Planning in the West

The Legacy of Oregon’s Measure 37

When Oregon voters approved Measure 37 two years ago, they made a loud statement against heavy-handed planning, and set the stage for both a comprehensive review of the state's land use regime and copy-cat initiatives across the West. Today New West kicks off a multi-part series on the fallout of Meaure 37 and other hot-button planning issues around the region, a project underwritten by the Orton Family Foundation in conjunction with the PLACEMATTERS06 conference to be held Oct. 19-21 in Denver.

By Dan Richardson and Sam Lowry, 9-05-06

Camille Hukari’s family has been farming in Oregon’s Hood River Valley for decades, and she says she has no intention of giving up now. But she is willing to make a deal.

	ABOVE: The Hood River Valley, in Oregon, is a pastoral place — one where development plans may mean trading barns and fields for golf courses and tract housing. (Photo by Peter Marbach.) BELOW: The Hood River Valley, below Mt. Hood. (Photo courtesy of the U.S. Forest Service.)

Truth be told, Hukari would love to trade the vagaries of the pear business for some financial security. She and her family farm about 70 acres, and she believes she could sell off one six-acre parcel for home construction — a transaction that could bring as much income as 40 or 50 years of pear farming on the same piece of ground.

"That's a no-brainer to me," Hukari says, adding, "I plan on farming until I retire — but I don't plan on farming 'til I'm broke."

Thanks to the passage of Measure 37, the controversial property rights initiative that gave longtime land-owners a way around Oregon’s strict growth-management regime, Hukari will likely get her chance to make that sale.

All around Oregon, Measure 37’s roll-backs, and their consequences, are being seen on the ground and in the halls of power. Oregon, after all, has had 30 years of state-led land-use planning, a regime some say conserved the state’s livability, while others said it stifled growth. Now, following Measure 37’s ballot victory in 2004, the state and local governments have scrambled to implement the law, interpret its nuances, and set about on a grand rebalancing of property law and rights called the "Big Look."

Measure 37 was enacted on the idea that people should be able to use their land, and not have it taken by government's land-use regulations. But the new property rights law may bring about a record crop of long-resisted developments, too — everything from massive housing projects to retirement homes on previously regulated rural lots.

Lots like Hukari’s six-acre parcel in the Hood River Valley, on which she was not allowed to build a house. Under Measure 37, Hukari won her claim to roll back minimum-acreage rules passed after she acquired the parcel. Three of its acres are un-farmable, she says, and pear trees on the other three bring in an annual net of about $7,200. That same property with a house would, conservatively, sell for $350,000.

Not all orchardists are happy about the idea of their neighbors slicing up ground, building houses and introducing more, and more urbanized, people into the small valley.

Mike McCarthy, another Hood River Valley orchardist, well-known and active in conservation efforts, says that the nearby orchard lands comprise "a small area, so it doesn't take much of a trigger to make a big change. ... If (Measure 37) plays out, it could be the end of agriculture in the valley."

The Backlash Against Planning

Land can be seen as a commodity and also a foundation of individual rights, as under Measure 37. But don’t people have an interest in creating rules for livable communities, too?

Political leaders who had these questions in mind designed Oregon's planning system in the mid-1970s to protect, or disallow, farmers from making the sort of cash-versus-lifestyle calculus that Hukari finds herself making. Lawmakers drew up 19 statewide goals and innumerable resulting rules to protect farms and forests, allow for orderly development, encourage urban density and conserve natural resources.

	Links Hood River county, about HR County, official web site HR County, history Specialty agriculture US pears Valley’s Fruit Loop Fruit history, diversification Hood River City Steven Andersen, property consultant Columbia Gorge Wineries Measure 37, Starring Hood River M-37, Unresolved Legal Questions M-37, A Summary M-37, Muddy and Unresolved M-37, Out of Control M-37, Dorothy English, still fighting M-37 claims filed at the state M-37, Unresolved Legal Questions: litigation

Planners, mostly at the county level but also some state ones, attempt to achieve these lofty aims by saying no. No to houses small farming lots; no to subdivisions outside of urban growth boundaries; no to many a retirement dream house in some beautiful, quiet setting. And it's mostly worked. Where states like Colorado see vast tracts of agricultural land swallowed by housing tracts and malls and trophy homes, Oregon has preserved much of its farming and ranching heritage.

