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Oct 11, 2007, 4:59 PM
Developers divide on Measure 49
Developers on opposite sides of the UGB see competing financial interests
POSTED: 06:00 AM PDT Thursday, October 11, 2007
Daily Journal of Commerce

The debate over Measure 49 rages like a mid-summer wildfire. As a plethora of TV and radio ads air, newspaper opinion pieces run and town hall meetings take place, different sectors of the development community vie for the public’s conscience.

Although there is great disagreement on Measure 49 and its possible effect on Oregon’s land-use laws, one factor remains true, according to stakeholders: Financial interests ultimately determine where developers fall on the issue.

Jana Jarvis of the Oregon Realtors Association doesn’t mince words: Measure 49 is bad for business, bad for homeowners and bad for the future of Oregon, she says. The measure is both reactionary and reactive – a tedious reminder of Oregon’s protectionist thinking when it comes to land-use law and its often knee-jerk attitude toward growth, she argues.

“(Oregon) is not a particularly competitive state,” Jarvis said, arguing that Measure 49 would eliminate all Measure 37 land-use claims for industrial and commercial uses. “Retailers will come, but if industries see us as being less competitive than Washington or Idaho, then they will not locate here.

“We need to be careful not to protect ourselves to extinction,” Jarvis said, insisting that the urban growth boundary is anti-business and anti-growth. The Oregon Realtors Association donated $500 to the anti-Measure 49 Oregonians In Action, created by David Hunnicut, a long-time opponent of land-use legislation and the author of Measure 37.

Thirty years after Oregon’s first land-use planning legislation, the issue remains as controversial as ever – perhaps more so, if Measure 37, its precursor Measure 7, and Measure 49 are indicators of the current landscape.

Farming, timber drive protections

In 1973, Gov. Tom McCall pushed through Oregon’s urban growth boundary as a way of protecting sprawl – a fact both lauded and lamented with equal vigor. But despite the state’s notoriety for controlled urban and rural development, Oregon was simply following an example set by other communities, albeit to a greater degree.

Fayette County, Ky., was the first municipality to adopt an urban growth boundary, in 1958 – at the time a de-facto expansion of zoning ordinances designating building height and density that had been commonplace since the 1920s. Fayette County, however, revised its zoning ordinances to define and determine future growth.

When Oregon’s land-use legislation passed, it stipulated that all localities adopt growth boundaries to protect the state from sprawl and maintain Oregon’s primary industries: farming and timber.

But those industries are throwbacks, Jarvis said. What was true for Oregon in 1973 is no longer true in 2007. In 2007, the state-appointed “Big Look” task force determined the state’s land-use policies should be reviewed. “If lands outside UGBs are not intended to be preserved for farm or forest purposes then what should be allowed on these lands?” a November 2006 task force report asked.

Peter Bray, an environmentalist and blogger who maintains Landusewatch.com, a pro-Measure 49 Web site, worries developers and timber companies have too much say in framing the debate. The influx of money, he argues, creates a tremendous hurdle for grassroots environmental advocates such as himself – people who don’t view the issue from a solely economic standpoint.

“You see libertarians and other right-wing folks making these specious claims in favor of developments, yet this might be the only time they make them,” Bray said, claiming there is a traceable amount of fearmongering at work, as organizations like Oregonians in Action use the threat of eminent domain to foment support. “Oregonians in Action is pretty adroit at using potent images (in their commercials).”

But the money shows that, among developers, views on Measure 49 differ.

Portland developers Williams & Dame and Russell Development donated $10,000 apiece to the pro-49 group Yes on 49. In recent weeks Russell Development’s John Russell aligned himself politically with presidential candidate Hillary Clinton, as a member of her Oregon steering committee, and democratic U.S. Senate candidate Jeff Merkley, as co-chairman of his campaign’s fundraising efforts. On the other side, Joe Weston – whose holdings include American Property Management Corp., Weston Holding Co. LLC and Weston Investment Co. LLC – donated $500 to Oregonians in Action.

