Oregon could portend our land-use destiny

NEWBERG, Ore. -- For 2 1/2 years, Cliff Anderson searched without success in the Willamette Valley for the right plot of ground to make his dream come true: planting and nurturing a vineyard of high-quality grapes for wine.

Then he checked out 20 acres of hilltop pasture for sale west of Newberg.


		Scott Eklund / P-I
	Cliff Anderson fears a planned subdivision, on land previously limited to farming, will spell the end of his vineyard near Newberg, Ore.

"It was love at first sight," Anderson, 60, said recently outside the winery perched atop the land, which he's owned for 16 years.

Thousands of vines for pinot noir, chardonnay and pinot gris grapes cascaded down the steep slopes, their leaves bright yellow in the autumn sun. Groves of hazelnut trees stretched across the flat land below while rolling hills framed the eastern horizon.

But there's a serpent in Anderson's paradise.

In 2004, Oregon voters overwhelmingly approved Measure 37, a ballot initiative that threatens to unravel the restrictive land-use regulations that have put the state at the forefront of efforts to channel growth and control development.

Property-rights advocates see Measure 37 as the first shot in a wider revolution. They've put a similar measure, Initiative 933, on the ballot Tuesday in Washington state, along with others in Idaho, California and Arizona.

Although the initiatives are different, what's happening in Oregon with Measure 37 gives clues to what could happen in Washington if I-933 passes.

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Along the edge of Anderson's vineyard stretch 51 acres of pasture, timber and hazelnut orchard owned by Merlin and Sandra LaJoie. The LaJoies are looking to use Measure 37 to transform their restricted-use farmland into a 20-home subdivision.

To Anderson, that's very bad news.

"I've got over $3 million invested in this place, and I stand to lose it," he said.

Farming -- even growing the high-class grapes for his premium Anderson Family Vineyard wines -- is a dirty business, he said, and it's incompatible with suburban living. He sprays sulfur on his vines, spreads pungent fish fertilizer in his vineyard, and cranks up his tractors at dawn. Should a subdivision move in next door, the noise, smells and dust are sure to generate complaints, Anderson said, and he'll be outweighed politically by dozens of homeowners.

"It would just break my heart," he said.

Sandra LaJoie thinks that battle has already been lost.

"This area has changed so much," LaJoie, 60, said. "It's becoming kind of a suburb out here. So eventually it will be hard to farm. It's kind of hard to farm now, with dust and sprays, and we have lots of houses around us."

The LaJoies bought their land in 1974, just when the state was drawing up its extensive land-use controls.

"We always thought this place could be divided," she said. "Then they changed the regulations and said you couldn't do that."

Changing the rules in the middle of the game smacks of unfairness, and that logic helped propel Measure 37 to approval.

The campaign for Measure 37 enlisted Gene and Barbara Prete, �migr�s from California who bought 20 acres near Sisters in eastern Oregon in 1990 with plans to build a retirement home there. That vision died, or at least lapsed into a coma, with the land-use regulations, which require an agricultural income of $80,000 for building even one dwelling on farmland -- a threshold the Pretes say is impossible for them to clear.

"Fortunately, the people of the state could see that what was in place was not right," Gene Prete, 67, said.

"The basic thing is, you buy a piece of property with certain rights at the time," he said. "After you buy it, somebody, state or local, changes the rules and says now you can't use it for the purposes you could use it for when you bought it. Then your property is partially devalued."

Measure 37 says that property owners should be compensated for any reduction in the value of their land that resulted from regulations adopted after their purchase. Otherwise, those regulations are to be waived.

But the measure did not provide any money for compensation. In practice, "pay or waive" plays out as "waive."

Of the more than 3,300 claims filed to date, representing more than $6 billion in potential compensation, only one is known to have brought a government offer of cash. Roughly 90 percent of the claims decided so far have been approved, with the challenged regulations waived, according to Sheila Martin, a land-use researcher at Portland State University.

Despite their role in the election campaign, the Pretes' one-house application is not the usual Measure 37 claim. The LaJoies' case is far more typical: a request to convert restricted farm or forest land into a subdivision, in a part of the state -- the Willamette Valley, metro Portland, the I-5 corridor -- where surging growth creates pressure for housing development.

In effect, Measure 37 is a pro-sprawl initiative.

"There is a lot of bad development waiting in the wings," said Eric Stachon, spokesman for 1000 Friends of Oregon, a land-use advocacy group that opposed the initiative. "If all the Measure 37 claims get built out, then Oregon as we know it will cease to exist."

Not so, said Ross Day of Oregonians in Action, the property-rights group that spearheaded the proposal. Before Measure 37, he said, only 2 percent of the land in Oregon was open to development; with Measure 37, that might increase to 2.5 percent.

"At least from that perspective, that's really not a tremendous change," Day said of the effect of Measure 37. "But what it has done is given hope to property owners, hope they didn't have before -- people who were told they couldn't do anything with their property."

So far, the hope hasn't translated into much actual construction: Martin said she's heard of just one groundbreaking on a single-family home brought about by Measure 37. Partly it's because property owners still need to obtain septic and building permits. Partly it's because some filed shoot-for-the-moon claims they don't plan to exploit right away.

But there's another hang-up that has bedeviled Measure 37 and ultimately could determine if it reshapes the landscape of Oregon or merely tweaks it: a web of legal disputes.

"I'm pretty sure the lawyers are doing pretty well right now," Martin said.

The process went on hold for several months before the state Supreme Court affirmed the constitutionality of Measure 37 earlier this year. More than 80 other lawsuits have been filed against the state over Measure 37, including one by the LaJoies, whose application was approved for only part of their property.

Still to be determined is the critical issue of "transferability": Does a Measure 37 waiver apply only to the property owner who received it, or can it be passed along to a buyer? The uncertainty has stalled investment in Measure 37 developments. If the courts ultimately rule against transfers, that could squelch all those subdivision plans.

The Washington state initiative is considerably more complicated than Measure 37 and seems certain to generate a storm of litigation if it's approved.

Martin hopes that even if I-933 fails, the threat it poses will bring the contending sides together in Washington to work out an agreement on land use.

She is sympathetic to the plight of people like the Pretes. Oregonians, she said, support private-property rights -- but they also recognize the value of land-use planning.

"The challenge is in finding solutions that are not so blunt as something like a Measure 37," she said.

I-933, she said, won't be any better.

"This is the problem with initiatives," she said. "They end up being black and white, and there's no way to negotiate a better solution."

P-I reporter Gregory Roberts can be reached at 206-448-8022 or gregoryroberts@seattlepi.com.

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