Oregon's property rights battle



HARVEY KEMPEMA is giving Oregon's Washington County commissioners a choice.

Option A: Waive county zoning rules and let him split his old dairy farm into 5- or 10-acre lots, as he says he could have done when he bought the land in 1973.

Option B: Write him a check for $2 million.

This sounds like an angry property owner's pipe dream. It's not.

In November, Oregon voters overwhelmingly approved Measure 37, the nation's most sweeping property rights law. Since then, hundreds of eager landowners such as Kempema have flooded city halls and county courthouses with claims demanding that government drop restrictions and let them develop their property or pay them not to.

"I never in my life thought I'd see something like this," Kempema said.

Before Measure 37, such landowners' development plans would have been fantasies. They violate Oregon's pioneering land-use laws, often hailed as a national model for curbing sprawl and protecting farms and forests.

Measure 37 trumps those laws. No statute in the country more drastically limits government's power to regulate what people can do with their property.

Planners and lawyers still are sorting out just how the new law will work and how far it reaches. No earth has been turned yet because of Measure 37.

But its landslide, 61 percent victory in a state as green -- and as blue -- as Oregon has sent ripples across the state and across the country.

Property rights advocates in Washington, bristling at rules adopted under the state's Growth Management Act, hope to put a similar proposal on the ballot in 2006.

Dave Hunnicutt of Oregonians in Action, Measure 37's sponsor, said he's also working with activists in Florida, Wisconsin and South Carolina.

"If it can happen in Oregon ... it can happen anywhere," wrote Portland attorney Edward Sullivan, a leading opponent of Measure 37.

Many Oregon landowners have been seething for decades at restrictions the state imposed on their property in the name of managed growth. For them, Measure 37 is a dream come true.

It lets property owners file claims against governments whenever a land-use or zoning regulation restricts how they can use their land and reduces its value.

State and local officials can either compensate them for that reduction in value or waive the regulation and let the owners do what they want.

Compensation isn't a likely option for cash-starved governments. Measure 37's backers knew that.

"People don't want money," Hunnicutt said. "They want to be able to use their land."

Measure 37 doesn't apply only to new regulations. It's retroactive: Landowners such as Kempema can file claims for rules imposed anytime after they acquired their property.

Much of Oregon's political establishment -- business, labor, environmentalists and the governor -- fought Measure 37. They warned it would shred policies that have helped keep Oregon livable for more than 30 years. They outspent the initiative's supporters by more than 2-to-1.

But on Election Day, Measure 37 won in 35 of the state's 36 counties -- including Washington County, just outside Portland, the kind of place where the new law's impact is likely to be felt most.

Subdivisions to forests

The county stretches west from the subdivisions and semiconductor plants of Beaverton and Hillsboro to the farms of the Tualatin Valley and forests of the Coast Range.

Oregon's land-use laws have maintained a bright line between city and country here, despite years of rapid growth.

So far, 115 Measure 37 claims have been filed at the county planning office. Almost all would put more homes, or create more lots, on the rural side of the line.

Pacific University political science professor Russ Dondero predicts that, under Measure 37, that line will eventually be obliterated, "like Chinese water torture, one drop at a time."

But for some landowners who consider themselves long-suffering victims of Oregon's land-use laws, Measure 37 represents justice, even payback.

"This is our one big opportunity," Steve Mead said.

Mead's great-grandfather homesteaded on Green Mountain, in northwestern Washington County, in 1886. His grandfather and father were born and died there. Mead has a house on the mountain. So does his mother.

Altogether, the family owns and manages about 300 acres, almost all of it in timber and Christmas trees.

"I'm the fourth generation on this mountain," said Mead, 58. "And they're pretty much saying that's the end of it."

No dividing allowed

Oregon and Washington County adopted new rules in the early 1990s to protect forests from incompatible development. Those rules prevent the Meads from dividing their big blocks of land into smaller pieces.

They allow just one additional house -- and that's only because it would replace another dwelling, an aging mobile home.

Mead, a real estate broker, has that site reserved for a home for his daughter, but she's not his only child.

"My son grew up on this mountain," he said. "And I can't give him two acres to build a house. That's not right."

In February, Mead filed Measure 37 claims seeking either $10.8 million or waivers to create 29 two-acre lots on his family's land -- mostly in clusters of three or four, many with dramatic mountain views.

