HinesSight

Call Oregonians in Action now – here’s why

Wow, a first. I just phoned Oregonians in Action at 503-620-0258, a group that I despise.

But I stifled my urge to barf when I heard their answering machine fire up this evening, because I wanted to urge them to comply with a request made today by Robert Klonoff, dean of the School of Law at Lewis & Clark College.

Klonoff is deeply irked that Oregonians in Action used the school's name in a mailing sent by James Huffman, a law school professor.

In a press release issued today, Klonoff calls on OIA to send a letter of correction to all households that received the previous mailing to clarify that the anti-Measure 49 message didn't represent the position of the law school.

Klonoff lays it on the duplicitous OIA'ers.

Fair debate requires that all participants represent their ideas with integrity and sincerity. The misuse of our name by Oregonians in Action violates that fundamental principle. It is deeply troublesome that the group would mislead voters in an attempt to garner support on this controversial issue. They must correct the record immediately.

So I urge you to pick up a phone, dial 503-620-0258, and tell Oregonians in Action to get cracking on the correction letter.

I told OIA that even though their reputation has sunk about as low as it could possibly go, given all the lies their campaign has been caught making, they might be able to rise a bit above garbage pit level if they expeditiously send out the mea culpa letter.

[Next morning update: A neighbor just told me about calling OIA and being connected with Dave Hunnicutt, the head honcho. Her daughter is a first year law student at Lewis & Clark. She'd read the press release from Dean Klonoff, where he demands that OIA send out a correction letter to everyone who got the first misleading one.

She explains her concern to Hunnicutt. Soon he's interrupting and talking over her. He says, "I've talked with the dean." Well, obviously not recently. Then Hunnicutt says "You're wasting my time" and hangs up on her. Typical OIA modus operandi. Act like a jerk, lie and mislead people, mess with the facts, don't face your own B.S.]

Terrific Measure 49 video makes you laugh and cry

If you're an Oregon voter who isn't sure about how to vote on Measure 49, you need to spend five and a half minutes and watch this "Fib or Fraud" video.

Congratulations to Dave Adams of "Fix It or Nix It" sign fame, Adam Klugman, and the Progressive Media Agency for creating a marvelous means of showing the lies that Measure 37 claimants spout when their lust to build a large subdivision overrides honesty and ethics.

Charlie Hoff, a Tualatin land speculator, should be hugely embarassed by this video. Assuming he's got any shame left in his "pave it over with deception and greed" brain.

Watch. If you're like me, you'll feel like laughing and crying. And voting "yes" on Measure 49.

Salem’s newspaper gets an “F” in journalism ethics

In the past two days I've learned a lot about the Salem Statesman Journal's concern for journalism ethics. Bottom line is, they couldn't care less.

My ethical eyebrows got raised when I noticed that a draft editorial about Oregon's Measure 49 contained absolutely zero information about what this soon-to-be-voted-on ballot measure does.

Yet the editorial endorsement was "no." Unbelievable.

How can a newspaper run a content-free editorial about an important statewide vote? How is it possible to say you're against a piece of legislation without describing it?

After exchanging lots of emails with the editorial page editor, Dick Hughes (who wrote the editorial), and Brian Priester, the newspaper's president and publisher, I've concluded that both of these guys are clueless about what it means to be a responsible journalist.

Even I, who was a journalism major at San Jose State College back in 1967 for just a semester, knows more about the ethics of editorial writing than Hughes and Priester.

I sent them a link to the Basic Statement of Principles of the National Conference of Editorial Writers. I pointed out that the first two principles are:

1. The editorial writer should present facts honestly and fully. It is dishonest to base an editorial on half-truth. The writer should never knowingly mislead the reader, misrepresent a situation, or place any person in a false light. No consequential errors should go uncorrected.

2. The editorial writer should draw fair conclusions from the stated facts basing them upon the weight of evidence and upon the writer's considered concept of the public good.

Note that "facts" are mentioned twice. Opinion has to be based on facts. Yet when I told Hughes about the significant factual errors in his editorial he emailed me:

Disagree. It's clearly Opinion. It's an editorial. It's biased. It's opinion. IT'S NOT A NEWS STORY.

Well, my first comment is that you shouldn't use all caps. Bad form. My second comment is what I told Hughes: read what the National Conference of Editorial Writers considers to be ethical editorial writing.

It sure isn't what Dick Hughes wrote. Because one of the most egregious factual errors in his Measure 49 editorial is this statement:

In fact, the only people who may benefit from Measure 49 are the lobbyists, interest groups and lawyers on either side.

This is obviously wrong. It shows that Hughes either knows nothing about Measure 49, or he's choosing to ignore the facts so he can make a predetermined recommendation to vote "no" without looking like more of an idiot than he already does.

Because if Hughes had said, "We're recommending you vote 'no' because we favor large subdivisions on farm, forest, and groundwater limited land. We don't want Measure 37 claimants to have transferability rights that will allow buyers of their property to develop it themselves. We're opposed to letting spouses of Measure 37 claimants be able to inherit the waiver. We favor allowing industrial and commercial uses on Oregon's most valuable farmland" – readers of the Statesman Journal would have said to themselves Why the @#$$%&! Is the newspaper taking this position?

This is why I strenuously argued that the editorial violated both of the ethical principles above.

It took an underhanded duplicitous approach to its "no" recommendation, failing to mention even one thing that Measure 49 would do if passed, and failing to mention any of the negative effects that Measure 37 will bring Oregon if left unfixed.

The National Conference of Editorial Writers says that fair conclusions have to be drawn from the stated facts. Yet Hughes presented no facts, none, to support his statement that lobbyists, interest groups, and lawyers may be the only people to benefit from Measure 49.

That's patently false. And Hughes got plenty of emails that informed him of that fact in response to his request for comments and suggestions on the draft editorial, as I reported yesterday.

Today I heard back from Brian Priester, president and publisher of the Statesman Journal. It's obvious that he, like Hughes, doesn't understand that an editorial is supposed to be based on more than personal opinion – which easily shades into crazy-ass fantasy, as was the case with Hughes' piece.

I could say, "Vote no on Measure 49 because it lets government bureaucrats come into your home and kill your dog or cat." Oh my god, that's shocking!

Well, it should be. Because I just made it up. Just like Hughes made up the sentence about Measure 49 not benefitting the general public.

This afternoon I heard from publisher Brian Priester. He wrote me:

The one you quoted as most egregious – "In fact, the only people who may benefit from Measure 49 are the lobbyists, interest groups and lawyers on either side," strikes me as 1) clearly opinion (by the use of the word "may" as opposed to "will") and 2) an accurate characterization and reasonable conclusion based on the information at our disposal.

Since it speculates on future events, I don't see how it could be construed as a factual error. At most, one could argue we drew the wrong conclusion from the arguments presented to us - and I am sure readers will argue that point in letters to the editor. So, no I don't consider this a "factual error."

Um, Mr. Priester, didn't you read the principle #2 that I sent you in an earlier email? To repeat:

2. The editorial writer should draw fair conclusions from the stated facts basing them upon the weight of evidence and upon the writer's considered concept of the public good.

Sure, it's the Oregonians in Action and Salem Chamber of Commerce party line that technical problems with the wording of Measure 49 won't allow any of the law's stated benefits to go into effect. But nobody believes this other than the most extreme Measure 37 fanatics.

Measure 49 was carefully reviewed by legislative counsel before being sent to the voters, which means that it will accomplish what it says it will do.

So when Priester says that Hughes' editorial is factual and draws correct conclusions, that's hogwash.

I've been a Statesman Journal subscriber for over thirty years and have always considered the newspaper to be a valuable asset to the Salem community.

Now that it's owned and run by Gannett, it sure seems like the corporate culture has changed. There's an arrogance to Hughes and Priester that screams "We can do whatever we want, journalism ethics be damned, because we can."

That's sad. Salem deserves better.

Vote "yes" on Measure 49. Show Hughes and Priester that the citizens of Oregon know the difference between right and wrong, even if they don't.

Statesman Journal allows errors in Measure 49 editorial

You'd think that a major Oregon newspaper would want to correct factual errors when they're pointed out to them. But not the Salem Statesman Journal, which published a Measure 49 editorial today that is riddled with inaccuracies.

Yesterday I wrote about the draft editorial that was put up on the paper's editorial blog Friday evening. The editorial board said that the draft was "subject to change." They asked that comments and suggestions about this editorial be sent to the lead writer, Editorial Page Editor Dick Hughes.

And, oh boy, did Hughes did comments and suggestions. In a continuation to this post you'll find an email message that I sent to the editorial board today, describing what happened after I found the draft editorial at 9:30 pm Friday night via a Google News "Measure 37" alert.

The upshot was that Hughes got deluged with emails from people a while lot more knowledgeable about Measures 37 and 49 than he appears to be. Neighbors, friends, and other Oregon countrymen concerned about preserving this state's land use laws told Hughes the truth about Measure 49.

Some of the comments are on the Statesman Journal editorial blog. They're marvelous. Thoughtful, detailed, considered, passionate discussions of what passage of Measure 49 would mean for Oregon, and what a disaster it would be if Measure 37 is allowed to continue on unfixed.

State Rep. Brian Clem, who was on the legislature's Land Use Fairness Committee that referred Measure 49 to the voters, sent in an email that corrected inaccuracies in the draft editorial. So did Bob Stacey, executive director of 1000 Friends of Oregon. In part Stacey said:

The draft Measure 49 editorial posted last night is deeply disappointing, given the Statesman-Journal's long support for responsible land use planning. It also advances a series of arguments that don't support the editorial's conclusion. You should take the time to fix it, and change your recommendation to "yes."

…You say, incredibly, that "Oregon won't be devastated by letting Measure 37 run its course." You'd better look again at the maps. Or look at the photos of Measure 37 subdivisions under construction at www.yeson49.com. The parts of Oregon where farms and towns coexist today, thanks to land use planning, will indeed be devastated if this continues. That's why The Oregon Farm Bureau Federation--and the Marion, Polk and Yamhill County Farm Bureaus--have endorsed Measure 49. It's still not too late to amend your draft editorial and join them.

Dick Hughes and I, along with my wife, have been engaging in an extensive exchange of emails about how the comments to the draft editorial were responded to by the Statesman Journal. I appreciate Hughes' willingness to get into a back-and-forth with readers, but it's become distressingly clear that he doesn't understand what bothers us so much.

Sure, we're disappointed that the editorial didn't endorse a "yes" vote on Measure 49. But if good reasons had been offered up for a "no" recommendation, backed up by facts, we would have said to ourselves, "We don't agree, but the editorial board is entitled to its own opinion."

Instead, Hughes ignored virtually all of the emails he got that pointed out inaccuracies in both the factual foundation and conclusions of the draft editorial. This is what deeply bothers us: the Statesman Journal asked for feedback on the draft, which was open to changes, then turned a blind eye to the many substantive comments and suggestions sent to Hughes.

I've compared the draft and final versions of the editorial. Here are the differences I found:

--an "it's" became "it has"
--"overwhelmingly embrace Measure 37" became "embrace Measure 37 overwhelmingly"
--"laws" became "rules"
--"simply" became "only"
--an "Unfortunately" was added before "It doesn't repeal Measure 37"
--"2007" was omitted from "until the 2007 Legislature"
--"killed" became "cut" in describing legislative funding for the Big Look task force

Yet Hughes had the gall to say this in a prefatory comment to Rep. Clem's email message: "A variety of comments, including Clem's, helped us refine and clarify today's editorial."

Oh, whoopee. The biggest change was clarifying that the 2007 legislature "cut" funding for the Big Look task force rather than "killed" it.

Meanwhile misleading statements remained in the editorial. Many people pointed this out. In an email to Hughes I gave him my own take on some of the worst inaccuracies in the draft editorial (quoted at the beginning of each section).

--"By toying with the state's land use system instead of reforming it..." Measure 37 reformed Oregon's land use system, for the worse. Measure 49 fixes the worst flaws of the reform. This isn't "toying." That's demeaning to the 7,500 Measure 37 claimants and the many more thousands of Oregonians who are directly affected by those claims.

I'd like you to tell our neighbors on Liberty Road who have had to replace or deepen their wells, even without 42 more wells being drilled on the subdivision property, that limiting this Measure 37 claim to three home sites is "toying." Real people are living in the real world, with real wells that can go dry. They can't wait for Big Look to come up with recommendations that may or may not be enacted years in the future.

--"Measure 49 adds to that complexity." No, it simplifies it. Measure 37 was poorly written. Transferability of waivers, for example, isn't allowed under an AG's opinion, even though OIA thought they'd allowed for it. This shows, by the way, that the number of words in a piece of legislation doesn't equate to how clear it is. Measure 49 was reviewed and approved by legislative counsel to make sure it does what legislators wanted, which is more than Measure 37 does.

I can tell you that Measure 49 is a much simpler approach to protecting groundwater limited areas than the mishmash of county water ordinances that currently exists. Our neighborhood's Keep Our Water Safe committee has spent almost $30,000 on trying to get Marion County to enforce its own groundwater ordinance. Not many areas adjoining a Measure 37 claim that threatens their water supply are able to do that. Measure 49 gives them the protection they need (again, by limiting home sites to three) in a much simpler fashion.

--"In fact, the only people who may benefit from Measure 49 are the lobbyists, interest groups and lawyers on either side." This is completely and utterly wrong, beyond misleading. It's flat out wrong. My wife and I sat through most of the Land Use Fairness Committee hearings that produced Measure 49. We're completely familiar with the Measure. We know how it will affect our neighborhood and similar groundwater limited areas that have Measure 37 claims nearby.

Measure 49 will benefit property owners out here a lot. That's why you've been hearing from so many of them, like Don Dean, who lives next door to the Laack subdivision and is worried about his well going dry after 42 additional wells go in next door. An entirely justified fear, because independent water experts hired by Marion County have concluded as much.

I've already told you, as has my wife, how Measure 37 claimants will benefit from Measure 49 by getting transferability and inheritability of their waivers. So again: this statement is not only misleading, it is absolutely wrong.

--"Until then, Oregon won't be devastated by letting Measure 37 take its course." This is another inaccurate statement, unless by "Oregon" you mean the members of the SJ editorial board. Again, out in the real world, like here in south Salem, and in the orchards of the Hood River valley (to mention but a few places), Oregon indeed is going to be devastated.

I've heard Brian Clem speak about his family farm in the Hood River valley, and seen the map he holds up of the Measure 37 claims that essentially surround it. He says that it is virtually impossible to keep farming when subdivisions encircle a farm. This is why the Oregon Farm Bureau Federation supports Measure 49.

But Hughes merely sat at his computer most of the day yesterday, merrily ignoring the corrections to factual inaccuracies in the draft that kept pouring in to him, while getting testy when my wife suggested that the newspaper may have some subscriptions cancelled because of the editorial, and saying he was "torqued" when I told him there were misleading statements in the draft. Which, there were.

I've asked for two things from the editorial board: (1) the go ahead for me to write an opinion piece for the editorial page that discusses how the newspaper's process for soliciting feedback on draft editorials is seriously flawed, using the Measure 49 piece as an example, and (2) a meeting with the editorial board to discuss our concerns.

I'll end with my message to Hughes and the Statesman Journal editorial board. Hopefully they'll be open to improving their disastrously flawed system (or rather, non-system) for responding to comments and suggestions on draft editorials.

As I said in my message, a lot of people put in a lot of time and energy telling Hughes about the errors in his draft editorial. Journalistic ethics demands that you seriously consider those comments, not summarily dismiss them – which is what happened with the Measure 49 editorial.

Salem newspaper poised to publish gutless Measure 49 editorial

At 9:35 pm last night a Google News alert told me that the Salem Statesman Journal had put a draft Measure 49 editorial up on its blog. The editorial is scheduled to appear in the Sunday paper.

I immediately clicked on over and read one of the most misleading gutless editorials I've ever seen. And I've seen a lot.

This must be a first: a recommendation for a "no" vote on a ballot measure that doesn't mention a single thing the measure would do.

Dick Hughes, the lead writer for the editorial, doesn't get into the substance of Measure 49 at all. He's only concerned about process – how the measure is 13, 314 words long, how this is one more chapter in Oregon's long history of wrestling with land use issues, how he'd prefer that the Big Look effort propose reforms rather than Measure 49.

No meat (or tofu) to the editorial at all. It's a piece of fluff with zero relevance to the real issues Oregonians are facing after three years of Measure 37.

Should large subdivisions pave over irreplaceable farm, forest, and groundwater limited land? Should Measure 37 claimants be given transferability and inheritability of their waivers, thereby allowing them to develop their land and pass on a claim to heirs after they die? Should industrial and commercial uses be allowed on rural farmland?

We've alerted as many people as we could about this gutless editorial and urged them to send comments to Hughes and the Statesman Journal editorial board.

It's gutless because Hughes' "no" position implicitly favors all of the negative impacts of Measure 37, while rejecting all of the benefits that Measure 49 will bring both to Measure 37 claimants and Oregonians in general.

I've sent Hughes several email messages. So has my wife. Thus far he hasn't responded to any of our substantive comments.

And believe me, we've made a lot – as have many of our neighbors. It sure looks like the Statesman Journal knows next to nothing about Measure 49, because there's no sign that Hughes or anyone else at the newspaper understands the Measure 37 problems that 49 fixes, and why it will be a disaster to leave Measure 37 unchanged.

Here's my most recent message to Hughes. I make a lot of sense. The draft editorial doesn't. I encourage you to read this ridiculous attempt at editorializing and tell Dick Hughes and the editorial board what you think about it: [email protected] and [email protected] .

Dick, thanks for the replies. But here's one of my main gripes about your draft editorial: it doesn't say what Measure 49 will do. How the heck can you come out against something that you don't even describe?

I, like lots of other readers, am going to assume that you don't know anything about Measure 49, because all you do is criticize it in extremely broad generalities. That's terrible editorial writing, and horribly unfair to Measure 49.

So if you're going to endorse a "no" vote on 49, at least say this:

"We're opposed to giving claimants for 1-10 home sites transferability rights, so they can easily sell their lots to buyers who want to build a home. We're against allowing Measure 37 claimants to be able to pass their claim on to a spouse when they die.

We favor allowing large subdivisions on farm, forest, and groundwater limited land. We believe the best use of vineyard-ready acreages in the south Salem hills is to pave them over and make them into ranchettes. We like how Measure 37 allows gravel pits, mini-storage businesses, and other commercial uses on rural farmland. It's fine with us if farmers aren't able to continue to farm because they're surrounded by Measure 37 subdivisions."

That's what your draft editorial really say. Except you don't have the guts to say it. You have a fantasy that in couple of years, or whenever the Big Look process comes up with some recommendations, Oregon won't be drastically changed by Measure 37 developments.

You haven't heard Rep. Brian Clem say repeatedly, as I have, that this is Oregon's one chance at fixing the problems with Measure 37.

Again, what I'm most disappointed in, Dick, is that you aren't being straight with your readers. You're taking the easy way out by not describing what Measure 49 will do, and why you're against this (allowing transferability and inheritability of Measure 37 claims, restricting subdivisions on farm, forest, and groundwater limited land, and so on).

Come on. Stand up for what you believe. Support paving over Oregon and continuing to make it almost impossible for small Measure 37 claimants to develop their property.

Lastly, what's the point of your editorial blog, where you solicit feedback from readers, if you've already made your mind up? This is a farce. I suspect the editorial board isn't even going to seriously consider all of the comments in support of Measure 49 that you've gotten from readers in response to your blog post last night.

--Brian

Oh, the lies “Stop 49” is telling

If somebody lies in a political campaign, that's a sign of desperation. So hopefully the pack of lies being told by the Stop 49 spokespeople is an predictor that Oregon's Measure 49 will pass.

Oregonians don't like liars. Nobody does. And the brochure that came in our mail today from the Oregon Family Farm Association PAC is disgustingly full of outright lies.

Below you'll find the truth, as exposed by the Yes on 49 campaign.

I'll add to the truth pile by pointing out that the Oregon Family Farm Association has little or nothing to do with farmers. In 2006 this political action committee supported Oregon Ballot Measure 39, which dealt with eminent domain.