Jarvis views the difference in opinion among developers as an indicator of competing interests – among developers with different profit structures, but also between urban and rural developers. “If I were a developer (in Portland) and I paid top dollar, why would I want someone to be able to purchase and develop land for less elsewhere?”

Carl Coffman, president of Norway Development Co., admits having a financial interest in Measure 49’s failure. Still, he believes the issue is overblown – on both sides – but specifically on the side of pro-49 interests. Property owners might be sitting on land, said Coffman, hoping to build a big-box store or a housing development, but they won’t be able to because of water, sewer and road concerns. If there is no infrastructure, there is no development.

Jarvis agrees with Coffman’s assessment. “We seem to forget that there are market factors at work, and just because the government says we can build doesn’t mean we should,” Jarvis said. “We often overlook market factors.”

Hiroshi Morihara of Persimmon Development Co., who sees a divide between developments on the west side of the Willamette River versus developments on the east, is another developer staunchly in favor of Measure 49, stating the need for city centers and the ability to transfer development rights.

“I understand people’s individual rights (to develop), but they have to understand the public good,” Morihara said.


Oct 11, 2007, 5:04 PM
Invested in UGB, builders fight Measure 37
Some production developers have spent millions on buildable land and fear market saturation
POSTED: 06:00 AM PDT Thursday, October 11, 2007
Daily Journal of Commerce

Oregon home builders say they’ll grudgingly support Measure 49 this November.

The industry’s support comes as a surprise to some. A “no” vote would mean potential payouts from more home construction. A “yes” vote would likely lead to stricter land-use regulations.

But building Measure 37 subdivisions on farmland outside urban growth boundaries will dilute the industry’s ability to sell homes inside city limits, builders say.

Home builders have poured big bucks – as much as $600,000 per acre – into undeveloped land within urban growth boundary expansions. Renaissance Homes and Legend Homes, two of the state’s biggest home builders, are sitting on hundreds of undeveloped acres inside UGBs near Portland and Bend, waiting for cities to invest in the roads and sewer systems they need to start construction. If Measure 49 fails to pass, the value of those undeveloped acres could drop as supply allowed by Measure 37 comes onto the market.

“I voted against 37, and I’ll vote for Measure 49 because it’s a vast improvement over what 37 was,” Randy Sebastian, president of Renaissance Homes, said. “There’s so many uncertainties” under Measure 37, he said.

Measure 49 would stymie large subdivisions on land approved for development under Measure 37 by allowing no more than three homes on most claimant’s properties.

Measure 49 fast-tracks construction, increases regulation

Voters in 2004 passed Measure 37, which grants land-use waivers to owners that purchased their property before regulations were enacted or requires counties to compensate landowners for value lost as a result of land-use regulations.

The measure has created a host of legal headaches for landowners, developers, cities and counties alike.

In the past two years, more than 7,000 Measure 37 claims have blanketed the state, but almost no construction has happened. Oregon courts have ruled that landowners cannot transfer development rights, essentially locking owners out of construction loans.

By allowing owners to transfer their rights, Measure 49 would fast-track construction on about 42 percent of Measure 37 claims – those that seek to divide home sites into a few lots.

“I would expect Measure 49 to facilitate construction financing,” Bill Jaeger, an economist at Oregon State University, said, “and lead to some additional construction due to the streamlined processing for claims involving a small number of houses.”

Land that has been tied up due to legal questions surrounding Measure 37 claims would be free for development, he said, boosting Oregon home construction.

Regulators would also be free to pass more land-use restrictions under Measure 49.

Deterrents to development like tree-taking ordinances and environmental overlays have fallen off as a result of Measure 37, said Drake Butsch, a former president of the Oregon Home Builders Association.

