Measure 49 is the law of our land—deal with it

It'd be amusing, if the issues weren't so serious, how Measure 37 supporters are acting so offended because Oregonians approved Measure 49 last November.

Oh my god! It's unfair! The voters changed Oregon's land use laws!

Cry me a river. But don't expect me to feel sorry for you. Don't you see how hypocritical all this bemoaning is?

Many thousands of Oregonians, including neighbors of ours, figured that when they bought land to build a house the zoning of surrounding acreages wouldn't be changed willy-nilly.

For example, if a large tract of farm land was next door, they expected that it would stay as EFU (exclusive farm use) unless an open and fair rezoning process was followed.

But along came Measure 37 in 2004. Now there was a special privileged class of landowners: people who could ignore land use laws because they owned property before the laws went into effect.

This was like allowing those who owned a car before a lower speed limit went into effect to drive as fast as before, while everybody else had to obey the new law.

When the speeders started to have lots of crashes, you'd expect there would be a push to have all drivers follow the same rules, by and large.

And that's what happened with Measure 49.

It went a long way toward restoring fairness to Oregon's land use system. Now only three home sites can be on a Measure 37 claim that consists of farm, forest, or groundwater limited land.

Neighbors of the claim have had their property rights restored, because now there's a balanced process to guide development instead of giving free rein to large subdivisions to pave over irreplaceable resource land.

Change happens. Democracy happens. The same people complaining about the changes Measure 49 has brought about were happy when Measure 37's changes were approved.

Come on, guys. You can't say "we don't want to be bound by Measure 49" when you were pleased to follow Measure 37. A law is a law. Deal with it.

An Albany Democrat Herald editorial reflects this ridiculous illogic.

During its February session, the legislature should make an effort to repair the injustice created by the passage of Measure 49, at least where it affects private individuals.

These are the people who assumed that Measure 37 on land-use claims, passed in 2004, was the law, especially since the Supreme Court upheld it in 2006, and who therefore filed applications and went through a lengthy process to claim the waivers the measure allowed.

Earth to Democrat Herald: After 1973 people assumed that SB 100, which established Oregon's pioneering land use system, was the law. There were several attempts to change it. They failed. It was still the law.

Then Measure 37 came along and the law changed. Now, Measure 49 has changed the law again. In a democracy you shouldn't expect that a law will stay the same forever.

Here's some testimony along this line that I presented to the legislature's Land Use Fairness Committee last year. I make wonderful sense.

Measure 37 shouldn’t be a guarantee to get rich

(Written version of oral testimony presented to the Joint Committee on Land Use Fairness on Tuesday, February 6, 2007.)

Expectations.

When we moved into our homes, me and my rural neighbors in the south Salem hills never expected that our wells might go dry because of a 217 acre Measure 37 subdivision that the claimant hopes to build on farmland that is designated “groundwater limited.”

We also expected that any changes to the zoning of EFU (exclusive farm use) land would occur through an orderly, fair, and open process. Measure 37 dashed both expectations.

Absent Measure 37, the subdivision proposed by Leroy Laack would need to receive a conditional use permit and have a ten acre minimum lot size. He initially wanted lots averaging two to three acres, even though the property is in an area where water experts say five acres is needed to support a well.

At the moment Marion County is holding Laack to a five acre minimum. That’s good, but the Keep Our Water Safe Committee formed by concerned residents shouldn’t have had to spend $13,000 and countless hours fighting a Measure 37 subdivision that endangers our groundwater.

Leroy Laack also had an expectation: to make lots of money from his property investment. Not to live on that land, not to become our neighbor. But to reap as much profit as possible from his investment.

There’s nothing wrong with making money. But there are no guarantees in investing. It’s risky. Part of that risk involves government decisions that can change the value of an asset. This happens all of the time, with all sorts of investments.

Bond prices rise and fall when the Federal Reserve changes interest rates, or the amount of government borrowing to finance deficits changes. Oil futures are affected by foreign policies affecting the Middle East. Investors in health care stocks have to watch Medicare and Medicaid reimbursement rates.

Here’s a personal example: I owned some limited partnerships prior to passage of the Tax Reform Act of 1986. A financial planner had urged me to buy them for their tax benefits. Those benefits largely disappeared after 1986.

I didn’t cry, “Unfair! This is a government taking! Rules were changed in the middle of my investment game. Either I should be compensated for the money that I’ve lost, or the Tax Reform Act should be waived for me because I bought my limited partnerships when other tax laws were in effect.”

I never ever thought of this. I realized that investing is risky. Situations change. As they do, the value of an investment rises and falls. If you want a sure return on your money, keep it in a bank account.

I hear talk about Measure 37 restoring “constitutional rights.” Huh? The Constitution doesn’t guarantee that you’ll make money on a real estate investment. It doesn’t guarantee that laws won’t change during the time you own a piece of property. Yet Measure 37 is predicated on the assumption that if the value of property has been reduced by government action, you’re entitled to be compensated.

That’s ridiculous. Most people I’ve talked to about Measure 37 recognize this. They make a distinction between someone whose primary motivation is to live on their land, versus someone whose sole desire is to make money from their land.

A single home on a Measure 37 claim, no problem. A large subdivision on a Measure 37 claim, no way. In between a single home and a subdivision—that’s where the Land Use Fairness Committee will have to strike a balance.

My neighbors and I are very much in favor of SB 505. Philosophically it’s in tune with my basic point: there’s no reason why people who buy property for investment purposes should be protected from government actions that reduce the value of what they own.

Speedily remove restrictions preventing people from building a single home on their land. But put a hold on large subdivisions that are likely to cause irreparable harm to surrounding property owners.

Again, there’s a big difference between wanting to live on land, and wanting to make money from land. Real estate investment shouldn’t get special treatment under Measure 37 compared to other sorts of investments.

Governmental actions and laws affect the value of many kinds of assets. There’s no reason why property owners whose primary aim is to make money from their land should be able to roll back the clock on government decisions they don’t like.

If this is done for real estate investors, why not do it for all investors? I would have loved to be able to have the 1986 Tax Reform Act waived for me because it reduced the value of the limited partnerships that I owned before that law was passed.

Obviously that would have been absurd. Just as obviously, Measure 37 shouldn’t be a guarantee to get rich from a real estate investment.

Comments

[Samuel John Klein]

Well, those folks are real big fans of the "Will of the Voter" until Will doesn't give them what they think they ought to have.

Then it's "it's so unfair, people just don't understand".

We understand. We understand all too well. It's the people who voted against M37 at first and who voted for M49 who see things clearly.

If the "Will of the Voter" can turn a bad idea into a good one (M37) then it'd be only fair to conclude that Will can confirm the validity of a good idea (M49)

[Rain]

Good piece and true. It seems it is so often environmental standards vs making money in this country and it takes a lot to make people see that the environment in which they live (reasonably planned development being part of it) matters more than the dollars that can't actually buy the things that matter most.

[Debbie]

Brian, you all forget....we were here long before you. We are saying the same as you.

"Many thousands of Oregonians, including neighbors of ours, figured that when they bought land to build a house the zoning of surrounding acreages wouldn't be changed willy-nilly."

It's the same mantra. It isn't fair to change it after it's bought. We bought and your 'friends' changed it. That's not fair.

BTW...weeks out on the DLCD M-49 letters...I'm still waiting for mine. I'll bet the date on my letter will be long before it arrives.