Eighty-two percent of the PAC's funding came from just seven donors: Loren Parks $200,000 (32.1%); Norman Brenden and Swanson Group, Inc. $60,250 (9.7%) each; A-Dec Dental Equipment and Seneca Sawmill Company $51,250 (8.2%) each; Hire Calling Public Affairs (Jeld-Wen) and Columbia Helicopters/Wes Lematta $43,750 (7.0%) each.

Hmmmm. Seemingly not a farmer among them. Looks like the Oregon Family Farm Association started telling lies as soon as they came up with their name. Here's the truth behind the lies in the brochure.

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"Stop 49" Spokespeople Hide True Development Plans and Lie About Impacts of Measure 49

Opponents of Measure 49, some of whom are asking for up to 140 homes, issued a glossy 8-page brochure to Oregon voters this week making hysterical and often patently false claims about the effects of Measure 49.

Among the most egregious lies—

CLAIM: The Netters say: "If Measure 49 passes, we'll lose the value of our property. We want to see the tradition go on... we want to farm."
WHAT THEY'RE NOT TELLING YOU: The statement is patently false. The Netters filed a Measure 37 claim for a 60-lot housing subdivision on their 98 acres of exclusive farm use land. The state denied the subdivision because the land was already protected farmland when Fred Netter acquired it in 1977. Under Measure 37 they are allowed up to 3 houses—Measure 49 would preserve these rights.

CLAIM: Marla Robison says in the brochure: "Measure 49 is about stopping us from passing our property rights on to our grandchildren."
WHAT THEY'RE NOT TELLING YOU: The opposite is true. Measure 49 specifically allows property owners to pass development rights on to their grandchildren, which is not allowed currently (by Measure 37). Marla Robison has proposed an 18-home subdivision, but her property was zoned agricultural when she bought it. Now she's trying to create 2 homes—which Measure 49 would allow.

CLAIM: The Laraways say in the brochure: "If Measure 49 passes, our whole way of life -- as farmers -- as we know it, would be gone."
WHAT THEY'RE NOT TELLING YOU: The Laraways have filed Measure 37 claims to build 144 housing units on their farm land: 42 houses on 10.5 acres, 70 multi-family units on another 10.5 acres, 26 houses on another 26 acres, and 6 units on another 34-acre parcel.

CLAIM: The Currys say in the brochure: "If Measure 49 goes through…we won't have anything left at all. Measure 49 would just take it all away."
WHAT THEY'RE NOT TELLING YOU: No property would be taken away under Measure 49. The Currys are trying to build a 110-home subdivision on their property even though their voters' pamphlet statement says they just want homes for their kids and grandkids. Measure 49 would allow them between 1 and 10 homes.

CLAIM: Ollie Wilcox says in the brochure: "If Measure 49 passes we will lose all our rights – not only our rights, but our children's and grandchildren's."
WHAT THEY'RE NOT TELLING YOU: Measure 49 won't take the Wilcoxes' rights away. She has proposed a 16-home subdivision on 8 acres of rural land. Measure 49 will allow her between 1 and 3 homes, and will specifically give the same rights to her children and grandchildren—rights they don't currently have under Measure 37.

CLAIM: Jennifer Helberg says of her mother, Mary Holtan: "If Measure 49 passes it means my mom can't retire. Under Measure 49, families like ours have to go back to square one and even then we're not assured of any rights…I'm worried about her…we all are. The farm is all she has."
WHAT THEY'RE NOT TELLING YOU: Mary Holtan has applied to have one lot divided into 3 parcels and a second lot divided into two – Measure 49 would allow both.

CLAIM: The Bitzes say in the brochure: "We told our kids we would give our property to them...We'd like to keep our farm for future generations."
WHAT THEY'RE NOT TELLING YOU: Measure 49 will allow property rights to transfer to an owner's children, which Measure 37 does not. But the Bitzes don't need it: under current zoning (without Measure 37), Jerald Bitz can divide his property into seven lots.
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If these lies by the Stop 49 campaign haven't exhausted your gag quotient, head to Peter Bray's blog to learn about how the Stop 49 sleaze machine is using throwaway cell phones to annoy people with anti-49 text messages.

Wow, that's brilliant campaigning. A spam text message – just the thing to make a person vote "Yes" on Measure 49.

I've emailed four of the organizations listed on the brochure as supporters of Stop 49, asking them why they're endorsing lies. This hall of shame includes: Salem Chamber of Commerce, Hillsboro Chamber of Commerce, Oregon State Grange, and Oregon Cattlemen's Association.

The other five groups listed as "major agriculture and business groups" are so "major" they don't have a web site or an obvious Internet presence.

Measure 49 ballot title is accurate and legal

Today's Oregonian story got it wrong. In "The Truth Behind the Political Ads" this is said about a Yes on 49 television ad:

Finally, the ad highlights words from the ballot title, implying it is a neutral description. However, the same legislative majority that put Measure 49 on the ballot also wrote the ballot title, bypassing the process normally used to develop neutral wording.

I've told the reporter, Jeff Mapes, that he fell into the Oregonians in Action propaganda machine.

The Attorney General's response to the OIA lawsuit challenging the ballot title can be read here.

Turning to pages 9-10 of the PDF file (numbered pages 5-6) you'll read how the legislature historically had adopted ballot information. The Chief Deputy Legislative Counsel, who has over twenty years of experience in the Counsel's office, submitted an affidavit saying that it is commonplace to follow the process that was used in Measure 49.

That is, for the legislature to write the ballot language and exempt it from judicial review. I'd like to suggest that a correction is in order. Otherwise, I think you did a good job analyzing the ads.

Jeff responded to me:

I think the proponents have an argument to make that they wrote an accurate ballot title. But if they wanted a neutral ballot title, they would have allowed the usual process to go forward. I've seen the Legislature write the ballot title on a handful of occasions (the 1993 sales tax measure comes immediately to mind) and the point in doing it is to prevent as positive a case to voters, within the limits of what they can do.

Well, I guess it comes down to what "usual" means. I replied to Jeff:

The AG's response uses terms like "common," "routinely," and "commonplace" to describe Mr. Reutlinger's affidavit. (The affidavit itself wasn't part of the PDF file, so I haven't read it). It seems clear that what happened with Measure 49 has happened numerous times before, notwithstanding your comment that this time the legislature didn't follow "the usual process." In any case, I think the situation is quite a bit more nuanced than how it was presented in your story.

I also took the opportunity to point out another OIA legend that makes the round of right-wing blogs. Namely, that the Attorney General's office described the Measure 49 ballot title as an "advocacy piece." This isn't true.

As described in the AG's response to the OIA lawsuit (page 12 of PDF file, numbered page 8), the Attorney General's office was commenting on a proposed citizen initiative completely separate from Measure 49.

Someone wanted the ballot language for that initiative to support its passage, and the AG explained that the ballot title should not be an "advocacy piece." That comment had nothing to do with Measure 49.

The big money pave-it-over brigade opposing Measure 49 is hoping that some of the many lies they're throwing out will stick in the minds of voters.

Fortunately, the truth is simple. Measure 49's ballot language is accurate and legal. It was written the way legislative referrals to the voters commonly are done. Vote "Yes" and believe that what the Voter's Pamphlet says about Measure 49 is true:

MODIFIES MEASURE 37; CLARIFIES RIGHT TO BUILD HOMES; LIMITS LARGE DEVELOPMENTS; PROTECTS FARMS, FORESTS, GROUNDWATER.

RESULT OF 'YES' VOTE: 'Yes' vote modifies Measure 37; clarifies private landowners' rights to build homes; extends rights to surviving spouses; limits large developments; protects farmlands, forestlands, groundwater supplies.

RESULT OF 'NO' VOTE: 'No' vote leaves Measure 37 unchanged; allows claims to develop large subdivisions, commercial, industrial projects on lands now reserved for residential, farm and forest uses.

[Update: Just got this from Jeff. I really appreciate how this reporter is so responsive to a reader's comments. The Oregonian doesn't deliver to our rural south Salem home, so virtually every day I buy a paper in town. By and large, the Oregonian strives for balance and fairness in its reporting, which is a big part of why I go to the trouble of reading it daily.]

I believe it's been three or four times over the last 10-12 years. Bear in mind that most ballot measures are citizen initiatives that do have their ballot titles vetted and, often rewritten. So I think many voters have an impression that the ballot title is a neutral description (and the ad reinforced that by citing as the source, "Oregon Voters' Pamphlet" when the ballot title flashed up on the screen).

Misleading “No on 49” mailing sent from L & C law school

Why was a hugely misleading "No on Measure 49" mass mailing sent from the Lewis & Clark Law School? If this bunch of B.S. reflects the quality of the Oregon school's legal analysis, I feel sorry for the law students.

I got the letter yesterday. The return address said:

James L. Huffman
Erskine Wood Sr. Professor of Law
Lewis & Clark Law School
5340 S.W. Hewett Blvd.
Portland, OR 97221

I won't dignify Huffman's diatribe with any more than this piece of advice: if you recycle the letter, that's an insult to wood pulp that will have to associate its molecules with this garbage. Just this once, throw some paper in the trash – where the letter belongs.

Suffice it to say that nothing in Huffman's letter is accurate. To learn the truth about Measure 49, head here.

I've asked the dean of the Lewis & Clark law school, Robert Klonoff, to explain why the school is being used as a No on 49 campaign center. To email him yourself, click here. I said:

Mr. Klonoff, yesterday I got a letter from your law school (from Professor Huffman) that advocated a "No" vote on Measure 49.

My wife and I are deeply disturbed that you are allowing the law school to be used as a center for the No on 49 campaign. The law school's address is prominently displayed on the return envelope.

In addition, the letter contains many inaccuracies about Measure 49. If this letter reflects the quality of Lewis and Clark's legal analysis, I feel sorry for your students.

Professor Huffman has the right to personally advocate for ballot measures. But Lewis and Clark shouldn't be giving him a forum (and return address) for his uninformed diatribe.

Perhaps your willingness to assist with the No on 49 campaign has something to do with Lewis and Clark's own Measure 37 claims? I hope not, but some are going to jump to this conclusion.

I also emailed Vanessa Fawbush, the Lewis & Clark communications officer (a message to her can be sent here).

Please explain to me why Lewis and Clark allowed its address to be used in the anti-Measure 49 diatribe that I received yesterday from Professor Huffman.

I note that your current dean claims that Lewis and Clark doesn't take a position on political issues. But you allowed Huffman to mail his misleading letter from Lewis and Clark.

I'm an active blogger and plan to write a post about Lewis and Clark's involvement in the No on 49 campaign. I'd welcome any explanation you can give of why Huffman was allowed to use Lewis and Clark as a forum for this mass mailing.

If Huffman did this against school policy, how are you going to deal with his action? What discipline will he face? How will you inform Oregonians that the mailing was conducted under false pretenses?

Dean Klonoff has issued a statement affirming the law school's neutrality on ballot measures. Well, if that's true, let's get the misleading No on 49 letter balanced with a truthful mailing – getting things back to neutral.

Lewis & Clark should require that another letter be sent immediately to everyone who got Huffman's untruthful propaganda. It would say that Huffman wasn't authorized to use the Lewis & Clark address, and encourage the reader to visit the Yes on 49 web site for a balanced examination of this important ballot measure.

If Huffman just gets a slap on the wrist, that'll show that Lewis & Clark doesn't really care if it is used as a platform for political campaigns.

I'll share any responses I get from Klonoff or Fawbush.

[P.S. Just got this from Klonoff:

Dear Sir, Mr. Huffman does not speak for the law school. I have posted a note on the law school web site so stating. The law school is neutral on all political measures. Sorry for any misunderstanding.

OK, that's a start. But not good enough. How is the law school going to correct the "misunderstanding," now that Huffman's letter is in the hands of so many voters? That's the big question.]

Measure 49: a future altering event for Oregon

Yesterday I attended my first Salem City Club meeting, because the program was on Measure 49. It was called "SB 100, Measure 37, Measure 49: Where does Oregon Land?" (nice play on words)

State Representative Brian Clem got in the best line of the noon hour. Referring to the November 6 special election on Measure 49, which will fix many Measure 37 flaws, he said:

This is a future altering event in Oregon's history.

Absolutely. Lane Shetterly, who until recently headed up the Department of Land Conservation and Development (DLCD), started off with a review of how Oregon's land use system evolved to its current state.

I moved to Oregon in 1971. By that time the state already had passed a beach bill that guaranteed public access to Oregon's ocean shore (1967) and had celebrated the nation's first Earth Day (1970).

In 1973 Senate Bill 100 further established Oregon's green credentials. This legislation established urban growth boundaries and protected farm and forest land from sprawl.

Numerous times Oregonians affirmed SB 100. But eventually Oregonians in Action brought out Dorothy English and made her the poster child for the deceptions of Measure 37. Voters thought they were allowing people to build a home or two on land that had been rezoned after they bought it.

But Shetterly said that of the 7500 Measure 37 claims, 58% are for subdivisions (defined as four or more homes). There are 2854 claims on farmland and 944 on forestland.

Measure 49 will limit developments to 10 homes, and prohibit commercial/industrial uses like gravel pits and WalMart stores. Unfortunately, some Measure 37 claimants who have building permits may have done enough construction to be "vested."

In that case, they could continue development under the provisions of Measure 37 even if Measure 49 passes. Shetterly was asked who will decide whether a claim is vested under Oregon's common law.

He said this is in the purview of courts. After Measure 49 is approved by voters, Shetterly said that vesting will be decided on a case by case basis using common law precedents.

The good news for people like us who are fighting to protect their neighborhood from being harmed by Measure 37 subdivisions is that the common law has a key "good faith" criterion. Any Measure 37 claimant who started construction after June 15 (when Measure 49 was referred to the voters) likely is acting in bad faith and can't become vested.

Brian Clem said that this is Oregon's one chance to rein in Measure 37. There won't be anything better than Measure 49 coming from the legislature.

So vote "Yes" on Measure 49. And be sure you know the truth about Measure 49 opponents.

(Here's a Salem Statesman Journal story about the City Club program.)

Oregon’s unseemly rush of Measure 37 construction

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.

All the while, fearing that Oregonians are going to give large subdivisions on farm, forest, and groundwater limited land a big "thumbs down," the bulldozers roll.

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.

What trashed “No on 49” signs tell us

Signs can't speak. And yet, they can. Volumes. I'm going to tell you what I hear these two photos saying.

Last Tuesday signs urging a "No" vote on Oregon's Measure 49 sprouted on a Measure 37 subdivision in south Salem. It sits on groundwater limited farmland that would be perfect for growing grapes instead of asphalt.

The next day, the signs were gone. Vandalized.

I wasn't surprised. And yet, I was. Because our neighborhood is full of law and order-respecting people, not the sort who go around ripping down someone else's political signs.

There's a string of "Yes on 49" lawn signs on four separate properties across Liberty Road from the subdivision. They haven't been touched. So what does the disappearance of the "No on 49" signs tell us?

Our neighborhood is deeply frustrated with what Measure 37 has brought us: special property rights for a few at the expense of the many.

Understand: I'm not condoning vandalism.

All I'm saying is that I understand what led someone to do what they normally wouldn't – mess with the property of the Measure 37 claimants (Leroy and Jean Laack, Andrew and Margaret Rainone, M. Duane Rawlins, and Greg Eide).

What goes around comes around. Our neighborhood has been messed with big time by this planned 42 home (and well) subdivision on 125 groundwater limited acres.

We've been ignored, lied to, and forced to endure legal injustices. So I found it more than a little hypocritical that the property just got marked with legalistic "No Trespassing" signs.

See those bulldozers in the background? From September 17-21 they were busy building illegal roads on the subdivision until Marion County shut them down.

Does one illegality deserve another? No. But the illegal road construction, which tore up a piece of lovely Oregon farmland known as Twin Hills, almost certainly fueled the flame of someone's feeling: I'm mad as hell at these guys.

I share that feeling.

Playing the land development game as tough as you can by the rules is one thing; breaking those rules in a hell-bent attempt to get construction started before voters approve Measure 49 is a whole other thing (the property will be limited to three home sites if Measure 49 passes, because it is groundwater limited farmland).

A front page story in the Salem newspaper said that Bill Lulay of North Santiam Paving claimed there was an agreement with Marion County to start work without the usual construction permit. That isn't true. Here's what I've been told in writing by James Sears, director of Public Works:

The county did not have an agreement with the developer or their engineer to start construction without a permit.

Pretty simple. Laack and his co-owners started to build roads illegally without either a Major Construction Permit or a 1200-C erosion control permit from the Department of Environmental Quality.

And now they're all huffy about people trespassing on their property.

Guys, here's a thought: have you heard of the Golden Rule? You know, the doing unto others thing? If people see you obeying the law, they'll be more likely to respect your rights.

Here's another source of irritation among the fifty or so neighbors actively opposing this threat to our wells and springs. Over and over again in public hearings the Measure 37 claimants and their consultants testified, "We would never go ahead with the subdivision if there was evidence that it posed a threat to existing water users."

Well, pardon my bluntness, but that was B.S. Because the developer's hydrogeologist prepared a report of water availability in the area. Then, as required by a county ordinance, she submitted it to independent water experts for their assessment.

And it failed.

Legally that should have stopped the subdivision until a lot more information was collected via test wells, monitoring of existing wells, and such. But two Marion County commissioners, Sam Brentano and Patti Milne, voted to allow the subdivision to move forward anyway.

This atrocious decision is being appealed, and I'm confident we'll win. For now, we're left with both a legal and ethical dilemma – one which we feel we're on the right side of, and the Measure 37 claimants aren't.

Because they have to live with their broken promise to the neighbors. They said they wouldn't go ahead with the subdivision if there was evidence that neighboring wells and springs could go dry. There is. That's a fact.

Yet those bulldozers were out there working away last month, putting the lie to that commitment. Illegal road construction following broken promises following a failure to respect a county ordinance.

Which brings us back to the trashed signs. Again, I'm not excusing the vandalism. But when you push a neighborhood around by breaking laws and your own word, stuff like that is more likely to happen.

It's human nature. Treat people like trash and you run a greater risk of getting trashed in return.

So if you've an Oregon voter, vote "Yes" on Measure 49 when you get your ballot in a few weeks (we vote entirely by mail in this sometimes-enlightened state).

Measure 49 will go a long way towards stopping the neighbor against neighbor craziness that Measure 37 has spawned. It will restore much-needed order and fairness to Oregon's land use system.

And I'm confident that will lead to fewer sign trashings in the future. When people feel like they're being treated fairly, they return the favor.

Alaska voters soundly reject Measure 37 clone

Great news for Oregon. We don't have to feel guilty about exporting our horribly flawed Measure 37 to Alaska. Yesterday voters in the Matanuska-Susitna (Mat-Su) Borough near Anchorage voted down Proposition 1, a Measure 37 clone, by a 2-1 margin.

What do you think of that, Dave Hunnicutt and Oregonians in Action? You're always talking about how Measure 37 is a model for other states.

Well, in Alaska it was a model for what not to do. Not even one of 34 precincts voted for Prop 1.

Hunnicutt and I were each quoted in an Anchorage Daily News story about Prop 1, "Land use debate looks to Oregon," that ran last week. Looks like my sentiments were much more in attune with Mat-Su voters.

Brian Hines, an author and retiree who runs the blog hinessight.blogs.com , said Measure 37 has had other ill effects.

He and his neighbors have spent "tens of thousands of dollars" fighting a nearby development of 42 lots on 125 acres, which sprang from Measure 37. It's pitted neighbors against one another.

"The main message is just that Oregonians are waking up and seeking that Measure 37 is not helping the mom and pop landowners people thought it would," Hines said. "What's unfortunate is that with Measure 37, there's so much rancor. It's deeply divisive."

Rindi White, the reporter who interviewed me, mentioned that Alaska has deep libertarian roots. I told her, "So does Oregon." Alaskans and Oregonians value their freedom.

Which includes the right to be free of subdivisions being exempted from land use laws that everyone else has to follow, and the right to not have our neighborhood wells go dry from unregulated excessive Measure 37 development.

Yesterday I was listening to conservative talk radio and heard a caller say, "Freedom is the right to not have things done to you."

Absolutely. That's why Proposition 1 was voted down in Alaska. And why Measure 49, Oregon's Measure 37 fix, is going to pass in November's special election.

If you love Pinot Noir, vote for Measure 49

I'm no wine expert, but I know what I like. Which at this very blogging moment is a glass of Oregon's Kings Ridge Pinot Noir 2006.

