Measure 37 One Year Later

Editor's note: Guest contributor Rex Burkholder is Deputy Council President of Metro, greater Portland, Oregon's regional government. He also chairs the Joint Policy Advisory Committee on Transportation (JPACT) and serves on the Bi-State Transportation Committee, as well as other regional transportation committees. See a full bio here.

This coming November marks the anniversary of the passage of the landmark Measure 37 in Oregon. The measure (described here and here) created statutory permission for property owners to claim compensation or waiver of any land use regulation adopted after they or their ancestors acquired the property that they feel reduced its value.

You can imagine the bizarre and harmful impacts. Setbacks from streams to prevent flooding downstream? Demand compensation or a waiver (and because most governments in Oregon are in tight fiscal straits, a waiver will always be the response) so you can log to the edge, downstreamers be damned? Walmarts and subdivisions in the middle of farmland? Why not?

The newest development is that Metro, the Portland area’s regional government recently released findings from a broad-based task force that cataloged the impact of Measure 37 in the North Willamette Valley and determined what responses may be possible.

Is this the opening of Pandora’s Box, releasing plagues and demons that can never be constrained? Is it a dangerous beast, that, released from its chains, trashes the countryside enough to alarm the good citizens who voted for “fairness” to recognize that protecting community livability and environmental health requires some restrictions on individual action? Here is what the task force found out:

• The number of claims region-wide has continued to increase dramatically; almost all of the claims are located outside the Metro Urban Growth Boundary and on exclusive farm use and exclusive forest conservation lands.

• The issues of transferability (the Oregon Attorney General ruled that the Measure does not allow the rights claimed by historical owners to transfer to new, non-family owners) and reluctant financing (banks and developers don’t trust the durability of these changes or don’t want to get involved in lengthy litigation) are expected to have significant impacts on the pace of development.
• The true impact of M37 cannot be assessed because getting a waiver of a regulation and getting permits to build are not the same.
• M37 development in rural areas will have impact on orderly urban expansion and on water quality and quantity (septic systems and wells would be expected to be needed in all development outside current urban service boundaries).
• In addition, there are doubts about who is responsible for paying for public services like roads, police, and fire to new development in rural areas.

The task force goes on to describe a number of difficult and expensive mitigation measures that could be taken, including setting up a Transfer of Development Rights system (difficult in Oregon where urban expansion in required and dictated by state law), conservation easement programs, extending services outside existing urban service areas (in order to lessen environmental impacts but certainly to exacerbate the greater environmental impact of low density, dispersed development); getting the State to wake up to its obligations to protect water quality and quantity (farmers need water to irrigate); and looking for new ways for the public to pick up the costs.

While all regulation, including Oregon’s successful land use system, imposes higher costs on some people, the general good that is achieved has long been held to be worth it by the majority of Oregonians. There have been three unsuccessful efforts in the past to openly eliminate the state’s land use planning system. Measure 37 is a backdoor attempt to undo 30 years of good planning that has resulted in healthy farms and cities.

Dealing fairly with those few property owners who get caught in the lurch by regulatory changes is a good thing; but there are very few of these. Certainly not the landowners near the small, rural town of St. Paul that want to build 200 houses, a casino and a strip mall on what has always been farmland. I doubt their grandfather envisioned Las Vegas in the Valley when he first walked those fertile acres.

P.S. -  See 1000 Friends of Oregon's website for an extensive summary on Measure 37 and its impacts.