He said he intends to keep them all in the family, to provide homes or weekend retreats for his and his brother's children, grandchildren and future great-grandchildren.

He's considering writing language into the deeds to discourage sales outside the family. He said he would sign covenants to keep the rest of the property in timber permanently.

"I want it to do what it does best," Mead said of the land, "which is grow timber and grow kids."

Measure 37 hasn't abated his anger at Oregon's land-use laws and the planners and environmentalists behind them. They hurt his family, he said, and they got what they deserved on Election Day:

"They say pigs get fat, and hogs get slaughtered. They were hogs. They got greedy."

Portlanders shut out

More Measure 37 claims have been filed in Washington County than anywhere else. Mark Brown, the county's land-development manager, isn't surprised.

Many Portland-area buyers want a home in the country on an acre or two, he said, but until now they have been largely shut out by state and county laws that channel development onto smaller, urban lots.

"There's this market that's kind of had a padlock on it," Brown said.

Dorothy Bernards' claim is Washington County's most ambitious. She wants either $9.5 million or permission to subdivide the grass-seed field that's been in her family for more than a century into 98 half-acre home sites.

Her son and representative, Portland commercial real estate developer Dale Bernards, said the lots will sell fast to families seeking more space.

"People are getting forced onto these small, compact lots," he said. "When you yawn, you're in your neighbor's yard."

Farms surround Bernards' property on Martin Road, even though it's less than a mile from the college town of Forest Grove.

Farm country

Washington County ranks third in Oregon in agricultural sales, despite its proximity to Portland. Farming still is big business here.

That's partly because Oregon's land-use laws have protected it, said farmer Dave Vanasche. If Measure 37 claims succeed, he said, "I'm doomed."

Vanasche grows grass seed, grain and other crops on more than 2,000 acres in Washington County. Some of his neighbors have filed Measure 37 claims.

Vanasche said he could file one, too, but Washington County has some of the best farmland in the world.

Houses and farming just don't mix, he said.

At first, newcomers like their pastoral surroundings, but then they start to complain: the spraying, the dust and the smell.

"Essentially," he said, "an agricultural zone is an industrial zone."

At some point, Vanasche said, farmers grow weary of the conflict and sell. Eventually, there won't be enough farmers left to support the infrastructure, the feed stores and equipment dealers agriculture needs.

Under Measure 37, he said, that day will come sooner.

Three fronts

Measure 37's future is playing out on three fronts:

• Opponents have filed a lawsuit challenging its constitutionality. Dave Vanasche and the Washington County Farm Bureau are among the plaintiffs.

It charges, among other things, that the law should be struck down because it discriminates: Longtime landowners can seek waivers from rules that more recent buyers must follow.

• The Oregon Legislature is considering dozens of bills to clarify or alter Measure 37. Unlike Washington's Legislature, it can modify -- even repeal -- a voter-approved initiative by simple majority vote.

• While they wait for the Legislature or the courts to act, city halls and county courthouses have become Measure 37's test labs.

The new law doesn't spell out a process for handling claims. It allows governments to adopt procedures but said property owners still can seek compensation in court after 180 days even if they don't follow the procedures.

Waiting game

Harvey Kempema said he filed his claim early -- before Christmas -- in part because he's not certain Measure 37 will survive intact.

Kempema was a dairy farmer when he bought his 56 acres between Hillsboro and Cornelius more than 30 years ago, but he stopped milking cows and started selling real estate a few years later.

The property wasn't a viable farm, he said. Today he leases it to a tenant who grows curly willow, used in floral arrangements.

For decades Kempema chafed at the land-use laws that kept him from developing his property. When Measure 37 was filed, he put up signs in support of it. When it passed, he rejoiced. His claim proposes to carve his land into five-acre lots, with maybe some commercial development on a corner.

Kempema said he'd probably settle for 10-acre lots: one for him, one for each of his daughters, maybe a couple to sell to help finance his retirement. "I'm not looking to put up a high-rise or anything," he said.

But he can't hide his glee at the opportunities Measure 37 at long last presents him.

"When will (the) check be ready?" Kempema wrote the county when he filed his claim. "Or -- when can I start dividing?"



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