It's a fine wine. That's how my crude palate would describe it. A more refined description is "scads of flavor, character, and really good mid-palate layering."

I also like Measure 49. It's a fine ballot measure that Oregonians soon will be voting on. Today a Portland Oregonian editorial offered up a refined oenophile argument for voting "Yes" and fixing Measure 37 – which could destroy our state's wine industry.

Measure 37 was supposed to bolster the property rights of people who bought their land before the land-use rules took effect. But it completely ignored -- and bulldozed -- the property rights of everybody else, treating them as if they didn't exist. Some are newcomers, some are old-timers, some may even be from France. But they are property owners, too, and should be treated fairly.

In hindsight, Measure 37 looks like an attempt to capture fairness in a bottle, as if only one vintage of ownership matters -- not neighbors, not farmers, not future generations. Yet as every winemaker knows, you can't just stop with one vintage and call your winery a success. You have to keep growing grapes year after year.

If voters approve Measure 49, Oregon winemakers won't even have to taste this year's pinot to know for certain. They'll know instantly: For their industry and for our state, 2007 will be a very good year.

My wife and I are leading our neighborhood's fight against a Measure 37 subdivision on groundwater limited high-value farmland. Recently road construction was started illegally on the property.

Any grape grower or Pinot Noir lover who drove by before Marion County shut down the un-permitted work would have thought, "What a crazy thing to do."

Crazy, because these rolling hills are perfect for a vineyard. Almost 99% of the 217 acres is composed of high value soil (Class I-IV). And nearly all of that soil is Nekia Silty clay loam.

Which a few minutes of Googling revealed is what another vineyard in the Salem area is growing Pinot Noir on. The Carter Vineyard web site says:

The soil is a shallow silty clay loam known as Nekia. It's a well drained soil frequently found in foothills and rolling uplands. Under the top 30 inches of soil is fractured decaying basalt, a relic of Oregon's violent volcanic past. The shallowness of the soil forces the grapes to struggle a little for survival by digging their roots down in the crumbling basalt. As the basalt deteriorates, it releases minerals that are taken up by the plants and reflected in the flavors of the grapes.

Leroy Laack, the Measure 37 claimant, likes to talk about how unfarmable this EFU (exclusive farm use) property is. Yet at one of the many hearings on his subdivision plans, a local farmer testified that he had put some Willamette Valley acreage up for sale and got a phone call from a Californian.

The man said, "I'm not interested in the flatland you're selling. But do you know of any available farmland in the south Salem hills?" He wanted to grow grapes here, like so many other people.

The farmer said that he guessed the Measure 37 property was worth $10-15,000 an acre to a grape grower. Two hundred eleven acres could be sold for $3,000,000 or so. Under Measure 49 three lots of two acres each also could be sold for home sites – with development rights unavailable under Measure 37.

All at little cost to the four owners of the 217 acres. No expensive road building. No marketing of forty-two lots in the face of furious neighborhood opposition and signs surrounding the subdivision that would say: "Don't buy here! Very limited water! Call XXX-XXX-XXXX to learn more."

So vote for Measure 49.

It's good for Oregon. It's good for neighbors like us who risk having our wells and springs go dry because of the subdivision. It's good for Measure 37 claimants who won't have to worry about the uncertainty spawned by the ambiguity of that poorly written law.

And it's really good for Pinot Noir lovers.

Alaska, don’t repeat Oregon’s Measure 37 mistake

A few days ago I spent a pleasant half hour talking with a reporter from the Anchorage Daily News. Rindi White's story, "Land-use debate looks to Oregon," is about Mat-Su Borough's Proposition 1 that will be voted on by borough residents next Tuesday, October 2.

My main message to Rindi, and by extension to Mat-Su voters, was: Vote No! Learn from Oregon's mistake!

Because Proposition 1 is copy cat legislation from Oregon, and the mangy creature it's modeled on is Measure 37 – which Oregonians are poised to reform through Measure 49 in a special November election.

I told Rindi that many of our neighbors voted for Measure 37. But I don't know of any, not even one, who plans to vote against Measure 49. They've seen what a disaster Measure 37 has been for Oregon, planting subdivisions on groundwater limited farmland where a vineyard should be instead.

Along that line, here's a special note to Dave Hunnicutt of Oregonians in Action. Dave, in a recent Oregonian story about Oregon's wine industry being threatened by Measure 37, you pooh-poohed the notion that subdivisions are being built on vineyard friendly farmland.

"They were talking about massive subdivisions two years ago and where are they?" asked Dave Hunnicutt, president of Oregonians in Action, the Tigard-based group that sponsored Measure 37. "The only big subdivisions being built are ones in cities that are mandated by our existing land-use laws."

You should subscribe to Google News alerts, Dave. Then you'd be able to read a recent Salem Statesman Journal story about a Measure 37 subdivision that is being built on high value farmland that is perfect for growing grapes (there are vineyards on similar rolling hills right down the street on Liberty Road).

Once that irreplaceable land is paved over, it's gone. So Alaskans, learn from Oregon.

Your Proposition 1, like Measure 37, is intended to make the rich richer and the average person poorer – because it will trash the property rights of the many so a few privileged people exempted from laws that everyone else has to follow can make a lot of money.

Government shouldn't be guaranteeing a return on real estate investments. Investing is risky. Situations change, including government rules and regulations.

Those who bought property for big-time investment purposes, rather than to live on, or build a few homes on, shouldn't be treated any differently than stock, bond, commodities, or other sorts of investors.

Alaskans, three years after Measure 37 passed we Oregonians are about to fix it through Measure 49. So if you make a mistake and pass Proposition 1, I predict that you'll be having the same regrets in 2010.

Save yourself and your state a lot of trouble and money. Vote "No" on Prop 1. Then, if you still feel like there are some inequities in your borough's land use laws, model new legislation on our Measure 49.

Trust me. You'll be doing the smart thing. For yourselves. And for Alaska.

Illegal Measure 37 subdivision construction is front page news

The Yes on 49 folks should count a Measure 37 claimant's illegal road construction as a campaign contribution, because a front page story in today's Salem Statesman Journal should lead many Oregonians to vote "Yes" on Measure 49.

The story, which quotes me several times, points to several reasons why Measure 37 has to be fixed. Oregonians in Action (OIA) likes to say that no Measure 37 subdivisions will move forward unless there is proof of sufficient water for development.

But the Laack subdivision (Leroy Laack is the primary claimant) failed to show this. A Hydro Review report prepared by their hydrogeologist, Malia Kupillas, was failed by independent experts hired by Marion County.

However, two of the three Marion County commissioners – Sam Brentano and Patti Milne – ignored the county ordinance that stops development of a subdivision if a Hydro Review fails.

This shows that public officials can't be counted on to protect the public from harmful effects of Measure 37 claims. The Statesman Journal story pounds another nail into the coffin of OIA's dead-on-arrival "trust us, everything will be all right" spin.

Because the Measure 37 claimants (Laack, Greg Eide, and two other owners) went ahead and started road construction without either Marion County or DEQ permits. For five days, D8 Caterpillars illegally tore up high-value Oregon farmland until the county finally stopped this madness.

We can't figure out why it took so long for Marion County to recognize the obvious illegality. I filed a complaint with Code Enforcement the evening of Tuesday, September 18 (we were out of town when the road-building began on Monday).

It took until Friday afternoon, though, for the D8's to be shut down. I was the one who pointed out to county officials that their own final order for the subdivision requires a Major Construction Permit before construction of road improvements may commence.

Yet the newspaper story quotes Bill Loulay of North Santiam Paving:

Loulay said there was an agreement with Marion County to start work before getting the usual construction permit.

"We in good faith thought we were off and running," he said.

Well, we and our neighbors would like to know what Marion County official told Loulay it was OK to go ahead without a permit. We're suspicious this is why it took three days for the county to shut the illegal road construction down, when such should have happened right away.

Yesterday a neighbor told us a story about what happened when a Marion County inspector came out after her home had been built and her family was ready to move in. The inspector said, "You don't have your house number posted on the road."

He waited in their driveway while the woman rushed into town to buy some house numbers to put on their mailbox, or wherever. She wondered how Marion County could be a stickler on such a small thing, while being willing to let North Santiam Paving plow ahead with 60-foot wide subdivision roads without a permit.

Another oddity in the story is this statement from Loulay:

Last week's work moving dirt and leveling a road went on without the proper Marion County and Oregon Department of Environment Quality permits.

For developers, it was a case of miscommunication.

The DEQ erosion-control permit was issued Monday, more than a month after North Santiam Paving applied for it and several weeks after the agency said it would be mailed to the homeowner.

"It gets sent to the owner," said Bill Loulay of North Santiam Paving. "We assumed it got to the homeowner because we gave them about twice as long as they said it would take."

Bill, have you ever heard of something called a "telephone"? It's a cool invention. You can pick it up, push some buttons, and be able to talk with Greg Eide – who filed the DEQ 1200-C erosion control permit. Then you can say, "Greg, have you gotten the permit?"

Here's another funny thing. I know next to nothing about DEQ permits. North Santiam Paving must know a lot, because DEQ told me they've applied for the permits in the past. It took me about a minute to find the status of Greg Eide's 1200-C application online.

Did you ever think of checking to be sure the permit was approved before you started the road construction, Bill? Your equipment started moving dirt on September 17. The permit was approved September 24. That's five work days of illegal construction.

Not good for a construction company. And not good for a Measure 37 claimant. But such is to be expected with the "rush to become vested" that is occurring before Measure 49 goes into effect.

Of course, illegal construction work won't count toward vesting. But it sure does count toward making voters want to vote "Yes" on Measure 49 and stop the Measure 37 craziness.

Let's let Oregonians with Measure 37 claims have one to ten home sites. That's fair. But large subdivisions on groundwater limited farmland, especially those that begin building illegally? Not fair at all.

More Measure 37 subdivision craziness

I'll be really happy when November 6 rolls around and I learn that Oregon's Measure 49 has passed by a resounding margin in the special election.

Because fighting a Measure 37 subdivision on groundwater limited high-value farmland is taking up an awful lot of my time lately.

In my last post I wrote about how Leroy Laack and his co-claimants jumped the gun on road construction and started trashing some beautiful Oregon countryside without a permit.

This morning I learned that the stop work order that I'd been told had been issued, actually hadn't. Laack only had agreed to temporarily stop his illegal road construction, but he was still hoping to get a sweetheart permit deal from Marion County that would allow him to fire up the D8 Caterpillars soon.

Fortunately, he won't be able to. The Public Works Department is going to make Laack get in line for his Major Construction Permit along with everyone else, which will take at least four to five weeks.

This afternoon I drove by the work area and saw a welcome sight. May the rest of the equipment soon follow.

What's crazy about all this is that it took almost a week to get Marion County to enforce its own final order approving the subdivision (which we and our neighbors are in the process of appealing) and require a Major Construction Permit.

Since my wife and I have become land use activists we've found that almost every interaction we have with Marion County officialdom is like swimming upstream – the bureaucratic current is tilted in favor of well-heeled developers and Measure 37 claimants, while ordinary people like us who are simply trying to protect their wells and property rights have to go through a lot more effort to make our voices heard.

This afternoon I learned that Laack and North Santiam Paving also didn't have a DEQ (Department of Environmental Quality) permit before they started construction.

Supposedly they'd applied for a permit and figured that applying was as good as actually having one. I'll have to remember this lame excuse if I'm ever stopped for an expired car registration and tell the officer, "Oh, it's OK. I applied for the stickers and just haven't gotten them yet."

We're dubious that Laack has jumped through all the DEQ hoops that he's supposed to. A guy who is fine with illegally building roads likely isn't going to worry much about complying with environmental rules.

Well, this is what Measure 37 has brought us. A mess. (Yes, that's my photo of the un-permitted construction work, right on top of the page).

Vote for Measure 49. Put an end to the craziness in our neighborhood by limiting this Measure 37 claim to three home sites.

The rest of the 217 acres will make a great winery. And still make the owners a lot of money. I'll buy the first case. That's a promise.

Illegal construction on Measure 37 subdivision

Just as we suspected when D8 Caterpillars started bulldozing on a nearby Measure 37 claim, the road construction work that started Monday and went on for most of the week was illegal.

Marion County shut it down yesterday, issuing a stop work order. But not before quite a bit of un-permitted road building took place on high-value Oregon farmland.

Why would the Measure 37 claimants – Leroy L. and Jean R. Laack, M. Duane Rawlins, Greg M. Eide, Andrew A. and Margaret Rainone – move ahead on subdivision road construction without a permit?

Why would North Santiam Paving agree to build an illegal road for them?

Why would Marion County Public Works be on the verge of allowing the construction to continue without a permit?

These are questions that we and our neighbors don't have answers to yet.

We do know that work on the site stopped yesterday afternoon, thanks in no small part to Janet Carlson, chair of the Marion County Board of Commissioners. About 4:00 pm I got a call from one of her staff, saying that Laack had agreed to cease the illegal construction.

Thursday I'd contacted Commissioner Carlson, telling her that the final order approving the subdivision (which is being appealed) says "A Major Construction Permit is required before construction of roadway and drainage improvements may commence."

A Public Works manager, Bill Worcester, already was looking into the un-permitted work, but I thought it wouldn't hurt to let Commissioner Carlson know that the Board's final order was being ignored.

What's perplexing is that I'd been told that a Public Works attorney had advised that a deal could be worked out with North Santiam Paving where they'd complete the subdivision roads without a permit, then have them inspected by the county after the fact.

Weird. You'd think that the first thing the attorney would have done was read the final order. Instead, I was the one who pointed out to Public Works what Laack and his co-Measure 37 claimants were required to do.

Thankfully, last time I looked the bulldozers were motionless and lined up neatly.

The minds of us and many neighbors are still working, however, trying to fathom why someone would purposely ignore Marion County rules and start road construction without a permit.

What this shows is the desperation of a Measure 37 claimant who's afraid that Measure 49 will pass November 6, in which case he'll be limited to three home sites (because the subdivision is on groundwater limited farmland) – rather than the 43 he wants to have.

Rushing to construction, in this case illegally, was an obvious likely side effect of referring Measure 49 to the voters rather than passing it directly. I warned about this back in June. And now it's come to pass.

To no avail for the Measure 37 claimants. County staff have told me that construction work occurring without a permit almost certainly wouldn't qualify as a "vesting" expenditure.

Well, if nothing else this shows that Measure 49 is right on target (these signs are right across from the subdivision).

Allowing "Ma and Pa" to build a few homes on long-held property, fine. Preventing would-be subdivision developers from trashing irreplaceable Oregon farm, forest, and groundwater limited land, not fine.

Especially when they ignore the rules and start their Measure 37 construction without a permit.

[Monday update: Astoundingly, I've been told that Marion County hasn't actually issued a stop work order, though the Measure 37 claimant has agreed to cease construction temporarily. It's amazing that the county is unwilling to enforce its own final order and seems to be bending over backwards to allow illegal road construction. Hopefully wiser minds will prevail soon and the claimant will be required to go through the normal application process for a Major Construction Permit.]

Look, frown, then vote for Measure 49

Not a pretty picture, is it? High value Oregon farmland, 125 acres of it, perfect for a vineyard, being bulldozed into a Measure 37 subdivision.

This is the sight that greeted us after we got home today from a long weekend away. Neighbors had phoned and emailed us, saying that large earthmoving equipment was at work. One friend said that he drove a roundabout way home, since seeing an irreplaceable piece of Oregon farmland being torn up by a D-8 was too much for him.

As it is for most Oregonians, which is why this Measure 37 claim near us – the Laack subdivision – serves as a poster child for voting Yes on Measure 49 this November.

Measure 49 limits development on farm, forest, and groundwater limited land to three home sites. The Laack subdivision is both high value farmland and groundwater limited.

Defenders of Measure 37, such as Oregonians in Action, like to say: "Current regulations won't allow Measure 37 developments to move forward unless there is enough water to supply the subdivision without harming existing users."

Wrong, wrong, wrong. Take another look at the photo. You're seeing a Measure 37 subdivision moving forward, even though independent water experts hired by Marion County concluded that it shouldn't. They looked at all the evidence and found that neighboring wells and springs could be harmed by 42 more wells going in.
Download peer_reviewlaack.pdf

But politics overruled hydrogeologic science. Two of the three Marion County commissioners (Sam Brentano and Patti Milne) ignored the water experts and the county's own groundwater ordinance, choosing to trash the property rights of the many in favor of a privileged few.

Measure 49 will bring fairness back into Oregon's land use system. Hundreds of people live in the area around the Laack subdivision. Many of them owned their property before the Measure 37 claimant bought his. They assumed that their wells wouldn't be sucked dry by excessive unplanned development.

Yet this is what Measure 37 has brought us: 42 home sites on three acre parcels in an area that has been officially designated as needing at least five acres to support a well.

Crazy? Yes. Especially to neighbors of the Laack subdivision who have already had to deepen or replace their wells, and are wondering why bulldozers are moving earth on land that water experts say shouldn't be developed.

Even though many of our neighbors voted for Measure 37, they're all voting "Yes" on Measure 49. If you're an Oregon voter, you should too.

For so many reasons.

Yes on Measure 49 signs: beautiful or beastly?

Beauty. It's in the eye of the beholder. Portland blogger Jack Bogdanski doesn't like the "Yes on 49" signs that are cropping up around Oregon. He says, they look bad – contributors to visual blight.

Well, to me and most of our neighbors, they're gorgeous. Because they're intended to save our state from something really ugly: Measure 37.

About a week ago I picked up five bundles of Yes on 49 signs. They're the brainchild of signmeister David Adams, a follow-up to his Measure 37 "Fix It or Nix It" campaign. (The "Yes on 49" campaign also has lawn signs.)

This bunch went up on neighbor Wayne's property. He lives right across the street from a proposed 42-lot Measure 37 subdivision.

Lots of people in the area have water problems. Wayne had to replace his well after it went dry. He isn't wild about 42 new wells sucking water out of the aquifer he depends on. Especially when independent experts say there isn't evidence of enough water to supply the subdivision without harming current users. (But the subdivision was approved anyway.)

Neighbor Martin was happy to put up some signs also.

After taking that photo I crossed Liberty Road and snapped a shot of the groundwater limited farmland that Measure 49 would protect by limiting the Measure 37 claim to three home sites. The rest would be great for growing grapes.

Brother blogger Jack, I feel your pain about roadside signs. My wife and I hate billboards. Yet here's our Lake Drive frontage, plastered with Yes on 49 urgings.

Come November 7 I'll take them down. Hopefully with a big post-election smile on my face. Until then my artistic assessment is:

Beautiful.

[Update: Dave Adams' "Yes on 49" sign campaign got some good publicity on a Eugene TV station yesterday. Check out the KVAL story and video here.]

More reasons to vote for Measure 49

Courtesy of the Oregon-loving, genuine property rights-respecting folks at Measure 37 in Action:

Oregon Measure 37 Claim Maps by County In Oregon, there are more than 7,500 Measure 37 claims filed. In total, these claims cover over 750,000 acres of land and the developer's demands for compensation total around $15 billion of Oregon taxpayer's money. Most of these claims have been filed on Oregon's most productive farmland as well as in our precious, protected forestland. Check out the story, take a moment to 'digg it' and then view the maps of Measure 37 development claims. They show a breakdown of claims by Oregon region.

Measure 37 Claim to Build a Mine and Homes in the Newberry Crater National Monument In 1992, Congress designated the Newberry Crater a national monument. By definition, a national monument can include private property, but is managed by federal agencies to insure proper protection of the area. On June 1, 2006, James Miller filed a Measure 37 claim for $203 million in compensation for restrictions on development in the Newberry Crater. Read the post on Measure 37 Watch after you take a moment to "Digg it". Measure 37 Watch is a site explaining examples of how Measure 49 helps fix the serious flaws in Measure 37.

Measure 49 helps surviving spouses, so vote “Yes”

There's a debate going on in the blogosphere over whether Oregon's Measure 49 – to be voted on this November – really helps surviving spouses.

The subject is mostly of interest to land use junkies or people with Measure 37 claims, but it points up the difference between how pro- and anti- Measure 49 folks address issues. Namely, with reason and logic (pro) or emotion and it's-true-because-I-say-so (anti).

Over on a blog that inaccurately proclaims to tell the truth about Measure 49, it's asserted that if you're a surviving spouse "Measure 49 will get ya!"

