Planning in the West

Oregon’s Hood River Valley: Life After Measure 37

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

	Flowering orchards are the historic scenery of the Hood River Valley. But fruit prices aren't what they used to be, and a number of farmers are applying for development rights that would plow under trees like these for fields of high-priced houses. Photo by Peter Marbach.

Editor's Note: This is the second of a three-part series on the fallout from Oregon's landmark rollback of land-use planning, Measure 37. Click here to read the first installment. This project was underwritten by the Orton Family Foundation in conjunction with the PLACEMATTERS06 conference to be held Oct. 19-21 in Denver.

Oregon's uniquely thorough planning goals emenate from the state, but on-the-ground planning rules are promulgated locally. And that's also where Oregon's Measure 37 plays out in the most contentiuous way.

Measure 37 is implemented differently in each of the state's 36 counties. Hood River County receives high marks for efficiency, meeting the law's 180-day action deadline for claims and seeking answers to questions that arise, says Steven Andersen, a Columbia Gorge-area property consultant. Nearly all the Measure 37 claimants in the county have hired Andersen to shepherd their claims through the detail-intensive process.

On the other hand, says Andersen, the county has followed the state Attorney General's position by holding narrow, pro-planning positions on some unresolved legal questions that limit some claimants' desired land uses. Like, for example, transferability of Measure 37 development rights to new buyers. It is, Anderson says, "a very hard line against restoration of property rights."

The county, for another example, attempts to channel proposed development into maximum density, he says, often clearing Measure 37 claimants for developments but making them outline their specific desires and follow existing zoning rules. "Hood River County is effectively rezoning every property that goes through the process when it rolls back regulations based on specific development scenarios."

Sure, says county Planning Director Michael Benedict, there are rules to follow. Measure 37 doesn't make planning goals go away, but rolls back some of the rules back for some people.

Take a property owner who wants to build a house on a parcel of less than the 80-acre minimum in a farm zone, and place the home next to a stream. Measure 37 would like let a longtime owner gain an exemption to the minimum acreage, says Benedict, but not necessarily in the exact spot he'd had in mind next to the stream, given the county's long-standing stream setback ordinance.

When handling claims, county planners research each to find out exactly what rules applied when the landowner acquired the property in question. Planners not only look up what local rules applied then, but what state goals had been instituted, and in some cases how the courts had ruled. Benedict calls the in-house impact of the law "pretty severe," in that Measure 37 claims are numerous, complicated and take priority. Staff planners now work in a sort of triage mode, focusing on today's claims instead of tomorrow's long-range planning.

Still, some of Measure 37's central questions, defining the range of scope of law's property rights, remain unanswered. Among these is transferability; another is the precise definition of “current owner” of a piece of property. (When does a person, for instance, become an owner? When they’ve worked the family farm for decades, or only after they’ve inherited the land?)

The legal questions dogging Measure 37 represent the how; as to the why, why farmers would file claims to build hundred-lot subdivisions or even golf courses, as three landowners have, there are several common answers. There's an undeniable lure of big money, of course, mostly by claiming the right to develop high-dollar lots, and selling the land to a developer.

Many farmers see their claims as a way to reserve their rights for some future date -- preserving the possibility to develop their land into housing later in their life, perhaps to cover a year of poor crop yields or pay for retirement, boosting the quiet years of their lives into potentially very prosperous ones.

Says Benedict, "The vast majority of people I've talked to are thinking of it as a certificate of deposit."

Jean Godfrey, director of the Hood River Valley's fruit growers' association, agrees, citing many farmers she's spoken with. Farmers' accountants and lawyers are encouraging them to file Measure 37 claims to establish their rights, and keep all options open.

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

"The great majority" of landowners making claims in Hood River County, Andersen says, "just want to get their property rights back so they will have the flexibility to react to economic conditions in the future. Remember, ... land use and the economy are dynamic. Tying the hands of the farmers and timberland owners in reacting to economic change is anathema to what this country was established to be..."

Others hope to carve off a small slice of land for another house, often for a son or daughter, something generally restricted under current law. Still other Hood River Valley orchardists filing Measure 37 claims see the possibility of development as a farm-enhancement option. The idea is to develop a portion of their land, perhaps an area of steep slopes or a canyon frost pocket where fruit trees grow poorly, to raise capital, while keeping the prime orchard acres in full-bloom.

Local farmers aren't, mostly, looking for a quick way out of the business, says Godfrey. "They're in it for the long haul. They're in it for their families. We're surrounded by people who've been in it for four generations."

That may be, but then there's the total, those 4,000 acres (so far) that people here would stop farming and develop.

• • •

Farming requires a community of fellow growers. You need a certain number of neighbors in the business, to share technology and new farming practices, to instill an ethic of tending the land, and to produce the volume necessary to make the economics pencil out. There's no way every farmer could tend to his own packing, shipping and marketing, let alone horticultural research, or find supply sources.

For some families in the Hood River Valley, this ethic and economic system, this way of life, is three or four generations old.

Some, said Godfrey, "consider if you file a claim it's a betrayal to agriculture," adding that, regardless of opinion, only a small minority of orchardists have filed for Measure 37 claims. So far. (The growers' association has taken a neutral position on Measure 37, given the divided opinions of its members.)

Of course, the attitude that equates any change with betrayal might be bullheadedness, too.