This preservation might be revolutionary, but it's been frustrating, too — nobody likes to be told no. Among the oft-hated rules in Oregon were those requiring minimum acreages and farming incomes that a person had to meet before building a house in a rural area.

Oregon voters approved a regulatory takings initiative in 2000 — Measure 7 — that told governments to reimburse landowners when land-use rules lowered property values. The state Supreme Court struck the law down on technicalities; and Oregon's political leaders failed to react to the popular will to balance land protections with property rights. So, when a similar measure came to a vote in November 2004, Oregonians approved this one, too, this time by an even higher margin, 61 percent, up from Measure 7's 53 percent approval.

Measure 37 orders local governments to compensate landowners when their property values fall as a result of land-use rules enacted after they acquired their property; or, alternatively, waive certain of the offending rules. No local governments are in a position to pay off Measure 37 claims. So the law's result is that long-term property owners are essentially exempt from many rules against developing their property.

Measure 37's upset of the state's planning goals is a transformative moment, though the actual changes will take years to play out. Few of the 3,000 Measure 37 claimants around the state have even broken ground on new developments, and several key legal questions — such as the transferability of development rights to a new owner — remain unresolved. Given the open questions, banks are reluctant to loan money for developments.

Property rights activists campaigned under the idea that Measure 37 would help small property owners make modest changes — like Hukari, or the proverbial couple who merely wanted to build a retirement home on property they'd bought for that years ago. In reality, according to statistics compiled by Portland State University researchers, claims for subdivisions (four or more lots) are double the claims for more-modest partitions (slicing a property into three or fewer new lots).

As growth in the West continues to accelerate, the importance of good planning becomes ever more obvious. With the Orton Family Foundation, New West and Headwaters News have teamed up to produce this special editorial project on planning in the West. Measure 37: The History, the Future When Oregon voters approved Measure 37 two years ago, they made a loud statement against heavy-handed planning, and set the stage for both a comprehensive review of the state's land use regime and copy-cat initiatives across the West. In this three-part series, Dan Richardson and Sam Lowry look at the history and future of the measure and it's children. Part I: The Legacy of Oregon's Measure 37 Part II: Oregon's Hood River Valley: Life After Measure 37 Part III: The Campaign Against Land Use Planning Best Practices in Planning We looked around the West for examples of successful planning processes and found plenty to be proud of. Watch this space for a series of five case studies of people and places that have made things work. Part I: Land-Blending in Breckenridge Creates "Tasteful Goulash" Part II: Albuquerque's New Urbanist Central Avenue: Citizen-Driven Design Part III: Rocky Boy's Plan Conserves as Much Land as Possible Part IV: Boise's Harris Ranch Moves Forward With Structured Collaboration Part V: Boulder Weighs the Price of Open Space Headwaters News: A Western Perspective Daniel Kemmis, a Senior Fellow at the Center for the Rocky Mountain West, looks at the politics of growth management policy and University of Colorado-Boulder and Orton fellow William Travis writes about watch-dog groups and bridging the disconnect between concept and reality. Growth-Management Politics, by Daniel Kemmis A $5 Million Growth Solution, by William Travis

Oregonians have more than 170,000 acres on which they're filing for regulatory relief. Each claim is different, but even more, each county has its own matrix of interpretations and attitudes. Some, more libertarian in character, all but encourage property claims; others, the urbanized enclaves, tend to resist Measure 37 by demanding hefty claim-filing fees.

For each community, though, there is this same question: now what? Will Oregon allow Measure 37 to stand unaltered, and if so, how will an eventual influx of development — billboards, malls, trophy homes, golf courses, gravel pits — change the way Oregonians live?