When I came across this post I was surprised, since I've read the bill that became Measure 49 in its entirety and I agree with the Yes on 49 web site summary that says it will:

Extend Measure 37 rights to surviving spouses whose ownership rights did not qualify for standing under Measure 37.

Indeed it does, as a more accurate blog post over at Oregon Watch demonstrates. All you have to do is read the ballot language and use some common sense. The pertinent section reads:

If the claimant is the surviving spouse of a person who was an owner of the property in fee title, the claimant's acquisition date is the date the claimant was married to the deceased spouse or the date the spouse acquired the property, whichever is later.

Now, I'll admit that this isn't the clearest sentence ever written. Unless you put some thought into it, it isn't completely obvious whether the final "spouse" refers to the deceased spouse or the surviving spouse.

The anti-Measure 49 blogger jumped to the conclusion that it means the surviving spouse. If this were the case, Joe could buy his property in 1970, marry Jane in 1980, then die in 1990, and supposedly the acquisition date would be 1990 – when Oregon had more land use restrictions compared to 1980 (because that's when Jane inherited the property).

However, if you read through the comments on the "If you are a surviving spouse, look out, Measure 49 will get ya!" post, you'll find an interesting interchange between logical batmantempest and the untruely named Common Sense.

Common Sense is so convinced that the Democrat-dominated Oregon legislature wouldn't do anything to help the spouses of Measure 37 claimants, he's unable to see the flaws in his own narrow point of view.

It's pretty darn obvious that when the bill says "was married to the deceased spouse or the date the spouse acquired the property," the two uses of the word "spouse" mean the same person. Namely, the deceased spouse.

Thus under the previous example, Jane was married to Joe in 1980; Joe acquired his property in 1970; so Jane's acquisition date is 1980, because it is later than 1970. And also earlier than 1990, which the crazy reasoning of Common Sense would have us believe the acquisition date is.

Bottom line: Measure 49 helps surviving spouses, who otherwise would be mostly left out in the cold, claim-wise, if they weren't listed as owners of a piece of property before their spouse died.

Measure 49 helps current Measure 37 claimants in other ways also. It makes development rights transferable to new owners for claims up to 10 home sites. And it creates an "express lane" option for up to three home sites.

So don't believe the frothing-at-the-mouth assertions that are being thrown out by the anti-Measure 49 crowd. It doesn't do away with Measure 37. It doesn't make current claimants start over. It doesn't treat spouses unfairly.

Rather, it fixes the excesses of Measure 37 (like allowing large subdivisions on precious farm, forest, and groundwater limited land) and helps Measure 37 claimants with appropriately sized claims – up to 10 home sites.

Thus whether you like Measure 37 or detest it, there's good reason to vote "Yes" on this carefully crafted compromise that protects Oregon's livability for everyone.

Measure 49 lives! OIA lawsuit dismissed

Good news for Oregon. A federal judge, Ann Aiken, has refused to strike down the ballot language for Measure 49, the much-needed fix for Measure 37.

Interestingly, the decision came shortly after the case was reassigned from Judge Hogan to Judge Mosman, and then further reassigned to Judge Aiken. I don't know what this means or how it came about, but the final decision was fair (and expected, by me at least).

The AP story says that Oregonians in Action plans to lawsuit their way on with a challenge in Marion County District Court.

Suggestion to OIA: why don't you try convincing Oregonians that large subdivisions on farm, forest, and groundwater limited land are just fine and dandy, as Measure 37 allows?

That'd be a hard sell, wouldn't it? Guess this explains why OIA is afraid of the upcoming November vote. Strange, since this is a group that always is braying about "respecting the will of the people."

Let that will be heard, OIA. No more lawsuits trying to stop the election.

Why Measure 49 is needed to protect Oregon groundwater

Lots of Oregonians take the water that comes out of their faucets for granted. But if you rely on a well, you don't.

Measure 37 opened up farm and forest land for development that lacks enough water for subdivisions. Fortunately, Measure 49 is riding to the rescue of people like us and our neighbors whose rural water supply is threatened by Measure 37 claims in groundwater limited areas.

Maybe you think that Oregon already has protections against subdivisions causing surrounding wells and springs to go dry. If so, think again.

My wife and I know whereof we speak. As do more than thirty other property owners in our area who have formed a Keep Our Water Safe committee to, well, keep our water safe.

Last night our email inbox contained the final order from Marion County approving a 42 lot, 125 acre subdivision on groundwater limited farmland in the south Salem hills. Two of the three county commissioners signed it: Sam Brentano and Patti Milne.

Failing to heed loads of evidence that there isn't proof of enough water to supply 42 more wells without existing water users being harmed, Brentano and Milne voted to approve the subdivision (Commissioner Carlson correctly voted "No").

So it was appropriate that these two signed the final order. We've been curious to learn what sort of twisted logic could be used to support the crazy decision to allow the development to proceed after experts hired by Marion County, as required by its groundwater ordinance, gave a Hydro Review prepared by the applicant a big thumbs down.

I called that another Measure 37 outrage, because it completely ignored the property rights of the many people already living in an area in favor of the Measure 37 rights of a few would-be subdivision builders. (See the "Protect Oregon Property Rights" blog).

Like, the right to not have our wells go dry.

For those land use junkies who'd enjoy pouring over the 26-page Marion County final order, here it is in its 2 MB pdf file glory: Download boc_decision.pdf

For the broadband limited, I fashioned two pages relating to the Hydro Review prepared by the Measure 37 applicant (Leroy Laack) into picture files. They're readable, if you've got good eyes.

But be warned. You might feel like tearing your hair out if you value common sense (and careful editing – there are obvious wording and spelling errors, which reflects how little thought went into this turkey of a final order).

I'll summarize what's going on here for the benefit of those concerned about Oregon groundwater who want an explanation of why Measure 49 deserves a "Yes" vote.

Politicians can't be counted on to enforce their own groundwater protection ordinances, because many are so pro-Measure 37 they refuse to recognize clear evidence of insufficient water for a large subdivision.

So Measure 49 is needed. It will limit developments on groundwater limited farmland, like this one, to three home sites. That still may be three too many in our area, given how many wells already have had to be deepened or replaced, but it's a heck of a lot better than 42.

Groundwater is real, not political. It's either there, or it isn't. Hydrogeologists have ways of learning whether there is enough water for a subdivision. The Measure 37 applicant's consultant, Malia Kupillas, prepared a Hydro Review report that tried to show this.

She failed. The scientific process called for in Marion County's groundwater ordinance is to submit a Hydro Review to an independent expert for an unbiased assessment – the same thing that's done in reputable science journals before a paper is published.

The expert concluded that there isn't sufficient information available to prove that the subdivision won't harm surrounding wells and springs. Thus the Measure 37 applicant's report was failed.

Under the groundwater ordinance this should have triggered a much more extensive Hydro Study. But the two county commissioners ignored this law and cherry-picked conclusions provided by Leroy Laack's own hired gun.

And their final order conveniently fails to mention a central, key, all-important fact: the Hydro Review that was submitted to the independent expert failed.

Sam Brentano and Patti Milne either don't understand their own county ordinances, or they're choosing to ignore them. Either way, this is reason to vote them out of office when they're up for re-election.

And to vote for Measure 49 in November. Because politics can't be allowed to trump common sense.

Which is: your property rights stop when they make my well go dry.

Measure 49 lawsuit arguments demolished by Oregon AG

Whew! I feel a lot better now about the chance of the Oregonians in Action lawsuit against Measure 49 being rejected by federal Judge Hogan.

I just did a quick read-through of the Oregon Attorney General's response to the lawsuit (thanks to Peter Bray of Land Use Watch, who made it available on his blog).

You can read the 31 PDF'd pages yourself. Download oia_lawsuit_response.pdf

Some points that leapt out at me:

--(page 5) Yes, it would cause voter confusion if Measure 49, which fixes many of the flaws in Measure 37, were to go on the ballot without a title or description. But that's what Oregonians in Action wants. Confusion.

--(pages 9-10) The Oregon legislature routinely writes the descriptive language for measures it refers to voters. Nothing different is going on here, contrary to claims made in the OIA lawsuit.

--(page 12) The Attorney General never said that the ballot language for Measure 49 was an "advocacy piece." Rather, the AG was commenting generally that such language shouldn't advocate for a "yes" or "no" vote. Here again, OIA twisted the facts.

Prediction: Judge Hogan will rule against OIA, decisively. The final lines of the AG's argument will come true.

The present motion for preliminary injunction lacks merit. It is late without explanation, it presents no colorable claim on the alleged constitutional violations, and it threatens to cause far greater harm than it could ever forestall. The motion should be denied.

Nature Conservancy Measure 49 support deserves a “Winner”

Bad choice. The Salem newspaper is leaning toward giving a "Tossup" to The Nature Conservancy for contributing more than $350,000 to the Yes on Measure 49 campaign.

Measure 49 is a much-needed fix for Measure 37, which trashed Oregon's land use system and gave special rights to a few privileged property owners.

The Statesman Journal editorial board is asking for comments on their planned Winners and Losers piece that will run tomorrow (Monday). This is what I told them:

Come on. The Nature Conservancy should get a big thumbs-up, not a tossup, for contributing $350,000 to the Yes on 49 campaign. Gee, the Nature Conservancy is trying to conserve Oregon nature. How can they get an equivocation from the Statesman-Journal for that? Passing Measure 49 is absolutely essential if Oregon farmland, forestland, and groundwater limited areas are to be protected from unnecessary greedy development. I urge you to change your Tossup to a Winner.

There's probably still time to send in more feedback about the Statesman Journal draft opinion about The Nature Conservancy. You can write to the newspaper editorial board here or here.

The Nature Conservancy has explained why they're supporting Measure 49, even though they usually don't weigh in on ballot measures. These are good reasons for every Oregon voter to do the same.

Oregonians in Action Measure 49 lawsuit: read it here

Just got this. It's way too late for me to read 60 pages of Oregonians in Action B.S. about why the Measure 49 ballot language is bad, bad, bad (not to mention unconstitutional).

But maybe there are some insomniac land use lawyers surfing the net right now.

So here you are: a Memorandum of Law in Support of Application for Temporary Restraining Order and Motion for Preliminary Injunction.
Download oia_lawsuit.pdf

Yawn.

Read my Measure 49 voter’s pamphlet argument

It's going to cost my wife and me $500 to put a "Vote YES" argument in the Measure 49 section of the Oregon voter's pamphlet. So please read the 323 words that I crafted this afternoon (see continuation to this post).

Every additional person who peruses this electoral work of literary art makes me feel better about the check I'll soon be writing to the Elections Division.

If you want to follow in my politically active footsteps, click on this page and find the link to SEL 405, the cryptically numbered PDF form for filing a measure argument for the November 2007 special election.

(For some reason the form still refers to "2006 Voter's Pamphlet Filing Fees and Deadlines, but I was told by the Elections Division to use it anyway).

We've never paid for a voter's pamphlet argument before. But then we've never cared so much about a ballot measure before.

Our neighborhood's wells and commonly owned lake are threatened by a Measure 37 subdivision. That's made a whole lot of people around here into land use activists and Measure 49 supporters – even many who voted for Measure 37 and have come to see what a mistake that was.

It's nice to see that a poll of Oregon voters by Riley Research found that 58% said they were likely to vote "Yes" on Measure 49, while just 12% opposed it.

Hopefully this will put a sock in the mouth of Oregonians in Action and other die-hard Measure 37 supporters who keep blathering about how voters shouldn't be asked to express their opinion on Measure 37 again.

It sure looks like their opinion has changed, now that Oregonians have learned that large subdivisions on farm, forest, and groundwater limited land are the true face of Measure 37, not sweet old Dorothy English.

Here's our argument in favor of Measure 49. It might change some before I submit it along with our check. The truth of which we speak is unalterable though: Our groundwater is threatened by the proposed 42-lot Measure 37 subdivision. And Measure 49 is our best hope for keeping our wells and lake from drying up.

Poll shows Measure 49 looking strong, Measure 50 weaker

The Portland Business Journal is reporting that a poll to be released Monday shows Oregon voters strongly support Measure 49, a fix for the seriously-flawed Measure 37, but are more "if'y" about Measure 50, which raises the state tobacco tax and earmarks it for children's health care.

Guess this shows why Oregonians in Action, the main Measure 49 opponent, seems to be putting all of its effort into a federal lawsuit that challenges the description that will be on the ballot.

If voters are given honest information about what Measure 49 does – protect farm land, forest land, and groundwater, while giving Measure 37 claimants additional transferability and survivorship benefits – it'll pass easily.

Muddy the waters, confuse the public, spread disinformation. That's the OIA game plan. Pathetic, but that's all they've got going for them, since most Oregonians don't want our beautiful state trashed.

Measure 37 claimants should vote for Measure 49

Me thinketh Oregonians in Action (OIA) doth protest too much about Measure 49, a balanced effort to fix Measure 37 – which trashed Oregon's land use laws and threatens our state's vaunted livability.

Most Measure 37 claimants are going to make out better under Measure 49. If OIA really cared about their constituency, they'd be urging a YES vote this November.

As I said in "Measure 49 truth and lies," deception is the only avenue open to OIA and other Measure 49 opponents. They aren't fighting fair because they know they'll lose an honest fair fight.

Oregonians don't want more billboards and pumice mines in national monuments, which Measure 37 will bring them if it isn't changed.

And Measure 37 claimants don't want the headaches that this poorly written law has brought them, such as the inability to transfer their waivers.

What this means is that if a claimant has the right to build a house on land where that currently isn't allowed, but was when they bought the property, they can't transfer that right to a buyer of the property. This is a big drawback for a prospective buyer. And, naturally, for the prospective seller.

Measure 49 allows the transfer of waivers. This should be enough to make Measure 37 claimants rush to check the YES box when they get their ballots. Land is much more valuable with development rights attached.

But Measure 49 opponents are muddying the water on this issue, fearing that Measure 37 claimants will see through the untruths on the OIA web site. Strangely, transferability isn't even mentioned as one of the "drastic changes to current law" even though this is indeed a big change to Measure 37.

One which benefits Measure 37 claimants. So if you're one of them, head on over to the Yes on 49 web site, which does speak the truth about Measure 49.

Get the facts. Claimants who follow the "express lane" (1-3 homes) or "conditional path" (4-10 homes) options will be able to transfer their development rights to new owners.

Don't believe the ill-informed Measure 49 opponents who are spewing the lie that Measure 37 waivers won't be transferable. Do believe the real estate and land use lawyers at Davis Wright Tremaine LLP who have put up an informative "Potential Impact of Ballot Measure 49 on Existing Measure 37 Claimants."

They say that under Measure 49 the waivers will run with the land and be transferable. This will be good news to buyers who either want to build their own home on Measure 37 property, or want to be assured that they can add on to a home built by a Measure 37 claimant.

Measure 37 claimants also should read a brief, clearly stated discussion of vesting in relation to HB 3540 (which became Measure 49) and the upcoming November vote on this Measure 37 fix. This is a memo written by Ralph Bloemers of the Crag Law Center. Download memorandum_on_vesting_for_the_public_7_24_2007.pdf

"Vesting" occurs when development has reached a certain stage and the owner has the right to continue development and put the property to use as intended. (Read Bloemers' memo for a more complete legal definition).

It's almost certain that some Measure 37 claimants who want to put more than ten houses on their property, or pursue commercial/industrial development (which would be prohibited by Measure 49) are hoping to get vested before December 6 – when Measure 49 will go into effect if approved by voters.

Bloemers suggests caution. There's a "good faith" requirement for vesting. If you know that a change to a land use law is around the corner, you can't plow ahead with your development, pretending that you aren't aware of what's coming.

In sum, under the common law, property owners with unvested Measure 37 claims may not circumvent the impending legislative fix to ORS 197.352 by moving to establish a use that will be impermissible under the proposed new law.

Even if a use meets all of the common law “vesting” requirements and becomes a fully established “non-conforming use,” that use may be subject to a number of limitations as described above. The potential for future litigation makes ownership of a fully vested nonconforming use a burdensome and perhaps risky proposition.

The Davis, Wright, Tremaine lawyers offer similar advice:

If a claimant has valid waivers but has not begun construction, at this point it would be risky to move forward. Because the "vested rights" doctrine is a form of estoppel under the equitable powers of the courts, the good faith of the landowner will be in question.

After the passage of HB 3540 and the press coverage associated with it, one can imagine a court concluding that any landowner would be on notice of potentially significant changes to the relief available under the waiver system.

Plus, it's a cool housing market at the moment. Measure 37 went into effect during a time when "get rich quick" was a real estate mantra. Things have changed. Waiting a few months before beginning development generally would make good financial sense.

So far from Measure 49 being the end of the world for Measure 37 claimants, as OIA would have them believe, in truth it's the beginning of a sunnier day. There are quite a few pluses for claimants in Measure 49.

Again, get the facts. Make up your own mind. Once you do, I'm confident you'll vote YES this November.

Measure 49 opponents aren’t fighting fair

Figures. Those who brought Oregon the unfairness of Measure 37, which elevated the property rights of a few over the rights of the many, are at it again – fighting Measure 49 unfairly.

This is a much-needed fix for Measure 37 that's going to be voted on in November. It limits large subdivisions and protects our state's farms, forests, and groundwater.

The ballot measure language drafted by the 2007 legislature says just this. But truthfulness isn't part of the Oregonians in Action game plan. So they've filed suit in federal court challenging the language that'll be on the ballot.

I read the lawsuit. I couldn't find where they quoted HB 3540 (which became Measure 49) and showed how the ballot measure language is at odds with the bill. There's just a bunch of verbiage about the language being inaccurate, unfair, and underhanded.

Methinks the pot is calling the kettle black.

The Measure 49 ballot measure language says:

RESULT OF 'YES' VOTE: 'Yes' vote modifies Measure 37; clarifies private landowners' rights to build homes; extends rights to surviving spouses; limits large developments; protects farmlands, forestlands, groundwater supplies.

RESULT OF 'NO' VOTE: 'No' vote leaves Measure 37 unchanged; allows claims to develop large subdivisions, commercial, industrial projects on lands now reserved for residential, farm and forest uses.

Exactly right. I've read every word of HB 3540. I've read an accurate summary of how Measure 49 works. The legislature's language is true; the opponents aren't willing to face that truth head-on.

Over on a NW Republican blog post about Measure 49 someone commented, "Have you read the ballot title? It might as well ask voters 'Do you love your mother?'"

Well, the ballot title is:

MODIFIES MEASURE 37; CLARIFIES RIGHT TO BUILD HOMES; LIMITS LARGE DEVELOPMENTS; PROTECTS FARMS, FORESTS, GROUNDWATER.

Yes, Oregonians do love their mothers. They also love farms, forests, and groundwater. And they don't want large developments to destroy what they love. So you can see why Oregonians in Action is afraid of telling Measure 49 like it is.

I've written before about Measure 49 truth and lies. A quick comparison of the Yes on 49 campaign and Oregonians in Action web sites reveals who is dedicated to truth, and who to lies.

The Yes on 49 folks make it easy to read factual information about Measure 49. They have the stories of real people who are being harmed by Measure 37 claims. By contrast, OIA just throws out emotionality that has no basis in fact.

One example: they keep saying that the "express lane" option of Measure 49 won't really allow Measure 37 claimants to build 1-3 homes on their property. The most recent OIA newsletter stretches the truth like taffy:

While the supporters of Measure 49 will tell you that it's easy to qualify for three homesites under Measure 49, they are wrong. In fact, very few claimants will qualify for three homesites under the bill, and if the Oregon appellate courts interpret Measure 49 in the way they should based on how the bill was written, no property owner whose land is zoned for exclusive farm use (EFU) will qualify for three homesites. This point should be clear – if the Oregon courts read the law as it is written, NO ONE ON EFU ZONED LAND WILL QUALIFY FOR THREE HOMESITES.

Have you no shame, Dave Hunnicutt and comrades? That's two big "If's" in three sentences. Please, talk about Measure 49 as it is written, not about how your conservative little minds envision Oregon courts ruling on it.

The language of HB 3540 is clear. A Measure 37 claimant qualifies for up to three home sites if their waiver entitles them to the number being requested. All they have to do is supply a few pieces of information to the state. Their claim isn't "wiped out," as OIA falsely says.

