Property Rights in Oregon

No Measure 37 Claims In Gorge Scenic Area, Says Court

By Dan Richardson, 2-12-07

The history was complex, but a recent ruling made it plain: Oregon’s Measure 37 does not apply in the Columbia Gorge’s National Scenic Area.

That was the word from the Oregon Court of Appeals last week. The ruling (read it here) came a relatively swift two months after the court heard arguments in the case. The court action was a test case specifically designed to answer the question: which has precedence, the scenic area or Oregon’s land-use development law?

(The Dalles Chronicle published a detailed but readable backgrounder about the court case.)

Defendants Paul D. Mansur and Stephen Struck — both Hood River property owners wishing to develop modest parcels in the Gorge — were represented by Oregonians In Action, the point organization for Measure 37. OIA argued in court that since Oregon had to participate in the creation of the Columbia Gorge Commission, the Commission is a state agency.

Actually, the court ruled, it’s a hybrid creature, a regional bi-state commission established under a Congressional act. Wrote the judges, “we agree with plaintiff that the interstate compact between Oregon and Washington that created the Commission has the force of federal law,” making the Scenic Area exempt from Measure 37

The Columbia Gorge still sees development, of course — houses are springing up all the time, but at a modest pace, given the land use hoops that the owners must jump through. It’s surely an aggravating process for property owners, but then it’s kept the Gorge from becoming an 80-mile-long suburb of Portland. The appellate court’s ruling may not be the final word on Measure 37 in the Gorge: OIA and company have 30 days to decide whether to appeal to the state’s Supreme Court.

While lawyers were hashing out the Gorge-vs-Measure 37 case, legislators were beginning to tackle the law head-on. Democrats, now solidly in control of the Oregon Legislature and the governor’s seat, say they’re considering a revision of Measure 37. They say they may address the greatest issue at hand: that Measure 37, considered a matter of fairness by a large (if dwindling) number of Oregonians, opens loopholes for potentially massive developments.

The law, in other words, preserves one property owner’s values and investment while destroying the neighbors’.

Gov. Ted Kulongoski is calling for a suspension of multiple-unit development claims under Measure 37. It sounds like legislators are starting to think that’s not a bad idea, either — at least those who don’t stand to personally profit from large Measure 37 claims.

Talk of revising the law to make it more about fairness for smaller property owners and less about mass development would seem to be a sign that we could achieve reasonable land-use compromise. As I’ve argued for many moons now, there’s a world of differencebetween letting someone build a retirement home on rural property, and turning over our best remaining land to condominium-builders.

Compromising thoughts, of course, raise ire in certain quarters. Feel the outrage here.

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