Oregon land-use system broken, builders say

“I’m reluctant to support 49 because 37 is the only leverage we have to try and hold back extremely onerous regulation that’s running wild right now,” said Jim Chapman, president of Legend Homes, a Portland-based developer with subdivisions throughout Oregon.

But, Chapman said, “there’s nothing in the (land-use) system for getting beyond planning. Of all the boundary expansions there have been since we created the law, almost none of it has come online and given us any homes.”

Builders have avoided purchasing land approved for development under Measure 37 because of uncertainties surrounding the transfer of the property to a developer, Butsch said.

“A developer would much rather play a set of rules they know and have confirmed expectations knowing they will be able to develop,” Butsch said. “That’s a much smarter business than picking up odd pieces.”

Instead, residential developers bought up land inside the urban growth boundary in Damascus, North Bethany and Hillsboro. That land now sits empty, waiting for cities to build the infrastructure – roads, sewer, electricity – necessary for home construction.

Fewer than 200 homes have actually been built on the more than 18,000 acres added to Portland’s urban growth boundary since 2002, according to Metro. The land is slated to hold over 35,000 new homes.

Cities haven’t properly prepared the land brought in under UGB expansions, Chapman said, leaving home builders with few alternatives for development.

Legend Homes owns 160 empty acres in Bethany that it can’t build on until Washington County finishes a concept plan it was supposed to complete in 2004. The county says it still needs $350,000 to prepare the land for development.

Renaissance Homes is holding onto about 200 acres near Wilsonville and Bend that could fit about 1,000 homes, Sebastian said.

The company has so far stayed away from building on land approved for subdivisions under Measure 37 because of the law’s shaky transferability rules. It’s focused instead on subdivisions within Portland and Bend.

“If Measure 49 goes down to defeat, then we’ll certainly look at Measure 37 claims entering our business plans, as most home builders will,” Sebastian said. “But right now we have plenty of our own desirable land within the urban growth boundary.”


Oct 11, 2007, 5:06 PM
City’s architects hit campaign trail
Portland designers see passage as essential to their business plans
POSTED: 06:00 AM PDT Thursday, October 11, 2007
Daily Journal of Commerce

Portland firms have built on their reputations as providers of smart, environmentally sensitive solutions. Living in a city – and a state – that upholds those values, designers say, is part of their business model.

And the passage of Measure 49, they say, will keep that business model intact.

“We have a really good story to tell about land use and planning in Portland,” architect Stuart Emmons said. “And that makes our business unique on the national stage.”

Measure 49 would revise Measure 37, which required governments to either pay a property owner when a land-use regulation enacted after the property was purchased reduced the land’s value or to waive the land-use regulation. Measure 49 would limit the number of homes that can be built on eligible properties, and it would keep commercial and industrial developments off land that isn’t zoned as such.

Design groups, as well as individuals, are putting their cash where their creativity is. Emmons is pushing for 2,000 donations of $100 each, to offset the $200,000 donation made by Stimson Lumber Co. to Measure 49 opponent Oregonians in Action. The Oregon chapter of the American Institute of Architects contributed $10,000. Boora Architects, Hennebery Eddy Architects and landscape architecture firm Walker Macy each contributed $1,500.

The Architecture Foundation of Oregon, which board members say has never before taken a political position, gave $2,000 and authored an argument for the measure in the 2007 voter guide. The AFO board, past president Bart Eberwein said, came to a “pretty organic” decision to promote the measure.

“This one measure was an opportunity to step out for a moment and say, this is important enough,” he said. “Nothing else matters if the context we’re designing in, if the Oregon landscape that we all used to take for granted, the juxtaposition of open space and really well-thought-out urban planning and demarcation and distinction between rural and urban, goes away. Then what we’re doing seems kinds of silly.”

Organizations and firms are spreading the Measure 49 message. Walker Macy in September invited 125 architectural and engineering colleagues to a “house party” in its offices to learn more about the measure – from 1,000 Friends of Oregon executive director Bob Stacey and Eric Lemelson, the Yamhill County winemaker who has contributed more than $700,000 to the Yes on 49 campaign – and about how to get the word out themselves.