Over on Peter Bray's truth-telling Land Use Watch blog, a post about the OIA lawsuit stimulated this right-on comment:

I am very happy they are bringing this suit. I am even happier that they are doing so in federal court.

Now they will have to come out and state exactly how the ballot title is inconsistent with the provisions of the Measure. I followed this bill through the legislative process; I have done line by line analyses of the Measure to identify where OIA finds the evidence it rattles off about the Measure.

Now they have to tell us, well before the election, and well before their advertising campaign begins, just what it is that is wrong, misleading, and unconstitutional about the bill.

They won't be able to toss out misleading, inaccurate, and wilfully misleading statements to frighten voters.

Each and every time someone says there is no fast track and that a person will not be able to build the one to three homes the Measure provides for, I ask, and I ask repeatedly, SHOW ME WHERE IN THE MEASURE I CAN FIND THE WORDS, PROVISIONS, AND/OR SECTIONS OF THE MEASURE that support their kneejerk responses.

So far, no one, not one single person or group has been able to answer this very simple statement. If it is so easy for them to find, it really ought to be easy for them to point out to a poor dumb person such as myself.

The Measure 49 opponents are running scared. This is excellent news for the clear majority of Oregonians who want to have the property rights of everyone in this state preserved.

And are going to vote for Measure 49 this November.

Measure 49 truth and lies

It's strong words to call someone a liar. But I'll do just that. The Measure 37-loving Oregonians in Action folks are spreading lies about a carefully crafted effort to restore fairness and balance to Oregon's land use laws.

Measure 49, which will be voted on in November, doesn't bear much resemblance to OIA's misleading descriptions of it. This is reason enough to say "Yes on 49," because the group that misled Oregonians about Measure 37 is at it again with Measure 49.

People are fed up with the fiction that Measure 37 was meant to allow claimants to build a single home on land that pointy-headed bureaucrats had decreed, "This shalt be farmland, forever and ever."

The reality is much different, as a bunch of Measure 37 horror stories demonstrate. So I'm confident that voters won't fall for OIA dirty tricks again. After being fooled once, it's going to be a lot tougher for OIA to play the Poor Dorothy English game this time around.

For one thing, truth-tellers like Peter Bray over at Land Use Watch won't let OIA get away with their habitual disrespect for facts. Peter already has demolished the first pack of OIA lies here and here.

I note that Peter calls OIA's statements about Measure 49 "falsehoods" and "mistruths." True enough. But these guys aren't dummies, though the over-the-top screaming style of the OIA web site can leave that impression.

No, David Hunnicutt and his cronies know what they're doing. They realize they can't win on the issues, because 61% of Oregonians want Measure 37 to be either repealed or fixed. And that number is only going to go up as accurate information about the effects of Measure 37 is provided to voters.

I've been trying to do my part. Salem Monthly published my "Rural Wells Threatened by Measure 37" piece. Our neighborhood is fighting a proposed 42 home Measure 37 subdivision on groundwater limited farmland. It's precisely the sort of unneeded dangerous development that Measure 49 will limit.

Like I said in a letter to the editor, "Well users have property rights, too." Measure 37 allows a claimant to take away the right of people already living in an area to have water come out of their taps. Without water, a rural home is just about worthless. Measure 49 will help prevent this by allowing a maximum of three homes on groundwater limited land.

Lots of people who voted for Measure 37 are regretting that they did. Check out this YouTube video that features a neighbor of ours, Don Dean. He's a Republican who didn't know what he was getting when he checked "Yes" on the Measure 37 ballot. This November, he'll be remedying that by voting Yes on Measure 49.

A tangled web of Measure 37 deceit

It'd be comical if it wasn't so serious – the games Measure 37 claimants play when they get desperate to build 42 homes and wells on groundwater limited farmland.

Today I opened up the newspaper and saw that my name had been used vainly in a letter to the editor from Greg Eide, one of the owners of 125 rolling acres near us that would make a beautiful vineyard if greed wasn't overriding honor and common sense.

Common sense, because this Measure 37 claim is a horrible financial proposition. A Marion County report has proven that the area has water problems. Forty two more wells are almost certainly going to dry up existing wells and springs.

And guess who has senior water rights? The people already living here, including the Spring Lake Estates neighborhood association, which will act strongly to protect the spring-fed creek that feeds our commonly-owned lake.

So someone would be crazy to buy a lot in a Measure 37 subdivision when (1) they don't have transferable development rights, and (2) will be first in line to have their well shut down when, as is likely, surrounding water users start to have problems.

Regarding honor, read my Statesman Journal online response to Eide's letter.

Veeper and others, good comments. Glad I waited a few hours to respond to my name being used vainly in Greg Eide's pitiful attempt to justify the selfish greed of he and his fellow Measure 37 claimants.

Yes, Mr. Eide is one of the applicants who wants to put 42 homes, and wells, on groundwater limited farmland that Marion County's own water experts said shouldn't be developed until an extensive Hydro Study is conducted.

Contrary to Eide's misleading assertion, Marion County staff admitted that they simply rubber stamped the applicant's "fuzzy math" attempt to throw a 92 acre lot that isn't even part of the subdivision into an average lot size calculation.

That sneaky effort to subvert the county groundwater ordinance resulted in an average lot size of 5.05 acres, just above the 5.00 cutoff, below which a Hydro Review of the area is required. The Marion County Planning Commission saw through this game-playing, recognizing that the actual subdivision would have an average lot size of three acres (five usually is needed to support a well in this groundwater limited area).

So a Hydro Review was required. And Eide, Laack, and his partners agreed to conduct this assessment, using their hydrogeologist, Malia Kupillas. They said, "We'd never do anything to harm existing water users." Yeah, right. Words are cheap. Honor is expensive.

A price Eide and Laack weren't willing to pay, because their Hydro Review was failed by an independent consulting firm hired by Marion County to review the Hydro Review. Repeat: FAILED. The firm said it's likely that surrounding wells and springs will be harmed by the subdivision.

The groundwater ordinance calls for a one to two year collection of new water data in this circumstance -- a Hydro Study. However, the County Commissioners ignored this law. So contrary to what Eide said, actually the commissioners broke the law. They didn't follow it. We'll prove this when we win our appeal.

Main lesson here: you can't trust Measure 37 claimants to do the right and honorable thing. They're out to make money, even if it hurts people already living in an area. This is why it's so important to vote for Measure 49 this November.

The one thing Eide was honest about was his conclusion. Notice how he's only concerned about how many houses he can cram onto 125 acres. "Ooh! Money, money, money! Give me more!" He and his partners don't give a rip about neighbors' wells going dry, or the springs that feed Spring Lake not flowing any more.

Yes. Write the County Commissioners. Tell them they made a big mistake by playing political games with the water we and our neighbors rely on.

We and our neighbors who've formed a Keep Our Water Safe committee often are accused of being anti-development. And even more – socialist. One of the Measure 37 claimants told me that I must love Cesar Chavez, since I hate free market capitalism so much.

"Dude," I wanted to tell him, "you're way off the mark, just like your subdivision plans." I come from a family of businesspeople (mostly men, but some women too). I was reading National Review and William Buckley almost as soon as "Dick and Jane."

As noted now and then on this blog, Conrad Hilton, the hotel man, was my great-uncle. And godfather. (Before asking me for money or free rooms, let me assure you that he left me nothing when he died . "Uncle Connie" gave me a loan when I started a health food store in San Jose in the late '60s, but believe me, I had to pay every dime back to him.)

So I know something about what a real developer is like. As a kid I spent quite a few hours listening to adult conversation about Uncle Connie's deals. Most importantly, I got to know Conrad Hilton as a person, as my great-uncle.

I can tell you, he'd be aghast at the lack of honesty and honor being demonstrated by Laack, Eide, and the other would-be Measure 37 subdivision builders. These guys said that they would never go ahead with their plans if neighbors would be harmed by more wells going in.

Now, their own water report was assessed by independent experts and the conclusion was, Yes, existing users likely will be hurt. Where's the promise of Laack and Eide now? Forgotten. Like I said, to them money trumps honor.

My great-uncle wasn't perfect. His life, told in his autobiography "Be My Guest," testifies to that. But in a final chapter he talked about being honest through thick and thin. I wish every Measure 37 claimant would take these words of Conrad Hilton to heart.

Be Honest: What I have in mind is something more than the negative virtues of not cheating, not lying, not stealing. It is a bold, direct, open stand for the truth as we know it, both to ourselves and others. My mother had two old-fashioned quotations she dished out with our oatmeal.

The first was Shakespeare: "To thine own self be true, and it must follow as the night the day, Thou canst not then be false to any man." The second was Sir Walter Scott: "Oh, what a tangled web we weave, when first we practice to deceive."

Once you start it, there's no place that deception can stop – and of course it has to start with self-deception, even if it's only the self-deception of believing we can get away with it.

Vote for Measure 49 this fall. Don't let them get away with it.

Another Measure 37 outrage

Over on the spanking fresh "Yes on 49" web site (nice job, Kari Chisholm of Mandate Media) there's a Stories page where Measure 37 horror tales are told.

There's only eleven there now. The proposed 125 acre, 42-lot subdivision on groundwater limited farmland near us in south Salem should be one of them. Along with other Oregon land use travesties that make you think, "How could they try to get away with this outrage?"

Lots of they's in Oregon are much more concerned with money and politics than fairness and respect for our state.

Oregonians in Action. Big timber companies and other large claimants. Republican state legislators who dug in their heels on fixing Measure 37 this session (which is why we're having to vote on Measure 49 in November).

Add two members of the Marion County Board of Commissioners to that list. Sam Brentano and Patti Milne have never seen a Measure 37 subdivision they didn't like, even if the county's own water experts found that it poses a significant threat to existing water users.

Last Wednesday the Board had on its agenda our request to reconsider their horribly ill-advised decision to approve the Laack subdivision. The Board went against the Marion County Planning Commission and its own groundwater ordinance when the development was given an OK even though an assessment of the area's water supply came up with a "No way!"

I wrote the reconsideration request for our neighborhood's Keep Our Water Safe committee. I not-so-humbly have termed it a staggering literary work of land use appeal genius. It's wonderfully well written, logically presented, and highly persuasive.

If you have an open mind.

Which, unfortunately, Sam Brentano and Patti Milne don't. Without a word of explanation they dismissed my five pages of objections to a legally and ethically senseless decision.

And here's the worst part, the most outrageous outrage. Commissioner Janet Carlson pointed it out at the Board meeting:

This issue is complicated by the Measure 37 referendum [Measure 49]. If this wasn't the case, different decisions might be made.

Thanks for telling it like it is, Commissioner Carlson.

But you're being generous toward your colleagues when you said "might." It's obvious that "almost certainly" would be more accurate. Obvious, because this was the big concern of Brentano and Milne at the meeting where the Laack subdivision was approved.

They were deeply concerned about whether the Measure 37 applicant would be able to move ahead with the subdivision if a Hydro Study of the water situation was required, as the county ordinance demands.

They were told that a Study would extend well past the effective date of the Measure 37 fix (Measure 49), which would mean that only three homes could be built on this groundwater limited farmland.

So Brentano and Milne voted to allow 42 more wells in our neighborhood, even though independent water experts hired by the county said this would put surrounding wells and springs at high risk. They cared a lot about the Measure 37 applicant. They didn't care at all about the rights of hundreds of people already living here.

That's an outrage.

The county commissioners are acting in a quasi-judicial role when they hear appeals of land use decisions. Their first and only duty is to look at the facts in the case and do what the law demands. In this instance the Measure 37 applicant agreed to conduct a Hydro Review assessment of the area water supply, as required by a county ordinance.

The applicant also agreed to submit the Review to an independent hydrogeological consulting firm that serves as a peer reviewer for Marion County. The applicant's attorney even urged the commissioners to rely on the advice of the peer reviewer, assuming that the advice would be favorable to the Measure 37 claimant.

It wasn't. The Hydro Review failed. The county groundwater ordinance demands that either the subdivision plans be shelved, or a one to two year Hydro Study involving the collection of additional water data be conducted.

Brentano and Milne picked a third purely political option: tell us and our rural neighbors, "we don't care if your wells go dry; we just want to try to help Leroy Laack, Greg Eide, and the other claimants get their subdivision built before the Measure 37 fix goes into effect."

Voters of Marion County, keep that sentiment in mind come county commissioner election time.

Do you want to be represented by people who have such little respect for the rule of law? Who bend their votes to fit their personal politics, rather than the facts? Who make decisions for the benefit of a few who want to make money instead of the many who want their wells not to go dry?

We're going to appeal this decision. Outrages that are this outrageous can't be allowed to stand.

[Update: We appreciate the support from some other outraged bloggers. Take a look at Loaded Orygun's "Shafting in progress on M37 claim" and The ZehnKatzen Times' "What about Brian and Laurel?" It's not about us, of course. We just represent hundreds of neighbors who are concerned about their water.]

Salem Monthly publishes what Statesman Journal wouldn’t

[Next day update: I'll give the Statesman Journal credit for printing my letter to the editor today, "Well users have property rights too." I'd rather have had 500 words than 200 words to make my case, but thumbs-up to the S-J for giving me this smaller soapbox after they rejected my bigger one.]

This is why we need alternative news outlets. So stuff that's too edgy for the mainstream press gets out of the street. In the case of my Measure 37 subdivision opinion piece, out into the blue Salem Monthly boxes sprinkled around downtown.

I picked up a copy of the July issue yesterday in the alternative Coffee House Café, appropriately enough.

Turning to page 8, I saw myself staring back at me below a "Rural wells threatened by Measure 37 subdivision" headline —though thankfully just my head and shoulders, not the full body publicity photo that I'd sent off to the editors, which was shown with the online story.

I look excessively stiff and serious in that posed shot. I'd had it taken for the back cover of my serious philosophical book about Plotinus.

Figuring that wells going dry because of over-development deserved a fairly solemn visage, I emailed the photo off to Salem Monthly. Along with a heartfelt thanks for printing what the Statesman Journal wouldn't feeling.

The 500 word piece Salem Monthly snapped up was rejected by Salem's non-alternative newspaper. I was told that it was too critical of the county commissioners, Sam Brentano and Patti Milne, who approved the subdivision against the advice of Marion County's own water experts.

Well, it seems to me that the opinion page is precisely the place for well-deserved criticism. I didn't write anything that wasn't either undeniably true or strongly supported by factual evidence.

So kudos to Salem Monthly, which isn't exactly Salem's equivalent of Willamette Week yet – but is getting closer with every issue.

This month's articles about downtown Salem were excellent. I liked how "Downtown Facts of Life" told it like it is: (1) Downtowns are dirty, (2) Downtowns are often noisy, (3) If they're successful, downtowns are crowded.

It's encouraging to me that more panhandlers and street musicians are showing up in downtown Salem, along with spiked hair, black clad, Goth-type young people. Thank god, at least someone is filling the sidewalks.

Maybe someday the title of my tongue-in-cheek "Why Salem is better than Portland" post will have some serious reasons behind it.

A staggering literary work of land use appeal genius

(Couldn't think of an original blog post title. Brain fried from writing brilliant land use appeal document today. Plagiarism credit goes to Dave Eggers.)

If you ever wanted to know why a Measure 37 subdivision on groundwater limited farmland shouldn't be approved — and I know there are a few land use nerds out there in the blogosphere who eat this stuff up — today I wrote five pages that would even convince Dave Hunnicutt, President of Oregonians in Action.

That's how good my reconsideration request to the Marion County Board of Commissioners is. If you don't believe me, read it and be convinced that the commissioner's 2-1 decision to approve a 42 lot development in the south Salem hills was deeply flawed. Download reconsideration_request3.doc

It took me a couple of hours to write this afternoon. Laurel and I have been going back and forth on a reconsideration request. We tried to ask for a reconsideration at the Board of Commissioners June 20 meeting during the public comment period, but were rebuffed.

I'd written up six minutes of beautiful convincing arguments (you get three minutes to make a public comment). But I'd only gotten about six seconds into my talk before the chair and county attorney shut me down. How were we supposed to know a reconsideration request had to be in writing?

We're just land use activists trying to keep our neighborhood's wells from going dry. We're part of what the Bus Project's Jefferson Smith calls "the coalition of the benevolently irrational."

Meaning, we spend many hours and many dollars fighting to stop a Measure 37 subdivision for no reason other than it's the right thing to do. True, the creek that could go dry if the subdivision sucks up water that supplies Spring Creek flows through our property.

But the benefit we'd get from protecting the groundwater is far, far less (monetarily, at least) than the millions Leroy Laack and his partners hope to gain from selling 42 lots.

That's why we're "benevolently irrational." I spent the bulk of a sunny summer afternoon glued to my word processor when I could have been doing something a lot more pleasant.

So the next time someone leaves a comment on one of my Measure 37-related posts along the lines of, "You're a selfish Prius-driving, property rights-hating, I've got mine-ing jerk who doesn't want anyone else to enjoy a rural lifestyle like you do," (I get comments like that frequently) I'm going to point them to this post.

Yeah, I sure am selfish. I spend tons of time trying to fight this threat to our neighborhood's groundwater even though winning this battle will benefit my wife and me minimally. We don't live right next door to the proposed subdivision, though some of our friends do.

If their wells go dry, we'd be seriously bothered. So that's a big part of our "selfish" motivation—helping others.

And as for that enjoyable rural lifestyle, the past few months a big part of it has involved sitting in Marion County hearings, researching well problems in our area, organizing neighbors, fundraising for a Keep Our Water Safe committee, and writing up reasons why the subdivision shouldn't be approved.

Most recently, brilliant reasons. I should have the first year of law school waived for today's reconsideration appeal beauty. Here's hoping that the Marion County Board of Commissioners will recognize a staggering work of land use appeal genius when they see it.

Seriously now (as if I wasn't before), we've got the law, facts, and common sense on our side. Like I say at the end of my five pages:

Please reconsider your decision. We and over a hundred neighbors want to have our water protected. We're not against development. But we're definitely against excessive development that dries up our wells and lake.

Measure 37 gets a horse killed. Stop the madness.

A miniature horse belonging to the 11-year old daughter of a woman fighting an adjacent Measure 37 claim in Yamhill County has been killed—shot through the eye with a pellet gun.

The News-Register headlined its story about the multiple shootings (another horse was injured) "Land-use feud colors shooting probe." A week after Michelle Michelsen filed a LUBA appeal on the 12-lot proposed subdivision next to her property, the horses were shot.

Pretty darn suspicious. Not surprisingly, the investigation is centering on John Kroo, the Measure 37 claimant. The newspaper story says:

Before she opted to take the case to LUBA, which could lead to a lengthy delay, Michelsen said she got a letter from Kroo warning there could be "consequences" if she continued to throw up legal roadblocks. She told the News-Register she turned the letter over to law enforcement officials.

She said she decided not to pursue the threat issue further, however, after the county sent Kroo a letter warning him against engaging in any direct contact with her with regard to their land-use dispute.

Given that backdrop - and the fact the horses were grazing in a remote pasture, unlikely to attract the attention of outsiders and requiring the perpetrator to climb over a fence to gain access - the Measure 37 fracas quickly came to her mind when she discovered the horses had been shot.

Now, it's possible that someone had another reason for shooting a horse in the brain. But that's unlikely.

Regardless, this is an opportunity for everyone involved in the debate over the fate of Measure 37 to step back and consider how they're contributing to an atmosphere where passions too often outweigh reason.

I'll start with myself. I often blog about Measure 37. I sometimes go over the top in my language when I'm seriously irritated about a land use injustice. But that's rare. Almost always I focus on facts, not raw emotion.

And I'm proud that I get along with Leroy Laack, the Measure 37 claimant whose 42-lot subdivision we and our neighbors are fighting. He and I disagree about his development plans. We agree about the need to remain as civil as possible, even in the midst of heated appeal hearings.

A lot more blame for inflaming property rights passions has to go to Oregonians in Action. At the moment their web site is unnaturally calm.

However, not too long ago it was filled with large fonts, red "ink," and exclamation point-filled warnings that the legislature was about to take ALL YOUR RIGHTS AWAY!!!!! Which wasn't true at all.

The bill they were up in arms about, HB 3569, is dead. It would have put a hold on large claims until the fall vote on a Measure 37 fix. I wasn't wild about it, but I give a lot of credit to Reps. Brian Clem and Vicki Berger for seeking the middle ground on a polarizing issue.

