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Deliver on Measure 49

November 16, 2007

Before last week’s election, opponents of Measure 49 warned that its real intent was to turn back the land use clock to before 2004 when voters approved the Measure 37 property rights law.

Now, it’s up to local governments and the state to prove those critics wrong.

When state lawmakers voted to put Measure 49 on the ballot, they said their intent was to fix, not repeal, a deeply flawed Measure 37.

Measure 49, they said, would expedite Measure 37 claims for property owners who want to build a few homes, while preventing the large subdivisions and commercial and industrial developments sought by some claimants. It would clear a huge claims backlog by allowing all to move forward and receive transferability. Small claims would be approved without owners having to prove actual losses of property value, while landowners who had filed large development claims would be able to bump down in size to fit new development limitations and receive fast-track treatment, as well.

As for the many property owners who had filed Measure 37 claims beyond the scope of the limited housing allowed under Measure 49, they would be allowed to proceed with those plans if — and only if — they had already spent sufficient money and done enough construction to have a “vested right” in their projects.

Now, the state and local governments must deliver on these promises of speed, efficiency and fairness. Failure to do any of these things — or to do them only in half measures — will undermine the Legislature’s and governor’s plans for a major overhaul of Oregon’s land use laws. It will also play into the hands of Oregonians in Action, the property rights group that sponsored Measure 37 and that will use any stumble on Measure 49 as a pretext for claiming voters were deceived and to return with yet another property rights initiative.

In particular, local and state land use officials must resist the temptation to be overly restrictive in determining what constitutes a “vested right.” Measure 49 doesn’t provide a legal definition, and initial interpretations will fall to local and state land use officials, although the courts are certain to have the final say.

Any effort to set the bar so high that it precludes all subdivisions or commercial and industrial developments by Measure 37 claimants will confirm the suspicions of Measure 49 opponents and provide them with ammunition for future initiative efforts.

Just as importantly, local and state governments must make certain they follow through fully on creation of an “express lane” that provides expedited service to Oregonians seeking to build up to three houses, even if those homes are to be located on prime forest and timber lands. This was one of the most attractive features of Measure 49 and helped account for its unexpectedly strong showing in rural regions of the state.

Since the election, it’s been encouraging to hear the state’s top lawmakers, the governor and land use watchdog groups on both sides of the Measure 49 debate agree that the next step should be to revive Oregon’s “Big Look” task force that’s charged with reviewing Oregon’s three-decade-old land use laws and recommending major reforms.

Such a review is sorely needed to reflect the major population growth and shifts and economic changes that have occurred since Senate Bill 100 was approved in the 1970s. It also has great potential for engaging Oregonians in a statewide discussion that leaves them with a renewed sense of ownership and vision in a land use system that will keep Oregon beautiful, its economy strong, its communities vibrant and its forests and farms intact in the demanding decades to come.

Before that can happen, however, the state must keep faith with its voters and deliver on the promises of Measure 49.

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