Camille Hukari, one of the orchardists who's filed a Measure 37 claim, says she's been the butt of hostility from some fellow orchardists, for also adjusting her crops and trying a new blend of farming and tourism. She's planning to turn a house she owns along the valley's main road into a new-fashioned fruit stand and wine-tasting venue. She'll take out eight acres of pears to plant ten new, direct-to-consumer crops. Think flowers and you-pick grapes for tourists.

That sort of experimentation is necessary, says Hukari, but angers some fellow orchardists. But pears-or-bankruptcy, she says, is as bad a model as centralized land-use rules that tie farmers' hands on their own land.

"Why do I have to grow pears?" she says. "It's stupid."

So Measure 37 claims and potential development is mixed up with other, complicated and emotional fibers of the valley's history. Development claims may offer some a way out, or a way up, but they also threaten those who would resist the pressures.

There's an axiom of rural life, says Benedict, that introducing new, urbanized people into a working farm area brings conflict. New residents see the picturesque landscape, but don't necessarily appreciate the actual operation of a neighboring orchard. Real estate brochures may not prepare new residents for unpleasantness like the oil-burning smudge pots that farmers light to warm trees against untimely frost, for example; or the helicopter-sound of the tall fans in the middle of the night, or the dust of tractors in the summer fields, or a dozen other patterns of the orchard life. If conflict is a price of development, it's one that neighboring farmers will likely pay.

And many already do. Mike McCarthy, one of the orchardists skeptical about Measure 37, sees a lot of people, more all the time, who "mutter and complain" about agricultural operations. Others, he says, see farmland and figure it's open to all comers. More development, even on sketchy ground or small lots, means more neighbors who don't farm, and "more people who think your land is their playground."

McCarthy notes the four-wheelin' new-comers who run over irrigation pipe laid out in many orchards by hand, that brings critical water to the trees. And he describes a recent post-wedding incident. (Weddings on scenic grounds are increasingly popular in the valley.) A guest got drunk and tore off in a pickup truck through a field of young trees that McCarthy farms. Perhaps the man saw only some mud to splatter for kicks, but in the process he destroyed several thousand dollars worth of saplings.

• • •

Regardless of how many Measure 37 claims valley farmers make, or how ambitious some of them are — property owners in the valley now are asking for rights to build 50 or more housing units on about 20 different parcels of land — development in the valley will probably take a while. No one has actually built anything yet.

"I'd be surprised if there are any major subdivisions going in soon," says Benedict, the planning director. "It will probably be a couple of years before all the big-ticket (legal) questions are answered."

A likely scenario: Rural residents who have larger Measure 37 claims will develop them slowly, to avoid additional planning hurdles like the subdivision rules that require people to lay sewer, water and other infrastructure for projects of four or more units. Many would-be farmers in the valley may end up building modest numbers of houses, three or fewer a year — a steady pace, a drip-drip-drip of new houses and people into the valley.

What might a M37-inspired development trend make the valley look like in another 30 years?

"You could have pretty significant clusters of housing," says Benedict, who adds that the limiting development factor will likely be the availability of proper septic systems. Measure 37 doesn't exempt any property owner from health and safety regulations.

Even if no new housing were built over the foreseeable future, stagnant pear prices mean that valley orchardists must continue to seek out new and more-efficient farming practices, says Clark Seavert, an Oregon State University professor of ag economics. For one thing, about half the valley's orchards feature trees 50 years or older; newer plantings, featuring more densely-planted trees brought into production more quickly, that’s the goal.

The drive for greater horticultural efficiency will reverberate throughout the established valley industry, offering frightening times, but also new opportunities for growers and packers, like specialization and new markets, Seavert says. "These people are innovators."

Already, Seavert notes, farmers are experimenting with alternative crops like blueberries and vineyards. Indeed, these are often useful on ground that’s no good for orchards, like wine grapes that are traditionally grown on steep slopes.

McCarthy is upbeat about the industry — if it's not undercut by development and growth conflicts. Left alone, he says, and keeping up with best farming practices, pears have a good outlook. He says, "The pear industry is alive and well, and you can make a good living."

• • •

If 4,000 acres or more are developed, as Measure 37 claimants wish, the Hood River Valley would see irrevocable changes. There's only so much land; regardless of the rights or wrongs of property, once developed, the dynamics of the people on it alter forever. The remaining farmers will be squeezed by increasing numbers of neighbors with interests at cross purposes to their own, people who play on the land, or prize it for weekend retreats, but do not work it.

Development pressures aren’t limited to the valley, but will be replicated around Oregon — in the Wallowa valley and the small towns in the Cascade Mountains foothills; on the Pacific coast and in the Willamette Valley’s farmlands.

Is there no stopping it?

Tell that to the Oregonians who haven't given up the struggle to reconcile conservation and property rights. To the farmers who resist selling out. To the hundreds of residents who have come out to the "Envision Oregon" meetings in recent months to discuss it all. To the volunteer members of the state Legislature's "Big Look," a committee whose humble task is to propose a new planning-and-property vision in the coming couple years.

Oregon staved off rampant development of its rural areas for 30 years, conserving the best aspect of itself, at the cost of some dashed hopes, curbed rights and frustrated property owners. Those limits on people's rights grew as weeds of distrust, all but untended by political leaders. If Measure 37 holds any lesson for the state, it's not that development, like tenacious ivy, cannot be stopped; but that tending the garden, planting here and cutting back there, requires not just a love of the place, but people willing to dig deep and get their hands in the soil.

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