An Oregon Writ Small

Measure 37 looks different in each of Oregon's counties, if for nothing else the state's diversity of climate and geology, the lifestyles and population pressures. But if one county could tell the whole story by itself, it's probably Hood River County. Reaching from the heights of the Cascade Mountains east along the Columbia River and south toward Mt. Hood, the county is small in terms of population and size, but beautiful, and rapidly changing.

Not counting hundreds of seasonal recreationalists chasing the famous winds, whitewater and biking trails, the county has some 21,000 permanent residents — up more than 21 percent from 1990. The county has historically been founded on an agricultural economy (apples were first planted in 1876, but pears have dominated since about 1920), but it's only an hour from Portland's metro area, and the community is feeling urban pressures. Though situated east of the great dividing mountain range, the community increasingly looks west, to the city, for its identity.

Hood River County is, in short, a sort of Oregon writ small. It's a microcosm of the state's most scenic land, its history, and its new challenges.

For in the same thirty years that Oregon has thrown up hurdles to development on farm land, Hood River has become an international recreation spot. Blooming under the in-pouring of wealth, the town of Hood River has turned from a sleepy agricultural hub into a quaint, bustling tourist community, a hotspot for day-trippers from the cities to the West. Median home prices in town are running $322,000 — pricier than Portland.

That's a lot of change in 30 years, change that farmers would probably weather with a philosophical shrug were it not for another, unsettling 30-year shift: Orchard-farming doesn't pay like it used to.

The 15,000 acres of irrigated pear, apple and cherry orchards in the valley are acutely responsive to weather. When there's a magic combination of rain, sun and balmy temperatures, the trees burst with fruit; and, vice versa. So that, for example, in 1984, the county's crop production was valued at a little over $30 million -- rather low. The next year, production spiked to $44 million.

But good years haven't kept pace with rising costs of doing business. Seen from the perspective of 30 years, the numbers show a downward arc in profitability.

Adjusted for inflation and other factors, orchardists today can expect most years to make a third less than those three decades ago. In the late 1970s, when sales figures are averaged out, an acre of fruit trees could reasonably be expected to bring in about $8,000 or $9,000 (in gross, adjusted 2006 dollars); today, that same acre brings in something like $5,000 or $6,000.

Why the plunge? Because while pear prices haven't increased, costs have, says Clark Seavert, an Oregon State University professor of agricultural economics, based in Hood River.

"The cost of growing and packing pears has gone up 3 and a half percent per year," over the past decade alone, says Seavert.

Still, while prices are an issue for many orchardists, others say the changes simply demand a sharper business sense.

"I have growers who say they can't make any money anymore and I have growers who say you can make good money. I think it's like any other business," says Jean Godfrey, executive director of the Hood River Grower-Shipper Association. The association represents about 350 orchard farmers — primarily in pears, the valley's biggest crop — and 20 packing houses.

So Hood River Valley farmers are making less from their fruit, though many are still making a decent living. But they also know there's an almost global demand for houses nearby. Homes with any amount of mountain views (Hood to the south, the equally impressive Mt. Adams to the north, across the river) and acreage can sometimes fetch in excess of a million dollars in the valley.

To date, more than 80 Hood River County residents have filed more than 100 Measure 37 claims. They're all for rural land, and the great majority are in the valley, according to public planning records. The range of claims makes it difficult to describe them in general terms, but this is clear from public records: Most of these claims are to develop multiple houses -- five here, fifty or a hundred there.

"99 percent of claims are on farmland," says Michael Benedict, the county's planning services director. And "a good share" of those are by orchardists. (A few other properties under claim are unfarmed, or planted in hay, or are timberland.)

A planning department map shows the claims are scattered the length and breadth of the valley, from small, odd-sized pieces of property — like one woman's 1.3-acre parcel she hopes to partition into three house lots — to large tracts of land, like one family's claim to divide 332 acres into 232 lots near the village of Dee, and another's 78 acres that may be divided into a 312-lot residential subdivision just outside Hood River city.

Altogether, nearly 4,000 acres of the Hood River Valley are under Measure 37 claims for development rights — representing as much as a fifth of the area's farmland.

Look for Part II of the Hood River story on New West.Net tomorrow.

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