 went into effect.
Now, Measure 37 allows the clock to be rolled back for those who bought property for investment purposes and didn't make as much money as they expected because of a change in government policies.
That's crazy. Measure 37 shouldn't be a guarantee to get rich. In business, you've got to expect change. Of all sorts.
Here's a closed Payday Loan store on State Street in Salem. This year the Oregon legislature prohibited payday loan businesses from charging more than 36% annual interest, way down from the 300+% they'd been screwing customers out of.
So now there's hardly any Payday Loan stores left. There was no call to compensate them for a government regulation that reduced the value of their business. Why should real estate investors be treated any differently?
Measure 49 still gives special privileges to real estate investment, compared to others forms of investing. But it's much fairer than Measure 37.