Measure 37 is a continuing battle

Last updated Dec 26, 2006 12:0pm0

Measure 37 has been a controversial issue since it was passed about two years ago. The fact that it was passed by the greatest margin of any measure in Oregon's history makes it no less controversial, and because of it numerous battles over land use are being waged in the Sisters area.

According to Tim Berg of the Deschutes County Community Development Department, currently there are 32 claims totaling 5,450 acres, with a total claim value of $130,000,000 in the Sisters School District. All the claims are for residential subdivision/dwelling purposes. The economic and environmental impact of these claims could be felt by Sisters' residents for decades.

There are two additional Measure 37 claims by Central Electric Cooperative that concern right-of-way for power lines and substations that have not been assigned a claim value.

The largest Measure 37 claim yet filed in Deschutes County was for a $203.5 million loss. The property owner wants to mine pumice, drill for geothermal energy and build 150 homes in a crater in the middle of the Newberry National Volcanic Monument.

One story that illustrates the emerging picture is the battle fought by Central Electric Cooperative (CEC) over a power line to Sisters. The Sisters area has had chronic problems for years with aging and inadequate power transmission infrastructure. CEC has been attempting to upgrade the transmission infrastructure to Sisters for several years in an attempt to eliminate the power outages that most often occur in the winter during periods of high demand.

The plan, according to Jim Crowell of CEC, was to build a loop system of transmission lines so that in the event an incident took out a power line, Sisters would not be left in a total blackout until the line could be restored. Additional power would be immediately rerouted through the the other portion of the loop until the repairs were completed.

However, problems surfaced almost immediately when the Cyrus family felt that the power line would diminish the value of farmland that the family could develop as a residential development under Measure 37. A legal battle ensued which required CEC to obtain a Measure 37 waiver, which was granted after a tense legal standoff.

However, the issue is still not resolved, and the property owner is demanding that the power lines be removed.

Martin Hanson, attorney for CEC, commented that the same landowner had "actually helped support and draft Measure 37 itself because of their own property. It was hearing voices on their own guitar. It was their Measure 37 not our Measure 37."

Hanson continued, "We noted the irony there. At one hearing date they were trying to defeat our Measure 37 claim, and the next hearing on the docket was their Measure 37 claim."

Calls to Matt Cyrus were not immediately returned.

The City of Sisters is facing some planning dilemmas due to Measure 37 claims. Eileen Stein, Sisters City Manager, said of the Measure 37 claims, "They certainly have the potential to affect our planning."

For example, there are at least two Measure 37 claims that have the potential to develop into urban density: Pine Meadow Ranch and Patterson Ranch. Claims were filed for both properties before the December cut-off date.

Both are outside the Urban Growth Boundary (UGB) for Sisters. The City of Sisters will have to decide if they want to bring these developments into the UGB and city limits so that they can provide services of water and sewer to these developments.

Also of concern is the potential for using Measure 37 claims to build on flood plains. Some land use restrictions concerning setbacks from creek or flood plains could conceivably be circumvented through the application of a Measure 37 claim. This could create a serious fiscal problem in the event of a flood.

Real estate values are another issue. The whole thrust behind Measure 37 was to provide compensation for decreased property values due to land use restrictions. However, the value of other non-Measure 37 properties may be negatively affected because their neighbors may now be able to build structures that decrease the value of their land.

The origins of Measure 37 lie in land use laws

The origins of Measure 37 lie in the days of Republican Governor Tom McCall who held office between 1967 and 1975 and marched to the beat of his own drummer.

A glimpse of McCall's passion for Oregon's natural beauty is apparent in his often quoted statement from a speech delivered in 1971: "We want you to visit our State of Excitement often. Come again and again. But, for heaven's sake, don't move here to live."

Democratic Governor Ted Kulongoski spoke of Governor McCall in 2002 describing him as: "Non-conformist. Fiercely independent. Plain spoken. Tolerant. And above all, in love with - and determined to protect - the natural beauty of Oregon."

In 1973, McCall convinced the Oregon legislature to adopt the nation's first set of comprehensive land use planning laws. McCall enlisted the aid of an unlikely coalition of farmers and environmentalists, and together they persuaded the legislature that the state's natural beauty would soon be lost in a rising tide of urban sprawl.

Senate Bill 100 (SB 100) was the result, and it created the Land Conservation and Development Commission (LCDC) and the Department of Land Conservation and Development (DLCD). The resulting new goals and guidelines required every city and county in Oregon to have a long-range plan addressing future growth that meets both local and statewide goals. The legislature delegated the authority to establish the state standards to the LCDC. This commission adopted standards called the Statewide Planning Goals. Several Oregon Administrative Rules, as well as regional policies and city policies, supplement the Statewide Planning Goals.

On the heels of SB 100, Governor McCall joined forces with Henry Richmond, an activist who believed that good planning could address serious environmental, social and economic issues, and together they founded the 1,000 Friends of Oregon as a nonprofit charitable organization to be the citizens' voice for land use planning that protects Oregon's quality of life from the effects of growth.

The result of SB 100 is the preservation to this day of much of Oregon's pristine beauty and environment. However, beneath the surface were sown all the seeds for a backlash. Governor McCall was roundly criticized as anti-growth and anti-business; property owners rebelled against the strict land use laws and began to seek a remedy.

Then came Measure 37 in 2004, the controversial property rights initiative that gave longtime land-owners a way around Oregon's strict growth-management regime. Measure 37 provides that a landowner is owed a payment by the government if the property owner can prove that his or her land has been devalued as a result of any land use regulation imposed after the time the property was acquired by either the landowner or a family member.

As an alternative to a payment, the governmental entity imposing the regulation may "waive" land use regulations imposed.

Soon after its passage, a flurry of Measure 37 claims were filed that were immediately followed by a storm of lawsuits challenging everything from the measure's constitutionality to individual claims.

Since this time, the legislature has struggled to find some middle ground, and numerous modifications of the original bill have resulted. Impacts of the passage of Measure 37 are affecting the environment, growth planning and the real estate market (see related story, page 3).