Effects of land use proposal argued.

Byline: David Steves The Register-Guard

Mary Hansen says she could cry when she considers life if Measure 49 passes.

At 67, she and her 71-year-old husband, Martin, are ready to give up ranching on their 290-acre spread outside Eugene and live off their land.

Specifically, they'd like to live off the value the land holds if it could be divided into 22 buildable lots.

When Measure 37 passed three years ago, the Hansens were among thousands of longtime Oregon property owners who began to take advantage of the law by making plans to subdivide or otherwise develop their land in ways that were permissible back when they acquired it but became restricted by zoning regulations and land use laws adopted along the way.

But with 6,700 claims filed, many for large rural subdivisions, billboards and other controversial developments, the governor and Legislature last spring came up with a plan to rework Measure 37. That plan, Measure 49, would limit the number of homes to 10 per claimant, and would forbid commercial and industrial developments on farm and forest land.

Proponents see Measure 49 as a compromise that will permit the kinds of development they say voters thought they were voting for in 2004 through Measure 37: a few rural houses on farm and forest parcels, so that aging owners can pass along homes for their children or retire on the nest egg their land was supposed to provide.

That's what the Hansens had in mind in the 1960s, when they bought the four adjacent parcels that make up their ranch off Pine Grove Road west of Eugene. Land use and zoning laws that went on the books from the 1970s into the 1990s clouded the future they envisioned, until voters passed Measure 37.

Since its passage, the Hansens have spent countless hours and thousands of dollars pursuing their claim under Measure 37. But the 10-house cap that Measure 49 could impose threatens to undermine their efforts.

"We've spent all this money and if Measure 49 passes, it's down the tube. Everything is down the tube," Mary Hansen said.

Another rural Lane County resident, Kristi Holaas, voted for the property rights measure. The Measure 37 campaign encouraged voters like herself to come to the aid of an elderly widow whose long-held hopes for few homes on her land just outside Portland were being snuffed out by inflexible, unreasonable land use restrictions.

In hindsight, Holaas said, the campaign to pass the measure presented a post-37 Oregon far different from the one that's now rising up on the forested, pastoral landscapes that she feels have helped define the state's character.

Among the 393 claims filed in Lane County, it's the pursuit of a 157-house development near her home between Pleasant Hill and Creswell that has Holaas regretting her support for Measure 37 and hoping for a Measure 49 win. If a majority of voters follow suit, Holaas said, then Oregonians will get the land use flexibility that Measure 37 promised, but not what she feels is the inappropriate development it is delivering.

"I think a lot of us fell for the grandmother who wanted to subdivide her property for her grandchildren. We fell for her story and we all got duped," Holaas said. "We had no idea that this would happen."

Holaas and her neighbors have banded together to fight the proposed subdivision, which would go up on 500 acres that have been optioned to a developer by owners who have moved to central Oregon. The neighborhood group has cited worries about traffic dangers, depleted groundwater supplies and the erosion of a rural lifestyle enjoyed by farmers, foresters and families that simply choose to live the country life.

Measure 49 wouldn't allow such large-scale projects. But with so many Measure 37 claims already filed, will its passage come in time to derail them?

The answer lies in a common-law concept of "vesting."

To be vested, a claim would have to have progressed beyond the paperwork stages, Lane County Planning Director Kent Howe said. Under the new measure, Measure 37 claims that are vested would be allowed to proceed; those that are not either would start over under the new law, or the landowners would keep pursuing their Measure 37 claims and deal with the legal process, Howe said.

"It takes at least construction for that vesting to have occurred, as we understand, anyway," Howe said. "A few people are going to be able to have that construction in place by November or December, when Measure 49 would go into effect, so I think it would have a significant effect on claims in Lane County."

As Howe sees it, that effect would result in claims for subdivision-style developments being scaled down to two or three home sites per rural land parcel.

But the head of the campaign to defeat Measure 49 said he sees far more drastic results for landowners. Dave Hunnicutt, a land use lawyer and president of the property-rights group Oregonians In Action, said the measure may sound like a win for both sides of the Measure 37 fight. But after reading through it with a lawyer's eye, he said Measure 49 is riddled with flaws that undermine its promises of restored property rights to long-time landowners.

"I think the average Oregonian would like to see some sort of compromise, not a repeal - and that's exactly what (Measure) 49 is," he said.

Hunnicutt cited two provisions that would prevent it from delivering the kind of modest development opportunities the measure aims to allow.

For those who want up to three houses, Measure 49 offers what its authors dubbed an "express lane" that's more streamlined than the Measure 37 process. But Hunnicutt said the actual drafting of Measure 49 won't allow it to work as advertised.

"I don't think most people will qualify because they've changed the standards," Hunnicutt said.

The specific problem - Hunnicutt said he doesn't know if it was an error or intentional - is that under Measure 49, claimants must establish that land use regulations "prohibit" them from building a house or establishing a lot or parcel.

That's a much tougher standard to meet than to show that regulations "restrict" development, as Measure 37 and other sections of Measure 49 require, said Hunnicutt, noting that a requirement to make $80,000 in farm income before a house can be built would be considered a "restriction," but not a "prohibition."

Another main component of Measure 49 also suffers from a drafting flaw that will undermine property owners' ability to develop their land, Oregonians In Action claims. This is the provision meant to allow from four to 10 houses on land where such development had been restricted following the owners' acquisition of the property, provided the claimant can prove financial losses.

Hunnicutt said the steps required of claimants are too costly and burdensome: separate appraisals for each regulation that caused financial loss, the fees that government regulators are allowed to impose, and the legal expenses involved.

"Nobody - and I mean nobody - will ever qualify for four to 10 homes under this measure," he said.

Shelly Strom, spokeswoman for the campaign to pass Measure 49, dismissed such claims as part of a "strategy to obfuscate the truth of Measure 49 and the real problems that have arisen" through Measure 37.

"Not only are our opponents miscasting and overstating the provisions of Measure 49, but they also are trying to incite fear," said Strom, who is with the Yes on 49 Coalition.

Check out David Steves' Capitol Notebook blog at www.registerguard.com/capnote. He can be reached at [phone] or

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MEASURE 49

Pro argument: This is what voters thought they were establishing when they voted for Measure 37: the right of longtime property owners to put a small number of homes on their rural land. Measure 49 stops controversial rural subdivisions.

Yes campaign contact: www.yeson49.com; [phone]

Con argument: This goes too far in reducing the property rights voters approved for landowners - especially farmers, woodland owners and those who want restored rights to use their land for more than 10 home sites. Flaws will prevent it from delivering even the modest property rights promised.

No campaign contact: www.stop49.com; [phone]

What it does: This measure modifies Measure 37, the 2004 property-rights law. Claimants may build up to three homes if that was allowed when they acquired their properties. Claimants may build up to 10 homes if they have suffered reductions in property values that justify the additional home sites.

Subdivisions are not allowed on high-value farm and forest lands or where groundwater is restricted. Measure 49 would not allow commercial or industrial developments on land zoned for homes, farms, forests and other uses.

The measure extends home-building rights to surviving spouses whose claims are not eligible for compensation under Measure 37. And it allows claimants to transfer their home-building rights to new owners.