Shock! A Salem Democrat and a Salem Republican got together and came up with a mutually agreeable bill. What's shocking is that this should be such a shock. Bipartisanship used to be an Oregon hallmark.

Not any more, by and large. And especially not with Measure 37 reform.

It's an open secret that Republican moderates in the state legislature say privately that Measure 37 needs to be fixed. However, publically they still are being yanked around by the Republican leadership and Oregonians in Action.

So some of the blame for creating a climate where horses get killed over Measure 37 falls on Republicans who won't move an inch on a ballot initiative whose failings are so obvious, it needs to be shifted by a mile.

A Measure 37 fix should have been passed directly this session, not referred to the voters. Now we're going to have to suffer through more than four months of the-sky-is-falling rhetoric. Mostly from the pro-Measure 37 side, I'll predict.

Hopefully the death of a little girl's horse will wake Oregonians up to the need to reform Measure 37 so it doesn't cause more senseless conflict between neighbor and neighbor.

Michelsen said that Kroo was "like a father" to her before their land use dispute.

Before Measure 37 changed everything, Michelsen said, "He told me he did not want to see anybody develop the land. I said, 'That's great. I'm a country girl, and I want the country to be the country.'"

Most Oregonians agree, I'm pretty sure. We'll find out in November. Until then, let's ratchet down the extreme rhetoric on both sides of the Measure 37 debate.

One horse killing is way too many.

Measure 37 “bridge” to election day goes too far

Don't get me wrong: I appreciate the effort of Reps. Brian Clem (D-Salem) and Vicki Berger (R-Salem) to put a hold on big Measure 37 subdivisions before they do irreparable damage to Oregon's farm and forest lands.

But this bridge to the November vote on HB 3540, a much-needed Measure 37 fix, goes too far. I'll explain.

My wife and I are leading a fight against a Measure 37 claim that seeks to put 42 homes on groundwater limited farmland near our home. Independent experts hired by Marion County agreed with us that there isn't enough evidence of water availability to justify approving the Measure 37 subdivision.

But Marion County commissioners Sam Brentano and Patti Milne did anyway, because they were worried that Leroy Laack, the claimant, wouldn't be able to get his development vested before the November vote on the Measure 37 fix.

This is why a hold on large subdivisions is needed.

Too often between now and November political gamesmanship, like what Brentano and Milne played, is going to trump the law, like Marion County's own groundwater ordinance, which they ignored (it requires that a one to two year Hydro Study be conducted under these circumstances).

So it makes sense to put a hold on large Measure 37 claims that lack building permits until the voters have had a chance to express their opinion on whether Oregon's farmland, forestland, and groundwater limited areas should be paved over with subdivisions.

House Bill 3569 does more than that, however. Rep. Berger touted the best part about her bill in a Statesman Journal story:

"This puts a hold on the most valuable land in the (Willamette) Valley," Berger said. "Let's hold off on those big developments in those farmlands where the results are permanent."

Three cheers for that. The problem is, HB 3569 includes some changes to the state's land use laws that are a permanent structure, not a temporary bridge. Here's a summary of the legislation. Download house_bill_3569_summary.doc

Note that:

Rights to develop 1- 3 lots in an approved waiver located outside urban growth boundaries are transferable. Section 2(1), 2(2).

No matter what happens to HB 3540 on the November ballot, transferability approved for 1 - 3 lot waivers under HB 3569 remains valid.

Transferability lets a Measure 37 claimant transfer development rights on a lot to a buyer. Without transferability, it's very unlikely that buyers could get financing in order to build a home. Currently, courts have ruled that a Measure 37 right stays with the claimant, not the property.

The Measure 37 fix would change that, which is good for claimants. But to get transferability it's fair that some of the worst aspects of Measure 37 be done away with—such as the ability to build large subdivisions on irreplaceable farm and forest land.

HB 3569 offers permanent transferability for 1-3 lots with no corresponding permanent fix for Measure 37 problems. This makes the bill one-sided.

Claims greater than 10 lots are limited to 10 lots until December 6, 2007. Then the limit is lifted unless voters approve HB 3540. In fact, all of HB 3569 "sunsets" on December 6, aside from the transferability that has been granted to 1-3 lot waivers.

So a part of the bridge that benefits Measure 37 claimants remains in place, while the parts that benefit the much more numerous neighbors who would be affected by Measure 37 claims go away. That doesn't make sense.

If HB 3569 has any chance of passing (Oregonians in Action and 1000 Friends of Oregon both dislike the bill) it's got to be simplified and made a true bridge to the election.

I'd strip out everything but a hold on claims for over 10 lots. That accomplishes the goal stated by Rep. Berger in the newspaper quote: preserving farmland from permanent destruction.

Oregonians in Action going insane!!!! over Measure 37 moratorium

If you believe the Oregonians in Action and NW Republican web sites, A BILL TO PUT A HOLD ON MEASURE 37 CLAIMS FOR A FEW MONTHS IS GOING TO CAUSE THE END OF THE WORLD!!!!!!

And MAYBE WORSE!!!!!!!!!!!

I've never seen so many exclamation points and large fonts used for so little reason. I just left a comment on the NW Republican blog post about the moratorium that Salem Reps. Vickie Berger and Brian Clem supposedly will introduce tomorrow.

Dude, you need to lay off the exclamation marks!!!! And red fonts. The world isn't coming to an end. My understanding is that the hold on Measure 37 claims will limit claimants to what they'd be able to do under the HB 3540 fix: three homes on farmland or groundwater limited land, or via the "express lane option," and ten homes otherwise.

[Update: Loaded Orygun has seen a summary of the moratorium bill, HB 3569. Check it out. It looks pretty much like what I said above, allowing what the Measure 37 fix would permit, if approved by voters. The bill isn't available from the legislature's web site at the moment.]

That's eminently reasonable. Why should a rich developer be able to rush ahead and put hundreds of homes on irreplaceable farmland or forestland, when the voters of Oregon likely are going to say, "No way" this fall?

Like I said before, the lies keep coming from Oregonians in Action. They 're saying:

We have just learned that State Representatives Vicki Berger (R-Salem) and Brian Clem (D-Salem) are introducing a bill tomorrow that will place an absolute moratorium on Measure 37 claims.

In other words, regardless of where you are in the process, Berger and Clem's bill will stop EVERY MEASURE 37 CLAIM IN IT'S TRACKS!

If you have spent thousands and thousands of dollars on your Measure 37 claim, Berger and Clem's bill will WIPE OUT everything!

But then there's the next line:

We don't have a bill number yet, so we don't have all the details.

Actually, I suspect they don't have any of the details. However, facts never stopped Oregonians in Action. That's how they conned voters into believing that all Measure 37 would do is allow a few sweet old ladies like Dorothy English to build a home on their property.

The truth is just a touch different.

As, I bet, the proposed moratorium will be from what the breathless folks at OIA and NW Republican are making it out to be.

We live near a 42-home proposed Measure 37 subdivision that the Marion County Commissioners just approved—even though the county's own independent water experts said that there isn't enough evidence to justify allowing the development.

This is exactly why a hold on large claims is essential. There's going to be a rush to get big subdivisions underway, no matter how much harm they cause to neighbors and the environment.

Urge your state representative and senator to vote for the moratorium. And thank Reps. Berger and Clem for doing the right thing. I'll steal a line from the OIA web site and change just one word.

Please call Representative Berger at (503) 986-1420 and Representative Clem at (503) 986-1421 and tell them their idea is irresponsible! terrific!

Measure 37 subdivision truth vs. fiction

First, the good news: I looked fine on yesterday's KATU (Channel 2) news story about the Marion County Board of Commissioner's horrendous decision to approve a 42-lot Measure 37 subdivision that we've been fighting—along with forty other neighbors.

My previous television news appearances have left me watching the clip with a Who the hell is that old disheveled geezer? in my mind. So when I got a call from Dino, the KATU cameraman based in Salem, asking if I could meet him at the subdivision property in 45 minutes, I had time to primp up.

Now, the bad news: in the story Commissioner Sam Brentano spoke the same fiction that he did at the Board of Commissioner's meeting on Wednesday where he and Patti Milne ignored scientific evidence and their own Planning Commission in voting to approve this groundwater disaster in the making.

Here's what Brentano told the KATU reporter:

You follow the rules that are in place here. And the Planning Commission erred in trying to change the rules on the developer.

That's wrong, as I'll explain below. What I said is correct:

It [the decision] was just purely political, and made an effort to get this subdivision built, no matter what, before the Measure 37 fix in the fall is approved by voters.

(OK, I should have said, "approved by voters in the fall," but when a camera is running, the brain doesn't work quite as smoothly.")

Wednesday the commissioners started off with an extensive discussion of whether Leroy Laack, the Measure 37 claimant, could get his subdivision "vested" before the ballot referral vote on HB 3540-C.

The conclusion was that he might be able to if the application was approved; he couldn't if a Hydrogeological Study was required, as independent geological experts hired by Marion County had recommended and the county's groundwater ordinance demanded.

So the facts ended up being massaged to fit a pre-determined conclusion by Brentano and Milne—a really disgusting way to treat the public. The Keep Our Water Safe Committee that my wife chairs had raised $22,000 to gather and present evidence that the subdivision posed a threat to our water supplies. Our neighborhood association chipped in another $5,000.

We deserved an honest forthright decision from the Board of Commissioners. We didn't get it. Brentano had it backwards: we, the subdivision opponents, had the rules changed, not the developer.

We helped convince the independent experts that there's inadequate evidence of adequate water for the subdivision. That should have triggered a one to two year Hydro Study where new information is gathered about the area's hydrogeologic situation.

Instead, Brentano and Milne came up with a completely B.S. fabricated reason for approving the subdivision.

Their own Planning Commission had spent nine hours considering the ins and outs of the application, eventually deciding that when the applicant threw a single 92 acre lot into an average lot size calculation along with 42 mostly two to three acre lots, just to meet a 5 acre threshold, this was a classic case of "fuzzy math."

The large lot isn't part of the subdivision. It won't supply water to the subdivision. It's in a different aquifer from the 42 lots. In other words, it's a terribly skewed (and screwy) distribution. In cases like this, statisticians agree that's it's entirely appropriate to toss out the outlier—a 92 acre lot that doesn't belong.

Marion County has never had a land use application where a developer tried to play this sort of game. Leroy Laack is the first. So Sam Brentano is wrong when he says that the Planning Commission changed the rules on the developer. There weren't any prior rules about how to handle a sneaky attempt to do a run-around the groundwater ordinance.

The Planning Commission established a rule that made sense: if a very large lot is included in a subdivision application purely for the purpose of manipulating the average lot size calculation to be more than 5.0 acres, don't include the lot in the calculation. They recognized that Laack was trying to cheat his way to a Measure 37 subdivision.

A lot of people in our neighborhood are fighting mad about what Brentano and Milne have done. These county commissioners see nothing wrong with approving a 42-lot subdivision after the county's own experts have said, "There's not enough evidence of adequate water for the development."

After the decision last Wednesday, one of our supporters said "Chutzpah has its own karma." I liked the slogan, combining as it did two seemingly disparate religions. But they do indeed each subscribe to a what goes around, comes around philosophy.

Replacements for Brentano and Milne need to be found. They're disasters — uninformed, untruthful, unashamed of trashing the property rights of the many in favor the few.

Kounty Kommissioner Karma. Hopefully it's coming to an election near us soon.

Marion County decision spreads more Measure 37 bullshit

How many ways are there to say "pissed off," "outraged," "travesty of justice"?

If I neglect to use any in this post about today's horribly political, uninformed, slanted decision by the Marion County Board of Commissioners on an appeal of a Measure 37 subdivision in our neighborhood, please add them on your own.

[Update: The Salem Statesman Journal ran a front page story about the atrocious decision today (Thursday).

It begins: "Marion County commissioners ignored their own planning commission and scientific reviewer on Wednesday when they approved a 42-home subdivision in a limited-groundwater area in the hills south of Salem."]

This morning Patti Milne and Sam Brentano, two Republican commissioners who are remarkably unashamed at showing their abhorrence for facts and love for development, no matter the cost to people already living in an area, voted to allow 42 lots on 137 acres in a groundwater limited area.

My wife and I have been leading a fight against this subdivision. We were pleased when a Hydro Review study conducted by the Measure 37 claimant (Leroy Laack) was failed by an independent hydrogeologist peer reviewer.

In other words, Laack failed to show that there was enough water to supply the subdivision without harming surrounding wells and springs. Under the Marion County groundwater ordinance, this should have triggered a one to two year Hydro Study that involves the collection of additional information via well monitoring, drilling of test wells, and such.

To her credit, commissioner Janet Carlson recognized this. She pushed to follow the ordinance and require a study. She was outvoted. Her final words were:

I'm very concerned about what this may portend for the area.

Yeah, us too. Except we're way more concerned, because we and the forty other people who have contributed to the Keep Our Water Safe Committee live out here and depend on wells. Without water, our homes are virtually worthless.

But this didn't matter to Milne and Brentano, who have never met a subdivision they didn't like, even if an independent report says "There's no evidence it won't harm existing water users." It was obvious from the outset that they were out to ignore reams of facts and blindly give Laack whatever he wanted.

I felt like screaming, watching Milne and Brentano mangle what should have been an open, rational, deliberative process. When Carlson painted them into illogical corners, you could see their pinhead conservative brains struggling to figure out how to ignore reality and get back to their dogmatic anti-neighborhood agenda.

It was painful. The public has every right to expect a hell of a lot more from elected officials.

The Marion County Planning Commission approved 27 lots but said that a Hydro Review had to be conducted before the subdivision could move forward. Laack, the Measure 37 applicant, agreed to conduct the Review, saying "I wouldn't go ahead with the development if it was going to harm the water supply of neighbors." (Yeah, right. More bullshit from a guy who I bet won't keep his word).

The Hydro Review was failed by a peer reviewer hired by Marion County. This plain and obvious fact kept being pointed out by Janet Carlson, but she was speaking to the deaf ears of astoundingly clueless Milne and Brentano.

Milne kept talking about "dueling hydrogeologists" hired by Laack and the Keep Our Water Safe Committee. She didn't grasp that the peer review process is how conflicting opinions are resolved. In this case, in our favor. Again, Marion County's groundwater ordinance requires that a Hydro Study be conducted if a Hydro Review is failed.

However, Milne and Brentano's sole goal was to get the subdivision vested before the Measure 37 fix that's been referred for a likely November vote is enacted. They didn't care about whether neighboring wells go dry, or whether they're following the Planning Department rules.

Many times I felt like throwing my notebook at them and storming out of the hearing room with a loud This is horseshit! Which, it was. Brentano and Milne had no valid reasons for approving the subdivision other than their own 100% pro-development, anti-environment political philosophy.

We and our neighbors figured that even the notoriously conservative Marion County Commissioners wouldn't be so crass as to ignore an official peer-reviewed conclusion that inadequate water supply evidence is available to justify approving the subdivision.

But they surprised us. Brentano and Milne were even more dismissive of the rights of property owners currently living in the area than I expected. Come election time, voters need to keep this in mind. They only care about their next contribution from the Asphalt and Concrete Manufacturers' Rape the Earth Fund—not whether our wells go dry.

We're hoping to get some help from 1000 Friends of Oregon for an appeal. They owe us more than a little assistance, because this case is a poster child for why the Measure 37 fix (HB 3540) is desperately needed.

It was pointed out today that if the fix is approved, only three homes would be allowed on a Measure 37 claim on groundwater limited land. Yet the Marion County Commissioners just approved 42 homes on lots averaging three acres in an area where five acres is considered necessary to support a well.

Lesson: you can't count on politicians who suck on the pro-development teat to protect the property rights of those who live near a Measure 37 claim, even when an independent study says "There's not enough water."

Some people are immune to reason and facts. George Bush is one. Sam Brentano and Patti Milne are two.

At times today I felt like throwing in the towel. But that would be letting the purveyors of bullshit have the last word, and I don't think I'm willing to do that.

We'll do our best to stop this subdivision and protect our groundwater. As one of the folks on our side said this morning, "Karma is going to come back and bite Milne, Brentano, and Laack."

I agree. You can get away with greedy ignorant selfishness only for so long. The universe has a way of making things right in the end. Come this fall, I'm expecting that one of those ways will be passage of the Measure 37 fix.

Then, we need to get Milne and Brentano out of office. They're an embarrassment both to Marion County and open-minded Republicans.

Oregonians in Action ramps up lies about Measure 37 fix

Well, it's going to be a long, lying summer. And fall.

Legislation to fix the seriously flawed Measure 37 has been referred to the voters. It'll probably be on the ballot in November. From now until then Oregonians in Action will be spewing out lies about House Bill 3540-C.

I don't know how these guys can live with themselves. Their web site shamelessly features garbage about the Measure 37 fix. I don't know who writes this crap. Pretty clearly, no one who's actually read and understood HB 3540-C.

Which I did this morning. All twenty-four pages of the engrossed version. Not easy going. But not all that difficult to understand, unless you're purposely trying to mislead the public, like Oregonians in Action seems to be.

By contrast, 1000 Friends of Oregon has a decent Governor's office summary of HB 3540-C. I've massaged this PDF document into a Word file, and also included it as a continuation to this post. Download 1000_friends_of_oregon_summary_of_hb_3540.doc

After reading the actual legislation and perusing the 1000 Friends summary, I'm prepared to call out Oregonians in Action with a big loud Bullshit! Here's what OIA says and what the truth is:

Bullshit #1. OIA says:

If you have filed a Measure 37 claim, HB 3540C requires you to start all over again. Your claim, along with the time and money you've spent, will be wiped out, unless you can vest your rights to use your property before December, 2007.

No, that's wrong. I heard Lane Shetterly, director of the Department of Land Conservation and Development (DLCD), testify before a legislative committee that Measure 37 claims won't have to be refiled. Some additional information may be required of claimants, but that's a far cry from being "wiped out."

HB 3540 says that claimants will be sent a notice that explains their options, identifies any information that the claimant must file, and provides a form for the claimant's use. Tell me how that is "starting all over again." No filing fee will be required, so far as I know.

The fast track option in HB 3540 (see below) doesn't require any proof of loss, which makes it much easier for claimants than the current Measure 37 law. And it includes transferability (as does the conditional path), which makes getting a construction loan viable. Thus this reform measure helps claimants as well as neighbors.

Bullshit #2. OIA says:

If you choose to refile your Measure 37 claim, you will be limited to a maximum of 3 new homesites, and you might not even get these! LCDC will decide how many homesites you qualify for, if any, will tell you where those homesites will go on your property, and will not allow homesites larger than 2 acres.

Again, wrong. There are two options open to those whose claims haven't vested (that is, who haven't made substantial progress on developing their property): an Express Lane and a Conditional Path.

The Express Lane is a quick and easy route to up to three home sites, counting any home(s) already on the land. All you have to do is show that you had the right to have that many houses when you bought the property.

So the only way you won't get those home sites is if you don't have a valid Measure 37 claim. If you want more than three, you've got to head down the Conditional Path.

This allows up to ten home sites, with a maximum of twenty statewide for anyone with multiple claims. To qualify you've got to prove that you've lost value because of a land use regulation(s). A qualified appraiser will determine how much your property was worth a year before the regulation was enacted and a year after.

The difference, adjusted for inflation (via the Treasury Bill rate), is how much you get to be compensated. Thus it isn't DLCD (which OIA calls LCDC) that determines how many home sites you qualify for, but the appraisal. If it takes six home sites to make things right, that's what you get; if ten, you get ten; if none, you still get three by heading back to the Express Lane.

If a Measure 37 claim is on high value farmland/forestland, or a groundwater restricted area, it's limited to three home sites. Only in these cases is a home site limited to two acres—not otherwise. In such instances home sites have to be clustered to maximize suitability of the remaining land for farm or forest use.

It's a stretch to say that this means DLCD "will tell you" where to put your home sites. The legislation does that, which will have to be approved by the voters. If they want farm and forest land protected, Measure 37 claimants will have to respect the will of the people. Isn't that sacred to Oregonians in Action?

Bullshit #3. OIA says:

If you have industrial or commercial property, or if you want to make a commercial or industrial use of your property, your claim is wiped out, and you get nothing. Not only that, you lose all protection against new land use regulations. It will be back to the old days, where your property could be taken without any opportunity for you to do anything about it!

