By RAELYNN RICARTE
News staff writer
October 29, 2007

The attorney who authored Measure 37 and a state official who helped craft Measure 49 faced off in Hood River on Tuesday.

“If this (Measure 49) passes, the average citizen will have no protection against government regulations in the future,” said Dave Hunnicutt, president of Oregonians in Action, a property rights advocacy group.

“This (Measure 49) is it, you have no other option. If Measure 37 remains the law of the land, it’s going to result in Southern California all over Hood River County and Oregon,” said Rep. Brian Clem, D-Salem.

Seated with Hunnicutt on the panel to speak against Measure 49 was Jon Laraway, representing the Hood River Agricultural, Forestry and Landowners Association, a property rights group. Joining Clem to voice support for Measure 49 was Mike McCarthy, president of the Hood River Valley Residents Committee, a conservation group.

The Government Affairs Committee of the Hood River County Chamber of Commerce sponsored the forum and Dave Meriwether, county administrator, served as the moderator. About 80 people attended the Oct. 23 event held in the newly remodeled auditorium of the Hood River Middle School.

“I think many people don’t understand that a Measure 37 claim is just a calculation of lost value on property; it’s not an application to build houses,” said Laraway, a third-generation orchardist in Pine Grove.

“Measure 49 will restrict runaway subdivision growth but allow farmers the option of building a home or two,” said McCarthy, a farmer/forester in Parkdale since 1980.

Measure 37 was approved by 61 percent of the voters statewide in 2004, and 54 percent in Hood River County. The law allows landowners to seek compensation when a government regulation for the public good devalues property. In lieu of making that payment, the agency can restore the development rights in place at the time the current owner acquired the land.

Measure 49 was sponsored this spring by Democrats in the Oregon Legislature as a rewrite for Measure 37. Voters are being asked to approve or reject the referendum on Nov. 6 that seeks to curb development on resource lands.

Clem was a member of the Joint Special Committee for Land Use Fairness that helped draft Measure 49. He said Democratic leaders could not accept the level of development that could have played out with 7,500 Measure 37 claims filed statewide. He said limiting home sites in the Willamette and Hood River valleys preserved farms and forest — and prevented the depletion of ground water.

“I don’t think Oregonians want prime farm land converted into subdivisions,” said Clem. “Everybody’s goal should be to return profitability to agriculture. But does paving over farm land return profitability?”

Hunnicutt strongly disagreed with McCarthy and Clem’s assertion that Measure 49 would provide claimants with an “express lane” for one to three houses. He said homes could only be built on resource lands if the property owner earned $80,000 each year from an agricultural practice.

He said all property in the state where “cattle did not have to roam 40 miles to find something to eat” had been defined under Measure 49 as high-value farmland, forest or groundwater-restricted; limiting the maximum number of homes to three. In areas where four to 10 home sites would be allowed, Hunnicutt said the average landowner would be unable to afford the process to get a claim resolved.

He said government agencies could levy a fee to review claims that factored in the potential costs to pay appraisers and hire attorneys in the event of a legal challenge. He said a court appeal was likely with every claim since anyone attending the review hearing was given “standing” to file a lawsuit.

Hunnicutt said landowners also had to prove a loss value. He said they would be required by Measure 49 to obtain one appraisal for the property that determined its value before a regulation was imposed. A second appraisal would be needed to determine the value after the use was restricted. He said two separate appraisals would be required for every rule that affected use of the land.

“It’s bad enough to fight city hall; it’s doubly bad when you have to hire your own experts and theirs too,” said Hunnicutt.

On a positive note, he said one section of Measure 49 acknowledged that some property owners in the state had been treated unfairly by Oregon’s “broken” land use system. But he said that acknowledgement was then nullified by the remaining 24 sections that essentially repealed any rights regained since passage of Measure 37.

“They (landowners) have done everything the counties and state has asked of them. They have gotten back their property rights only to possibly lose them again,” Hunnicutt said.

Clem said Measure 49 was not a perfect solution to the issues raised by Measure 37 but it is the only available option at this time. He said it would be difficult to stop a build-out of Measure 37 properties if Measure 49 failed. He said property owners would be protected from challenge once construction was underway. And that meant that farm and forest lands would be filled not only with houses, but industries and commercial enterprises prohibited by Measure 49.

“You’ve got to remember that if you don’t pass Measure 49 you have to live with Measure 37,” said Clem, who married into the Azusa Suzuki family of Parkdale.

He and his wife, Carol, spend two months each year working in the 80-acre orchard. Clem said the family qualified to file a Measure 37 claim but chose not to take that action.

McCarthy said there were 300 lawsuits filed across the state to stop the urban sprawl that would be caused by Measure 37-related development. He said the loss of farm and forest land — about 10,600 acres in Hood River County — would contribute to global warming and create both a national security and economic crisis since food production would be shut down.

McCarthy felt that is was unfair for taxpayers to foot the bill for infrastructure improvements that financially benefited a single landowner. He said local governments were required to outlay $25,000 in services for every home that was built.

“I think what people want to talk about is ‘me’ and ‘my rights.’ I don’t think they want to talk about the long-term best interests of the community,” said McCarthy.

Laraway said the scenario of rampant development portrayed by Measure 49 proponents was not playing out on the ground. He said Hood River County had received 24 development applications out of the 243 Measure 37 claims that were filed. He said 13 of these applicants sought two lots and 10 had requested one home site each. The remaining application started out as subdivision for 10 home sites but is expected by county planners to be downsized.

Laraway, who owns 97 acres, said he had only wanted to separate the property surrounding two dwellings on 15 acres from the remaining farmland. He said that would have provided his family with money to bank away for retirement and made about 13 acres of farmland more affordable to another orchardist.

“If it becomes unprofitable to farm then you need to be able to do some things to protect your value,” said Laraway. “Most farmers have all their retirement assets tied up in their land.”

Hunnicutt said it did not bode well that Measure 49 had not even been approved and its sponsors were already talking about “fixing things” at the next legislative session. He said state officials, instead of trying to find a way around Measure 37, should have spent their time helping the 7,500 claimants recover their economic losses.

“We could have done this on a bipartisan basis and we wouldn’t have to vote on it again. But the same folks who wanted to kill Measure 37 are supporting Measure 49,” said Hunnicutt.

Clem said Measure 37, at only two pages, contained ambiguities that set the stage for legal challenges. He vowed to introduce a supplemental bill himself that guaranteed landowners the one to three homes under Measure 49 if Hunnicutt’s prediction proved correct. He said the refusal of Republicans to compromise by limiting development under Measure 37 had forced Democrats come up with their own solution to the problem of rampant growth.

“There is not a good way to go forward from here without passing Measure 49 and then working on it,” said Clem. “This is about personal values versus community values.”