May 18, 2005
Orchardist John Benton had the first Measure 37 claim to go through Hood River County — but he is anything but pleased with the end results.
In fact, Benton intends to take his case to court after mid-June as non-compliant action on behalf of the county. Under the new law, he has to give local officials 180 days from Dec. 12 to compensate him or restore his lost development rights. Then he can bring the issue into the legal system and recoup attorney fees.
“Government officials in this state just aren’t getting it. They appear to be saying, ‘We’ve been going down this road for so long that we aren’t going to change anything unless you force us to do it,’” Benton said.
At issue is the methodology used by the county board two weeks ago to lift development restrictions from the 53 acres of Benton property. John and his wife, Julie, bought the land in 1977 when one dwelling was allowed on every five acre tract. Benton contends that, while the county appears to be cooperative by lifting a restriction that dedicated the majority of his property for agriculture use, nothing has really changed. Any development application he now submits is tied to today’s stringent planning process. The residential allowance is not transferable to a new owner — so Benton contends that his property remains devalued.
“This is just not right. It was not the intent behind people passing Measure 37 and Measure 7 before that. They have twice said ‘enough is enough’ and these agencies need to start listening,” he said.
The authors of Measure 37 support John and his wife, Julie, taking their claim to court because the language of the new law is “clear and concise.” Government agencies are directed by the statute to restore the zoning in place at the time the current owner purchased or acquired the land. In lieu of lifting the restriction, officials can choose to pay a requested amount of compensation — $11 million in the case of the Bentons.
“The county will surely lose in this action and then they will have to pay the Bentons for pointing out to them how wrong they are,” said Ross Day, director of legal affairs for Oregonians in Action, a property rights advocacy group.
However, Dave Meriwether, county administrator, said Measure 37 makes an exception for regulations to protect public health and safety. He said that is the reasoning behind the county board requiring that any development application brought in by Benton meet modern standards, especially regarding infrastructure.
“We just can’t give a blanket approval on these claims, we have to address each application on a case-by-case basis,” he said.
Benton is concerned that county planners will use “health and safety” excuses to void his development potential. He said Measure 37 requires that basic development rights be restored so every effort should be made to ensure that happens. He said it is because of “unfairness” in Oregon land-use system that Measure 37 became law by almost a 61 percent voter margin in November. Its predecessor, Measure 7, also passed statewide by a 54 percent majority but was later overturned by a higher court because it dealt with two subject matters instead of the one allowed for a constitutional amendment.
Meriwether said the county has followed expert opinion on the issue of transferability. He said legal counsel for both Attorney General Hardy Meyers and Gov. Ted Kulongoski argue that zoning restored Measure 37 applies only to the current owner.
“We really need guidance as to how we should interpret these things,” said Meriwether.
Benton believes that his claim, and possibly those of other family members, might provide legal “guidance” that will help the county change its stance.
“We really didn’t want it to work out this way. But it’s been coming for a long time. Thirty years ago the state made it a goal to devalue most of its resource land for protection because they didn’t trust the landowner to do the right thing,” said Benton. “I think the level of trust the state has for the farmer is absolutely zero and has been for years.”
He said because of competition from foreign trade and increasing costs of regulatory mandates, it is no longer profitable for most farmers to work the land. But they are also not being allowed to develop even a portion of their property — as allowed at the time of purchase — to make ends meet or prepare for retirement.
“Our government has devalued our only true assets and now we are seeing the economic trouble that brings,” said Benton, who holds a degree in business administration with a minor in sociology.
On Monday, he took a seat in the audience to watch the county board process two other claims submitted by his elder brother and the family corporation. Charles “Terry” Benton III regained the right to have 11 homesites on 58.36 acres at the intersection of Highway 281 and Portland Drive. Restrictions against development were also waived for BLM, Inc., a collective total of 151.57 acres in various locations on Nunamaker, Orchard and Tucker roads. The newly allowed minimum parcel size on these agricultural lands will be 20 acres. Both of these approved claims have the same criteria for development as that of John and Julie Benton. All of the affected landowners are conferring with attorneys before deciding whether to accept the rights as granted.
Also present at the May 23 county meeting was Bob Benton, a fourth generation member of the farming family. He plans to testify before the legislature either this week or next as Senate Bill 1037 makes its way through the system. The bill sets out a controversial qualifying process for Measure 37 claims and is expected to be approved by the Senate but challenged in the House.