The measure doesn’t have a direct effect on Walker Macy as a design firm, landscape architect Laura Herbon said, but it does have a direct effect on the Oregon landscape – and on how sustainable that landscape is.

“It’s one of the biggest issues in sustainable design – good, solid land-use planning,” she said.

Herbon is quick to point out that while the American Society of Landscape Architects Oregon chapter has adopted a Yes on 49 stance, there are market niches that aren’t as supportive.

Subdivision master planning and design, for example, is tied to developers moving forward with such projects.

For others, thriving business is tied to keeping Oregon’s landscape – and the marketing tool it provides – intact. As Emmons says, “I get work from the quality of life in Portland.”

Oct 11, 2007, 6:05 PM
How did M37 ever pass?!

Oct 11, 2007, 6:16 PM
I think it was in part a response to the New London V. Kelo decision. People are pretty defensive when they think that someone can come out of the blue air and tell you your land is not yours anymore, or so... I think you get the idea.

Oct 11, 2007, 6:23 PM
Yeah, i can understand that but the likelyhood that the govt would just swoop down and take your land for no good reason is pretty small. At least it seems so to me. I think its just a manifestation of the anti-government sentiment that a lot of people in america seem to have. Nothing wrong with that tho, its just different than what i think.

Oct 11, 2007, 8:28 PM
I have said this before, but I wasn't aware of M37 side effects and believe I even voted for the measure. It sounded good, you should be able to do what you want with your property...but in light of how broad that explanation really was, it was terrible public policy. There was a shitty No on 37 campaign and there wasn't information about how broad or nasty the measure truly was. I was duped, and it took 2 years for our legislature to finally come up with something else. Which is why I also agree with annual sessions...

but as a shamed Oregonian, I'm glad we can put some sensibility back into the planning, and still leave a landowner the chance to build a second or third house on their property for children or additional income. That I'm not against, but the massive subdevelopments, commercial claims, industrial mining operations...YUCK!

Oct 11, 2007, 8:46 PM
^A lot of people didn't know what they were voting for in measure 37. They did a good job campaigning and created a superficial sentiment that we should vote for this so the government can't tell us what to do with "our" property.
The problem was that the No on measure 37 campaign didn't do a very good job on spreading the word on what it really meant.
I'm partially at fault because I didn't volunteer, all I did was tell my family and friends to vote no.
The measure was created by non native Oregonians who bought land in Sisters that they wanted to develop. Greedy bastards!

Oct 14, 2007, 5:44 AM
What was true for Oregon in 1973 is no longer true in 2007.

I would, in fact, argue just the opposite: what with more and more of our environment disappearing, there is even greater need to protect the remnants of it! Not to mention the economic benefit of agriculture, timber, and recreational opportunities in such places.

Probably preaching to the choir on this one, but it just irks me that these ***-hole real estate maroons outside of the city can be so absolutely base.

Their only concern is their bottom line, and revoke any shred of intelligence; particularly scary when one considers the influence they do and have had in politics.

Absolute ignorance.


I am extremely surprised about the home builders supporting M49, though... never would have thought they would be motivated enough to protect inner city property from losing its value... guess these guys are getting smarter!

Dr Nevergold
Oct 25, 2007, 9:01 AM
Being a new Oregonian I've only recently paid attention to this measure. The Anti-49 group is saying that it will destroy lives and won't allow people to transfer land to heirs. What is all that non-sense about? The measure clearly states you can build several homes on land outside the UGB and do hand-me-downs within family. This measure clearly appears to be anti-sprawl and pro-UGB development, not anti-hand-me-down-farm.

BTW, I voted for 49 and submitted my ballot yesterday.