It's true that the Measure 37 fix doesn't allow for commercial or industrial claims. Gosh, you won't be able to put a convenience store or a gravel pit on your farmland. Sorry. But this isn't a "taking" of your property. It's a "giving" of livability to your neighbors.

Further, there's a big misconception that land use regulations always reduce the value of a piece of property. Several research studies have shown this isn't the case in Oregon. Read the truth here and here.

The prohibition only applies to industrial/commercial claims that are unvested. Claimants who've vested their rights as of the effective date of the measure (likely 12/6/07) can proceed with commercial/industrial uses.

Bullshit #4. OIA says:

If a new land use regulation is adopted that takes your property, you will have to pay for lawyers and appraisers and jump through every hurdle the state and county can throw at you to get your property back. But what's worse, you will also have to pay for the state and county's lawyers and appraisers to try and defeat your claim! That's right – they'll take your property, and then charge you tens of thousands of dollars to give it back!

Again, what's up with "takes your property"? A land use regulation doesn't take property any more than an IRS regulation takes your bank account, or a red light takes your time.

Earth to OIA: we live in a world of limits. Nobody can do exactly what they want to do, all of the time. Grow up. Bawling babies want everything done for them now. Part of becoming a mature human being is recognizing that, as the Rolling Stones famously put it, "you can't always get what you want."

Yes, HB 3540 sets out a process for filing new claims. If you want 4-10 home sites and go down the Conditional Path, you'll have to pay an appraiser. But the cost of the appraisal, up to $5,000, can be added to any loss you've incurred from a land use regulation—so you'll be repaid in the end.

There's no requirement to hire a lawyer. And I have no idea what the frothing typing fingers at OIA had in mind when they wrote about a claimant having to pay for the state and county's lawyers and appraisers. Methinks this is just throwing the B.S. out into cyberspace and seeing what will stick.

I hope, very little. I'm confident that this time around voters will see Measure 37 for what it is: an attack on what we Oregonians love the most about our beautiful state. Cities that are cities and rural areas that are rural—not sprawl that sprouts subdivisions on irreplaceable farm and forest land.

HB 3540 isn't perfect. Not by a long shot. I would have been much happier if the legislature had fixed Measure 37 directly, rather than referring this bill to the voters.

But it's a heck of a lot better than doing nothing. Ignore the lies of Oregonians in Action. Get fired up to vote "yes" in the fall.

Property rights come from society, not God

Fanatic supporters of Oregon's Measure 37 like to say that "property rights come from God." That's crazy. Why would God create the earth and living beings then hand over control of land to particular people?

The air we breathe in order to live isn't owned by individuals. The water we drink in order to live isn't owned by individuals. (Oregon law says "all water from all sources of supply belongs to the public.")

So why should the ground that provides the food and other resources we need to live be controlled by individuals?

It shouldn't. Property is part of the commons that is essential for survival of our species. One aspect of the commons, says Peter Barnes, is that it's made up of stuff we inherit:

It is not made up of anything that you or I or some corporation makes. One can present a very good case that if you make or invent something, it should be your private property, at least for a while. This is an entirely appropriate way of rewarding people and businesses for value they create and risks they take. But air and water and ecosystems and DNA and language and legal as well as political institutions are not made by any individual or corporation. They are gifts we inherit, either from nature or from the collective efforts of millions of humans.

Gifts. Grace. God. Words pointing in the direction of two more "Gs": Gratitude and Graciousness. What doesn't come from us and isn't produced by us isn't ours to do with as we please. We should be grateful to be able to use it for however many years of life we've been given.

And gracious enough to pass it on to the next generation in as good or better a condition as we found it. Barnes says:

To bring our discussion back to the problems of impermanence and inequality: it seems to me that if anything is divine, it ought to be those things we inherit together and should pass on, undiminished and more or less equally, to future generations. Permanence should trump impermanence. Broad benefit should trump narrow benefit. The commons should trump capital.

Last night Laurel and I went to an Envision Oregon confab in Salem sponsored by 1000 Friends of Oregon and some other groups. A few Measure 37 supporters found their way into this gathering of mostly progressive land use planning-friendly types.

A few were at Laurel's table. She said they were impossible to reason with. Rigid, unwilling to seek any middle ground. Just like the Republican legislators who refused to vote for the much-needed Measure 37 fix (HB 3540-C) that's been referred for a November vote.

This is the problem with a "divine right" mentality. You start to think that if you own property, you're sitting on the right hand of God, entitled to do with your land whatever pops into your sanctimonious head.

Gravel pit! Landfill! Massive subdivision! If I'm thinking it, it must be good and holy!

Bullshit. This sort of delusional World Revolves Around Me ideation stops public discourse in its tracks.

Jefferson Smith of the Bus Project was the final Envision Oregon speaker. He was great. Witty and right on. Smith told a story about moderating a debate between Ross Day of Oregonians in Action and Bob Stacey of 1000 Friends. He asked them: "Can you imagine making any changes to land use laws that would please your opposition and you also could live with?"

Stacey had lots of ideas. Day, none. "To him," Smith said, "property rights come from God. They're inviolable." Well, he's wrong.

I seriously doubt whether the Ten Commandments came from God. But let's say they did. There's nothing in them about whether it's right or wrong to build a subdivision on prime farmland or in a groundwater limited area. That ethical decision has to come from society, not God.

What we need, said Smith, is to move beyond the politics of Me to the politics of We. The sum of self-interests does not equal the public interest. Amen to that.

He also urged advocates for wise land use planning and the approval of HB 3540-C to recognize the difference between using power and sharing power. "Imagine two sports teams with these different philosophies," he asked. "Which will win?"

I'm all for reaching out to those with differing views and trying to find middle ground. In short, I'm a bleeding heart progressive.

But this doesn't work when the other side is stuck in Divine Right concrete. Oregonians in Action and a good share of its followers will never budge an inch on what they conceive as God-given property rights.

So they need to be overpowered at the ballot box by what Smith called a Coalition of the Benevolently Irrational.

We're all the folks in Oregon who aren't out to make a buck by trashing our state's beautiful landscape. We're willing to give something up for the common good—money, time, whatever it takes to hand on the commons to the next generation.

That sounds pretty darn divine to me.

Measure 37 backroom deals outrage Republicans. Not me.

House Bill 3540B, the Measure 37 fix that passed the Oregon House several weeks ago, has been a lot like Oceanic Airlines Flight 815: Lost.

Thanks to the NW Republican blog, a likely reason why has been YouTube'd up. In a speech on the House floor, Rep. Bill Garrard decries backroom deal making that has been going on between the Governor, Democratic legislative leaders, and so-called special interest groups.

Garrard, a Republican member of the Joint Land Use Fairness Committee that came up with the Measure 37 fix, opines that the closed door negotiations over amendments to HB 3540B are aimed at getting "special interest groups to keep their mouths shut" when a ballot referral is sent to the voters.

I don't know what he means by that. The Oregon Farm Bureau supports the bill. So does 1000 Friends of Oregon. Maybe some sweeteners are being put on the table to please large timber companies with Measure 37 claims, but I doubt it.

What I hope is happening is an effort to squeeze out a few more House member votes so a ballot referral isn't necessary. It'd be much better to pass a Measure 37 fix directly, rather than asking voters to approve a complex bill that will be reduced to a simplistic sound bite by lie-loving Oregonians in Action.

At any rate, it's comical to hear a leading House Republican decry backroom deals after so many years of Queen Karen Minnis sitting on her Speaker of the House throne and issuing edicts from on high. Give me a break, Rep. Garrard.

A commenter on NW Republican put it concisely and neatly:

Politicians making deals! I am shocked -- SHOCKED, I tell you!

I left my own comment:

Polls show that two-thirds of voters want Measure 37 repealed or fixed. So how is fixing it a concession to special interests?

Actually, it's a concession to the public interest.

The main special interests here are the big timber companies and other large corporations who bank-rolled Measure 37 and are now cashing in by filing claims to put subdivisions on farm and forest land.

Get out in the real world. Come out to my neighborhood and talk to people who voted for Measure 37 and are now dead set against it, now that they are facing a 43-home (and well) claim in a groundwater limited area that's also farmland.

Those who already live here have rights too. Measure 37 ignored us. HB 3540 helps restore our rights. It's a decent bill but needs to be made even stronger. Kudos to the governor and legislative leaders for trying to do that.

I assumed that is what they're trying to do. If not, anti-kudos to them.

Measure 37 lies and the assault on reason

Political lies don't surprise me anymore. But they still bother me. Especially when the lies are aimed at destroying Oregon's livability.

Measure 37 was largely supported by large timber companies and other fat cats. They're out to build subdivisions on irreplaceable farm and forest land. Now Oregonians in Action, a puppet that springs into action when corporations pull the strings, is running full page ads in the Portland Oregonian in an attempt to keep those subdivisions alive.

Sunday's ad was headlined, "We're not greedy developers." Yes, you are. Check out the list of major Measure 37 donors. Note that Stimson Lumber Company wants either $269,000,000 from the taxpayers of Oregon, or have this state's land use laws waived.

Greedy developer? Oh, yeah.

But Oregonians in Action (OIA) can't use Stimson Lumber Company as their poster child. Wouldn't look very cute. So they dredged up Tom and Gloria Gilbert (and their little white dog), who want to partition their seven acre property into nine new parcels.

This would be a very long post if I deconstructed all of the lies and half-truths in the ad. OIA likes to talk about how legislators are disrespecting Oregonians because they want to fix some of the worst flaws in Measure 37, a move favored by more than two-thirds of voters.

Actually, it's OIA that lacks respect for citizens, because they think we can be fooled once again by simplistic rhetoric substituting for facts.

For example, the ad says:

And if you own a business, House Bill 3540B allows state and local governments to take all of the value of your property without compensation – all of it!

A flat-out lie. This one line should be enough to stop everybody in Oregon from ever believing a word said by OIA. Here's a summary of HB 3540. The full bill, currently HB 3540B, is here.

It prohibits Measure 37 claims for industrial or commercial purposes. You can't put a pumice mine in a national monument, like one Measure 37 claimant wanted to do. The bill has nothing to do with taking all of the value of existing businesses. OIA should be ashamed of using such a deceptive scare tactic, if it weren't beyond shame by this point.

More deception:

Not only that, the bill would contain new provisions that allow state and local governments to steal 25% of every Oregonian's property value every five years.

Fact: new Measure 37 claims would have to show a loss of value caused by land use regulation of at least 25% over five years. That is, you actually have to prove that you've been financially harmed to a significant degree before you get to belly up to the Measure 37 trough.

Again, that has nothing to do with "stealing" a quarter of "every Oregonian's property value every five years." Show me how that is going to happen, OIA. If you can't, admit that your campaign plan for defeating this Measure 37 fix is simple: Lie, then lie some more.

It's disgusting. For an example of rational vs. irrational approaches to discussing this issue, check out the side by side arguments by Democrat Rep. Greg MacPherson and Republican Rep. Kim Thatcher in today's Salem Statesman Journal.

Macpherson talks about the bill and the problems it is intended to solve. Thatcher throws up smoke screens about how Republicans were shut out of meetings. So what?

In a recent issue of TIME magazine there's an excerpt from Al Gore's new book, "The Assault on Reason." The OIA ads are a perfect example of this. Don't talk facts; talk emotion. And not even honest emotion. Make up falsities, then express outrage over the falsehood.

Gore says:

Americans in both parties should insist on the re-establishment of respect for the rule of reason…The persistent and sustained reliance on falsehoods as the basis of policy, even in the face of massive and well-understood evidence to the contrary, seems to many Americans to have reached levels that were previously unimaginable.

Yesterday my wife went to a meeting where Measure 37 was discussed. She was told that a Measure 37 subdivision has been built in Polk County. Neighboring wells already are going dry. We need to check out the details to confirm that this is true.

We do know for a fact that a 42-home proposed Measure 37 subdivision near us failed to prove that there is adequate water for that many new wells in the groundwater limited area on which it would be built. For some reason Oregonians in Action didn't put this story in its ad.

The legislature's Measure 37 fix would protect groundwater limited areas from that sort of over-development. We and our neighbors have had to spend $24,000 to do that on our own. Funny. Oregonians in Action didn't mention that in its ad.

Lies. Half-truths. Deceptions. It's going to be a messy six months until the Measure 37 fix ballot referral is voted on, if that happens in November. Hopefully the legislature will pass out an immediate fix and avoid a further assault on reason in Oregon.

Hollywood beauties vs. Oregon beauty

This long-time Oregonian (thirty-six moist years) is willing to admit there's a lot to like about southern California. Hollywood in particular, where my daughter, son-in-law, and one month old granddaughter live.

Last weekend I stood in line at the trendy yogurt shop next to the M Café, scene of my previous intimate encounter with Kirsten Dunst--if you agree with me that sitting at two tables separated by a sheet of glass is "intimate."

This Hollywood visit, no movie stars. But there was an attraction right in front of me. Two, actually.

I couldn't help noticing the twenty-something girls as I struggled to keep my eyes focused on the menu above the counter: "Hmmm. What three toppings do I want? Kiwi, strawberries, blueberries, pineapple…"

The sight nearer at hand was more enticing, especially since we'd just finished a super-tasty M Café macrobiotic meal. The girls were blond, high-heeled, and scantily dressed. In short, they looked like most of the females in Hollywood.

More uniquely, they were remarkably affectionate in a Girls Gone Wild fashion. "I really like you," one said to the other. How sweet, I thought. She then proceeded to hug and fondle her friend. And not just in a sisterly fashion.

How marvelous, was my next thought. I'm not in Salem anymore, that's for sure.

I could stand in line for eternity at a Salem yogurt store and never, ever see the enticing sensuous display of affection (or whatever it was) that came my way last Saturday.

The yogurt was good. My memories of the Hollywood beauties, even better.

But here's the thing: as much as I enjoy spending a few days in la-la land, there's no way I could live down there.

By Sunday afternoon I was ready for fir trees and mountains again. My daughter took me to the LA farmer's market before my plane left. Loved all the fresh fruits and vegetables. Hated the asphalt and concrete.

A few hours later I plunked down into my aisle seat on the 1:35 Horizon flight from Burbank to Portland. My window seat mate and I didn't exchange more than a few pleasantries until we got to Mt. Shasta.

"Wow! Look at that," he said to me. "Beautiful." He wasn't sure what mountain it was. We agreed that it must be Shasta. A few minutes later he blurted out a few more Wow's.

He said, "I've never been to Oregon before." I told him, "Well, I'm pretty sure we're over it now."

"It's amazing," he said, not taking his eyes from the window. "I grew up in Missouri. I can't stand southern California any more. I think I'm going to call my wife and tell her, Honey, I'm not coming home. You're going to have to come up here."

"Good plan," I said. "Oregon's a great state."

The rest of the way into Portland I pointed out various sights. And also told him why Oregon looked so relatively unspoiled as we started to make our descent.

"We're almost to Oregon's largest city. But look at all the farmland and trees. That's because we have land use laws that try to keep the city citified and the country countrified. You aren't seeing sprawling subdivisions like you would if you were flying into Phoenix. Or Los Angeles."

But then I told him the bad news. Wanted to give this prospective new resident both sides of the Oregon story.

"Unfortunately, voters got conned into voting for Measure 37 a few years ago. If it isn't fixed, Oregon is going to start looking a lot more like southern California, because subdivisions will be allowed to sprout on farmland and forestland."

He turned to look at me. "That'd be terrible," he said. "I sure hope that doesn't happen."

Me too, my friend for a two-hour flight.

Thanks for giving me the chance to see Oregon through your eyes for a while. If it wasn't for you, I would have had my nose in a book instead of looking out the window with you at this state's marvelous beauty.

Legislators, do the right thing. Both for everybody already living here and for new residents who don't want Oregon to look like the asphalt jungle they just escaped from.

Fix Measure 37. Now. Have the guts to do what needs to be done to keep Oregon Oregon, not southern California.

I've got no problem with importing beautiful yogurt-loving Girls Gone Wild'ish babes from down south. But let our neighboring state have the endless subdivisions and traffic jams, not us.

Please.

Measure 37 fix: let the lies begin from OIA

Oregonians in Action (OIA) conned voters into approving Measure 37 in 2004. Now that the Oregon legislature is on the verge of approving a ballot referral that would fix this horribly flawed law, the OIA con-machine has fired up and is starting to spew more lies.

Consider the ridiculous statement on the OIA web site that HB 3540 "effectively kills Measure 37." That's garbage. What this fix does is kill the ability of claimants to trample the property rights of people already living in the area, since it limits developments in groundwater limited areas to three houses.

The same limit applies to high value farmland and land suitable for a vineyard. Neither Oregon, nor the country as a whole, can afford to outsource our food supply. So HB 3540 will keep alive our state's agriculture industry, which is seriously threatened by the thousands of Measure 37 claims that seek to turn farmland into subdivisions.

Actually, HB 3540 facilitates the Measure 37 process for the claims that voters in 2004 were most concerned about: those that want to build a house or two on land that got rezoned before the owner could start construction. These people now are put on a fast track to Property Rights Heaven.

What HB 3540 does is restore some much-needed balance to Oregon's land use policies. Measure 37 gave away the farm (literally) to individual property owners who were prevented from developing their land by a government regulation.

But there's a whole other group of owners who had their property rights trashed: the community surrounding a Measure 37 claim. An Onward Oregon post, "What if the Measure 37 fix doesn't pass?," does a good job of explaining how the value of a piece of property is largely determined by the familiar real estate adage, location, location, location.

First, and most important, we start by recognizing that most of the value of land is created by other people–not by the owners, but by the people who live nearby. That's why an acre in downtown Portland is worth a lot more than an acre in Podunk–because there are a lot of people in downtown PDX. Most of the value of that acre has nothing to do with how it can be used, but in how it is located. This locational value is all, therefore, created by other people, not the landowner.

Last Sunday Oregonians in Action paid for a full-page ad in the Oregonian. They splashed Dorothy English's photo on the center of the page and spouted their usual misleading verbiage.

The ad says, "Measure 37 gives everybody the exact same right – the right to use the land they could when they bought it." No, it doesn't. Nor should it.

Consider the case of the Measure 37 claim in our neighborhood, a proposed 137 acre subdivision that would put 43 homes (and wells) on groundwater limited farmland. Leroy Laack, the claimant, bought the property in the early 1970s. Oregon's land use laws are the main reason his land is worth a lot more than he paid for it.

As the Onward Oregon article points out, the entire community is responsible for creating an increase in property values. Location, location, location. Up to now, Oregon has remained a great place to live because of our wise land use laws.

Laack, like all citizens of the state, has benefitted from those laws. So it's impossible for him to use the land in the fashion he could when he bought it, because Oregon has changed in many ways since the early 1970s. If all the land between Salem and Laack's claim had been developed into subdivisions during that time, like he wants to do, his property would be worth much less.

But Measure 37 is all about greed, not responsibility. Taking, not giving. Me-me-me, not us-us-us.

Again, HB 3540 is a step toward getting Oregon back on a more balanced track. Laack's neighbors, which includes my wife and me, also want the right to use our land the way we could when we bought it. That includes being able to get water from our wells, a right that Measure 37 subdivisions on groundwater limited land would take away.

People bought homes out here because they wanted to live in the country. They bought knowing that adjoining land was zoned for exclusive farm use. They bought expecting that if this EFU designation ever were changed, it only would be after a fair and open public process.

Measure 37 changed all that. It took away the rights of the many people already living near a Measure 37 claim. It created a special privileged class of property owner who doesn't have to follow the rules that neighbors do.

The OIA ad claims that "Oregon gentlemen" stood up for Dorothy English and helped pass Measure 37. What a bunch of crap. Those "gentlemen" were large timber and other companies who wanted to make money off the backs of ordinary Oregonians, who'd see their state's irreplaceable beautiful farmland and forestland sprout with McMansions.

For example, the Money in Politics Research Action Project found that Stimson Timber Company contributed $30,000 to pass Measure 37. The company now has claims totaling $269,000,000. Pretty good return on a political investment. Which puts the lie to the OIA ad:

Yet when these men [the "gentlemen"] try to protect all our rights, they are labeled as "big timber companies" and attacked for being greedy.

Well, Oregonians in Action, here's the thing: they are big timber companies. And they are greedy. Stimson Timber Company has over 200 Measure 37 claims in Washington County.