Apr 13, 2008, 3:53 AM
Dorothy English, rallying point behind 2004 property-rights campaign, dies at 95
With her case tied up in appeals, the indefatigable woman never was able to develop her Portland-area land
Saturday, April 12, 2008
The Oregonian

Dorothy English, the peppery "poster girl" of Oregon's property-rights movement, died Friday morning at age 95.

English's battle with Multnomah County, which refused to let her develop her property off Northwest Skyline Boulevard outside Portland, was a rallying point in the Measure 37 campaign in 2004.

Property-rights activists deployed the widow in campaign advertising, portraying her as a victim of unfair land-use rules. It was a role English relished; she was wry, occasionally sharp-tongued and always plain-spoken.

Measure 37 passed overwhelmingly, giving landowners the right to develop their property in a way that was permitted when they bought it -- or get government compensation.

More than 7,000 property owners filed claims to build extensive subdivisions and other projects, most of them on farmland or forestland. English, who had owned her 20-acre property since 1953, filed to split her acreage into eight homesites and divide them among her family.

But English never developed her land despite winning initially at the ballot box and in the courtroom. When she died, her case was locked up in appeals.

"I haven't got anything, period," English fumed in December. "And I'm furious."

English's inability to develop her property was one of the "great tragedies" of the property rights fight, said David Hunnicutt, president of Oregonians in Action, the sponsor of Measure 37.

"Many times over the last couple of years I told her, 'My goal is to get this resolved for you while you're still with us, so you can enjoy the fruit of your labors,' " Hunnicutt said. "Unfortunately, we didn't get there."

In December 2006, English won a $1.15 million compensation claim against Multnomah County. She also won a ruling for about $440,000 in attorney's fees. Both rulings are on appeal.

As English's case slogged through the court system, the property-rights tide changed dramatically. Oregon voters approved Measure 49 in November 2007, limiting subdivisions and commercial and industrial developments approved under the earlier Measure 37 but giving many claimants the right to build one to three homes.

Hunnicutt said English's work paid off for thousands of Oregon families. Even though Oregonians in Action opposed Measure 49, the group considered it a step forward in restoring limited development rights to people.

English's attorney, Joe Willis of Bend, said he was "deeply saddened she died before we could bring this litigation to a just result to her."

But English's grandson, Douglas Sellers of Hillsboro, said the land-use fight probably kept her going. "It certainly kept her blood a-boiling," he said.

As recently as Wednesday, English asked him to check The Oregonian for articles about land-use issues, Sellers said. She also asked him to read her horoscope, which she checked daily.

The lack of a successful conclusion is a "very difficult thing," Sellers said. "To have it in limbo for so long is very disheartening."

English's property was unzoned when she and her late husband, Nykee English, bought it more than 50 years ago. When she later sought to divide it, she learned the county had changed the zoning and would not allow the split.

English was born in Summerville in eastern Oregon. Her mother died when she was 9, and her father died the following year, so she was raised by her grandparents, Sellers said.

She lived in La Grande and Pendleton before moving to Portland with her husband in 1953. For a few years, the couple operated a cafe in North Portland, which English later turned into a craft shop. She specialized in making artificial flowers.

Her husband was a railroad worker for a time but was injured and had to quit. He then assisted her in the craft business.

Sellers said his grandmother's health began to fail last winter. She suffered a series of falls and showed signs of advancing dementia. She was hospitalized in March and telephoned Hunnicutt to say goodbye.

"As a lawyer, most of the time you try not to develop friendships with your clients," Hunnicutt said. "But she was not just a client of mine, she was my friend, and I miss her already."

English died at her home about 6:15 a.m. Friday.

She is survived by her daughter, Christie Verhoef; grandsons, Donald Sellers, David Sellers and Douglas Sellers; and a great-grandson. Her son, Larry English, died earlier.

Planning for a memorial service is in the works, Douglas Sellers said.

Eric Mortenson; 503-294-7636; ericmortenson@news.oregonian.com For environment news, go to http://blog.oregonlive.com/pdxgreen