Don't be taken in by the OIA lies. I hope the legislature has the guts to pass a Measure 37 fix that doesn't go to the voters. I've said before that a ballot referral is going to be a battle of competing sound bites, not the best way to form sound public policy.

Especially when much of the sound produced by the pro-Measure 37 zealots consists of lies.

Wise analysis of HB 3540, the Measure 37 fix

I hate Measure 37. Other people love it. In between love and hate is where most Oregonians are, according to Richard van Pelt. He's a Friends of Marion County activist who likely has forgotten more about Oregon's land use policies than I know now.

Yesterday he sent me a thoughtful email about the Measure 37 reform effort embodied in HB 3540, which has passed the House and is to be considered soon by the Senate.

Richard had read a comment I'd left on Russell Sadler's Blue Oregon post: "The M37 clock is ticking. Extend it while we debate it." [second comment from the top]

I said that a better title would have read, "Suspend it while we debate it." It seriously bothers me that currently HB 3540 allows Measure 37 claimants to push ahead with their development plans, which includes large subdivisions on farm, forest, and groundwater limited land.

I'm still bothered, even after reading Richard's persuasive arguments concerning why a wholesale attempt to overturn Measure 37 wouldn't be wise.

This is markedly different from a suspension of building permits until the voters have had a chance to speak, which hopefully still will happen, with the aid of the Oregon Senate and a Republican or two.

Here's Richard's message to my wife and me, mildly edited for clarity.

I read with interest Brian's comments at Blue Oregon. Maybe I am too close to this to offer disinterested analysis, but I am going to take a stab nonetheless.

For the want of a nail, the shoe was lost; For the want of a shoe the horse was lost; For the want of . . . the kingdom was lost. For the want of a single vote in the House, substantive rejection of Measure 37 was lost.

True? Yes, but only in the narrowest sense. Outright rejection was a plausible outcome; whether it was possible, probable, or prudent are other questions altogether. To focus on rejection requires prudent consideration of other questions, other choices, and other options.

1. What are the consequences of a partisan outcome?
2. What defense, what justification could we mount in the face of an initiative in 2008?
3. What is the history of voter reaction to legislative rejection of initiatives?
4. Is there any evidence a 2008 initiative would be conducted on any higher level than the 2004 Swift-Boating of John Kerry?

Those of us who believed that Oregon is the product of the stewardship principles that are the foundation of our land use policies endured major setbacks with the passage of Measures 7 and 37. It is not for us to feel any shame for our values; to the contrary, it is more important than ever that we highlight those values in the coming months.

Oregonians are divided over land-use and have been so since SB 100 was enacted more than 30 years ago. Measures 7 and 37 passed because they aroused specious issues. Voters were convinced that something called property rights had been taken from property owners.

Property rights, takings, and perceptions of eminent domain dominate the debate. Lost in the discussion are those values that comprise our land-use goals. To even mention these goals is to risk being tagged as a communist (at least in the eyes of former State Representative Jeff Kropf).

Attempts to bridge this divide risk being termed demagogic when suggestions require some compromise or acknowledgement of problems by Measure 37 supporters. So far apart are we, and so unwilling are Measure 37 proponents to even engage in meaningful dialogue that no mutually beneficial common ground can be found. It serves no purpose for each side to hunker down in their respective trenches and hurl epithets at each other.

When such an impasse exists, we should not be surprised when a political solution is offered. HB 3540 is such a solution. HB 3540 is a partisan bill only because Republicans remain in thrall to the financial backers of Measure 37.

HB 3540 does not gut Measure 37. Instead, it folds Measure 37 into the land use program by providing relief to property owners adversely affected by land use zoning, precisely as Measure 37 intended. HB 3540 seeks to avoid the tragedy that would occur if there were an attempt at outright repeal.

Hubris is the overweening pride that lies at the core of tragedy.

Oregonians have that sense of overweening pride about the initiative process. The initiative process exists because voters saw the Legislature as an adversary. When the Legislature tampers with the perceived will of the people, the confrontation becomes even more adversarial, political, and irrational. Bad law then happens; the authors of the Federalist Papers would see such a process as justifying the system of governance they came up with.

On our side, it would be hubris to use partisan measures to reject Measure 37 without addressing the underlying concerns that property owners have. In the welter of rhetoric, some property owners have reasonable concerns.

Through neglect and our own hubris, we, over the years, let the vision of land use policy become driven by rules that, as I read them, are mere foolish consistencies. Our foolish or neglectful adherence to the pre-Measure 37 status quo has brought us to this point. Our own defeat and our own hubris require compromises that we might have avoided if we had acknowledged our imperfect system earlier.

This is the hard reality we have to accept. We lost with Measure 7 and we lost again with Measure 37.

Oregonians do not like to have initiatives thrown back at them. This is the hubris aspect - the people can do no wrong. You were not at the rally two weeks ago. There was an orchestrated protest by Ross Day at which Measure 37 supporters behaved more like louts than citizens. They clearly telegraphed their lack of any substance.

They could not even tell the difference between law and constitutional amendment. Ross Day was there and made no attempt to keep his dogs under the porch. And it is all on video.

Politically it would be disaster to refer the Measure back to voters. When the death with dignity measure was re-referred, even some who voted against the measure, voted in favor of it, just because it was an offense to their pride to have the initiative process questioned. Thus we are left with HB 3540.

If you refer the original measure back to the voters, all of the canards that led to its passage will be trotted out once again. We would lose once again. I know that Oregonians are not happy with how Measure 37 plays out on the ground, but I am not at all convinced that a gunfight at the OK Corral would turn out in our favor.

Look at the Bill from the perspective of someone trying to mount a reasoned campaign against its passage. Try to conceive a campaign that did not expose its greed. They don't like it because it tightens up on loss of value. The Bill makes what you can do hinge on the extent of the loss of value. This is not in Measure 37 and is the basis for all of the egregious claims that have been filed.

OIA (Oregonians in Action) is in a bind, and hopefully about to take their last drop. They cannot put anything on the ballot until November of 2008. I may well be in la-la land, but November of 2008 is not going to be a high water mark for groups, association with which would cause us to go home and take a long, very hot, shower.

There is a chance that we could get a moratorium and there is a chance we could get immediate passage. We were one vote shy in the House of being able to accomplish this. When the debate was taking place, the R's attempted to suspend the Rules; they lost and it was clear from then on that the D's had the votes. Significantly, five R's were either excused or left. Those who left represented areas for which significant second thoughts about the Measure are in play.

It was no happenchance that Macpherson focused on Clackamas County to show how bad Measure 37 has been. When the vote came down, at least one Clackamas County rep. failed to be there for the vote.

Now that it is out of the House, if we could put pressure on R's in the Senate, including Jackie Winters, we might get even more. I hope people call their Senators and tell them how happy they are with 3540. If they do, and if we can peel off an R or two, then we could amend 3540 on the floor of the Senate to make the bill effective immediately. It could then go back to the House where, with shown bi- partisan support, we could get the extra vote we need.

In the special election, you will see the following groups:

1. Those who despise Measure 37 and all that it stands for, preferring the world prior to 37 and 7.
2. Those who love Measure 37 and see no problem and that any meddling is a roll-back of the voters' will.
3. Those who voted against Measure 37, but see this as a workable compromise.
4. Those who voted for Measure 37, but find that the reality on the ground is not what they voted for.
5. Those who voted for Measure 37, but acknowledge that opponents have some valid points, and see this as a workable compromise.

Groups 1 & 2, so blinkered from the perspective of groups 3, 4, and 5, fall into the intransigent "strange bedfellows" category. Whatever are they to do? They cannot and will not work together.

Group 1 will appeal to group 3, while group 2 attempts to corral groups 4 and 5. Otherwise the two hard line opponents will be working to the same end.

Groups 3, 4, and 5 have common ground and will work on groups 1 and 2. That is, until they realize the intransigents are not critical to the outcome. The intransigents have marginalized themselves from the debate. Given the numbers, they are immaterial to the outcome.

This should be our strategy in the coming months: build a coalition of Groups 3-5. The way I read the Bill, I will have a sign in my yard saying "Protect Your Property Rights - Vote Yes."

WHAT THE BILL PROVIDES

HB 3540 is no longer about Measure 37. The people approved Measure 37 in order to correct what they were told was elemental unfairness in the land use system. Measure 37 ceased to be Measure 37 and became part of Chapter 197 of the Oregon Revised Statutes. HB 3540 does not repeal the language of Measure 37 now in the Chapter. The House of Representatives, in response to concerns raised by citizens and political jurisdictions passed a Bill that came out of a joint committee with a do-pass recommendation. It came out on a party line vote.

The amendments to Chapter 197 that this Bill provides are generous.

1. If you filed a claim, you can build up to three homes without having to justify loss of value. This provision galls many of us, but it takes many of the potential opponents out of play. It will also sit well with voters who had concerns about fairness.

2. If you want to build more than three houses, you have to establish a loss in value. You can build up to ten homes. You cannot build in excess of your loss. All of it is residential and lot size is driven by soil quality and groundwater availability. The language on loss of value will defuse many claims.

3. If you have already begun construction, you can continue under the common law vested interest standards. However, if you do, the property is not transferable.

The pivot concept in Measure 37 was loss of value. The loose language allowed property owners to set that pivot wherever they wanted. HB 3540 simply puts it where it ought to be - in the middle. The benchmarks are the year before the regulation and the year after. There has to be a 10% drop in value before a person can establish a valid claim. What they can eventually build is driven by the loss of value carried to the present day using the end of year T- bill rate.

Opponents who still think this is about Measure 37 should read the Bill. They will be hard put to state how the provisions in this Bill do not comport with their understanding of the provisions of Measure 37 without exposing their greed.

There are policy decisions in the Bill. It applies only to residential construction. It limits property size in order to preserve and protect the rural use of land for agricultural and timber use. It does not permit shopping malls, gravel pits, resorts. Supporters who thought in voting for Measure 37 that this was fair and good will get or should get little sympathy from the elected representatives; all I can say is that legislators on both sides of their respective aisles have been getting an earful to the contrary.

Most of the environmental community has taken a gag-and-accept approach. Following the floor debate, there were a couple of D's who had real problems with the Bill. They could have made left-handed speeches in favor, but did not. It is a disciplined caucus.

To conclude this all too lengthy e-mail, the Bill required compromise in order to get 31 votes in the House. With those 31 votes, it will be rammed down the throats of the R's. Hardball, but that is how politics is played. They tried to get a bipartisan product, but the R's remain in thrall to OIA, and to the real estate lobby. Now that it is in the Senate, a coordinated campaign showing how much Oregonians want this issue resolved, could make it once again a bipartisan product, that could be passed without referral to the people.

Your concern with the rush to development that could take place is well founded. "Common law vested interest" is more than a claim and more than a waiver. It is more than an architectural plan. It occurs only after final approval and after significant physical earth work had been done. And, should they proceed under this provision, anything they put up will be an illegal development. The product of their efforts will not be transferable; and I do not think the omission was inadvertent.

Time-out needed on Measure 37 subdivisions

The Oregon House of Representatives took a first step toward fixing Measure 37 today. Reform legislation will be sent on to the voters via a ballot referral, with voting to take place in September or November.

But it's not enough. A hold, or "time-out," needs to be placed on Measure 37 subdivisions to prevent a lot of damage from occurring between now and the vote.

My wife and I know whereof we speak. Along with several dozen neighbors, we've been fighting Leroy Laack's plan to put 43 homes and 43 wells on nearby groundwater limited farmland.

Today we got some good news.

Russ Bunker and Matt Kohlbecker, hydrogeologists who contract with Marion County to do peer reviews of Hydro Review reports prepared to justify development in a groundwater limited area, rejected a report submitted by Laack's consultant, Malia Kupillas of Pacific Hydro-Geology.

Here's the five page PDF report: Download peer_reviewlaack.pdf

What this shows is something pretty obvious: land designated "groundwater limited" almost always truly has limited groundwater. That's why the reform legislation limits Measure 37 subdivisions in such areas to three homes.

Yet the Marion County Planning Commission had given Laack permission to build 27 homes. He appealed, asking for 43 homes.

If our local Keep Our Water Safe Committee hadn't been able to raise enough money to hire GSI Water Solutions' Larry Eaton and Walter Burt to refute Malia Kupillas' erroneous Pollyannish contention that there's plenty of water for both the subdivision and existing uses in the surrounding neighborhood, this Measure 37 claim could have moved forward.

As will quite a few claims in groundwater limited areas between now and September or November, if legislators don't pass a companion bill to the ballot referral that puts a time-out on all Measure 37 subdivisions. Or, failing that, at least a hold on subdivisions in groundwater limited areas.

This is no joke for those of us who rely on wells. My wife and I, along with numerous others, have testified before the Land Use Fairness Committee to this effect.

But so far the only response has been a half-baked referral to the voters. "Half-baked," because it doesn't do property owners any good if a Measure 37 fix is approved after the damage to the aquifer on which they depend already has happened.

I've been critical, here and here, of the Democrats' efforts so far regarding Measure 37. However, they can bring a smile to my face if a hold is put on subdivisions. 1000 Friends of Oregon is pushing for this (about sixth paragraph down).

If you live in Oregon, please click on the previous link and follow the URL path to your state senator's email address. Email the governor also.

Tell them that unless a time-out is put on Measure 37 subdivisions, the vote next fall will be meaningless for those affected by the subdivisions that have been able to move forward during the next six months.

Measure 37 smackdown--I call legislators “chicken!”

Oh, yeah. It's Land Use Reform Raw. I've made the call out in an AP story about Measure 37, "Democrats want voters to take another stab at Oregon land use law." The final two paragraphs:

But the prospect of an endless barrage of TV, radio and newspaper adds, pitting entrenched interest groups against each other, is frustrating for some. Brian Hines, a retired property owner in Salem said he was disappointed lawmakers couldn't come up with a solution.

"I think that's pretty chicken," Hines said of Oregon lawmakers decision to send the property rights reforms back to voters. "It will come down to a bunch of competing sound bites. The situation is a lot more complicated than that."

So let's get it on, legislators—Democrats in particular, because you hold the reins of power in the capitol. I say you're chicken.

A ballot referral is a cop-out. If you believe Measure 37 needs to be fixed, then fix the damn thing. If you believe it's OK as it is, then leave it alone.

Sending a complex 42 page bill to the voters is absurd. Person after person who testified at the Land Use Fairness Committee hearings said that Oregonians didn't know what they were getting when they voted for Measure 37.

They expected that people would be able to build a home or two on their land. They didn't expect large subdivisions on farmland. But that's what's happening.

So if Measure 37 confused the voters, how is the ballot referral going to be any different? Like I said, competing sound bites isn't how land use policy should be formed.

Here's my challenge to the legislature. I'll be listening for either a "cluck, cluck" or a braver response.

Write up a companion bill to the Measure 37 referral. It would place a hold on claims for over 10 houses until the voters have spoken. No building permits could be issued.

No bulldozers could rip up irreplaceable farm or forest land, nor groundwater limited land, nor vineyard quality land.

Then let's see how legislators vote on that bill. Let's find out who supports allowing large subdivisions to be built on farm and forest land between now and November.

Democrats in the Oregon legislature are trying to take the easy way out. They know that polls show a majority of Oregonians want Measure 37 fixed. But they're chicken to fix this mess themselves.

OK. Be at least half-chicken.

Take a stand by preventing large Measure 37 subdivisions from being built between now and the ballot referral vote.

A recent Oregonian editorial said:

Right now, Measure 37 developers are rushing for building permits to put a shovel in the ground to finalize their property rights. This takes a claim past the point of no return, past the point where legislators can actually intervene and stop development gone wild.

… Everyone would have preferred a consensus fix for Measure 37, but now there's not much time left. Now Oregon just needs a fix.

The editorial was titled "Find the guts to fix Measure 37." So far, all we've seen is gutlessness from legislators.

How about some lion roars for a change? No more clucking.

Democrats fail Oregon with Measure 37 meltdown

So close. Yet so far. Word is that a single Democratic House member, who will remain nameless because so many would like to strangle him right now, refused to vote for a genuine Measure 37 fix.

[Update: He's no longer nameless, thanks to Peter Bray's post. It was an open secret, anyway.]

Thus yesterday, as I predicted, Republicans and Oregonians in Action were handed a major victory without having to fire a shot. At the very least, the Joint Land Use Fairness Committee should have passed the proposed Measure 37 reform bill so every legislator would have to vote up or down on it.

But no, the committee weenied out and added a ballot referral to the bill. Voters now will decide whether to fix the horribly evident flaws in Measure 37.

Why didn't the Democratic leadership force Republicans to vote against preserving farmland and preventing large subdivisions in groundwater limited areas? Beats me. Political incompetence is the best guess, according to more knowledgeable observers of the legislative scene than me.

It's deeply frustrating. 1000 Friends of Oregon and other defenders of this state's livability did a bad job of campaigning against Measure 37 in the first place. Now the best opportunity to reform Measure 37 has been lost.

Let's see: Democratic House of Representatives. Democratic Senate. Democratic Governor. You'd think this would have made passing a fix, an action favored by two-thirds of voters, pretty easy.

But no, the Democrat-dominated Land Use Fairness Committee spun its wheels for almost four months, trying to appease the unappeasable Republicans on the committee.

Eventually it became obvious that when Oregonians in Action and the Republican leadership (can you say "Wayne Scott"?) cracked the whip, all the Republicans on the committee were going to jump through the Keep Measure 37 Unchanged hoop.

When a House Democrat defected, the game was over. Typical. Democrats try to be collaborative nice guys who don't enforce party unity and get clobbered by a Republican united front. I don't like much about the Oregon Republican party, but at least they know how to play the legislative game.

The NW Republican blog is up at arms about this supposed attempt to repeal Measure 37. And I'm sure there will be plenty of outrage at the ballot referral expressed by property rights zealots in the state, such as Oregonians in Action.

However, I can virtually guarantee that they're breathing a sigh of relief right now. By a whisker they escaped having a Measure 37 reform bill passed into law next month.

Now claimants have eight months to acquire building permits and fire up bulldozers. Once their Measure 37 claims are vested, there's no turning them back, no matter whether the fix passes in November.

This morning I found Eric Stachon's (of 1000 Friends) quote in the Oregonian via Peter Bray's like-thinking "Oregon Democrats Fail at Measure 37 Reform!" post:

Measure 37 opponents, including planning and environmental groups, wanted legislators to resolve the issue themselves. Now, they say, claimants could rush to develop before the fall. If so, said Eric Stachon of 1000 Friends of Oregon, "it's going to prove our point — albeit at the expense of the land."

I respect and like Eric, but that's a galling comment. My wife and I, along with several dozen neighbors, have been fighting a 137 acre/43 home Measure 37 subdivision on nearby groundwater limited farmland.

If Leroy Laack gets final approval from Marion County to proceed with his plans, I can envision this subdivision being used as a "poster child" in campaign efforts to get the ballot referral passed. In my darker moments, I can even envision this being part of the game plan by Democrats on the Land Use Fairness Committee.

Let things get worse, then the voters will want to make things better. Well, Senators Prozanski and Macpherson, among others, that's a crappy way to play politics.

You had a chance to protect Oregon, and you blew it. There's a good chance your ballot referral will fail. Which means then you really will have blown it.

I believe I'm speaking for an awful lot of people who love this state and don't want to see it trashed by Measure 37 when I say:

Thanks for nothing.

[Update P.S.: If House Bill 3540 is amended somewhere along the remainder of the legislative process to remove the referral to voters, I will gladly put back all of the Legislature's Democratic members on my Christmas card list.

I hereby also promise to walk five times around the capitol (heck, maybe even 37 times) carrying a sign that says, "I was unfair to the Land Use Fairness Committee about their Measure 37 fix."

A photo of my repentance will be included with the aforementioned Christmas card. And I'll post it prominently on my blog.

Hey, isn't that motivation enough for a legislator or two (or more!) to change your mind(s) and endorse a Measure 37 fix that doesn't require voter approval?

Consider: if voters were confused about the impact of Measure 37, what makes anyone think they'll be able to understand a bill as complicated as HB 3540? The campaign for and against this fall will come down to simplistic buzz words again. Oregon doesn't need another divisive battle like that.

So legislators, do the right thing and take out the voter referral. You'll gain the respect of most Oregonians. Plus a most interesting Christmas card.]