Measure 49 housing boom is a bust
Paperwork and a poor market stymie owners looking to build on rural property.
View full sizeNear Gaston, Jim Beecher is building one of the state's handful of Measure 49 developments.GASTON -- It may help that Jim Beecher is in his 80s, raised crops for years and thereby gained the patience and perspective that age and farming instill. Building a house on one lot and placing a triple-wide manufactured home on another required an estimated 50 trips to the Yamhill County planning department over the past year, multiple surveys and inspections, wrangling over well and septic systems and spending thousands for permits and fees.
But Beecher is one of the lucky ones. In the three years since voters overwhelmingly approved Measure 49, which was supposed to give rural landowners the right to build a few homes, only a handful of people have built anything. Beecher's four-bedroom home, rising amid the oak trees off Cunningham Lane, is a rarity.
"I feel like it was an act of God, frankly," Beecher says.
From Measure 37 to 49
It's never been easy to mesh personal property rights with the goals of statewide land-use planning, and the clash has played out in Oregon's elections and courts.
Measure 37 in 2004 gave owners the right to develop their land in a way that was legal when they bought it, and a flood of frustrated landowners filed claims to do just that. Many were older, rural Oregonians, longtime property owners whose options had been zoned out from under them as statewide land-use planning took hold in the 1970s and 1980s.
About 6,500 people filed claims demanding compensation for lost property value or a waiver of land-use rules. Oregon's counties and cities, with no money to pay the millions in compensation, routinely waived rules.
The result was alarming. Property owners, at least on paper, gained the right to build vast subdivisions statewide. Filings to build 100 homes on 100 rural acres were not unusual, although owners often said they didn't intend such large-scale development. Many said they'd been encouraged by attorneys to file such claims only as a "placeholder" legal strategy that would preserve future development rights.
But the filings gave opponents ammunition to shoot down Measure 37.
Measure 49 replaced Measure 37, eliminating extensive rural subdivisions but giving original claimants three options:
Allows one to three homes under the "Express Lane" process.
Allows up to 10 homes if property owners prove by appraisal that land-use laws reduced their property value.
Property owners can finish big projects if they spent enough money and did enough work before the law changed to establish a "vested right" to continue.
About 4,600 of the original 6,500 Measure 37 claimants refiled Measure 49 applications.
-- Eric Mortenson
But little construction has occurred in the three years since the fix. Some claimants have been turned down for what lawyers say are hyper-technical reasons, counties are interpreting the law differently and -- yes -- land-use attorneys are parading to the courts for help.
"This was the so-called fast track that was supposed to be easy," says Dave Hunnicutt, president of the property rights group Oregonians in Action.
Oregon City lawyer Kristen David says the state rejected some of her clients' development plans and about two dozen have simply given up. She's asked judges in Clackamas, Hood River and Jackson counties to review and reverse the state findings.
"I ended up with over 75 Measure 49 clients, and a good deal of them got no relief at all," says Oregon City lawyer Kristen David. "Measure 49 was deemed great -- everybody would get up to three houses. But it didn't at all turn out to be that way."
Building a Measure 49 house was like an "act of God," Beecher saysAbout 4,600 claimants filed for development rights under Measure 49. The state official in charge of approving them says the grumbling is overstated. Eighty to 85 percent of claims were approved and "hundreds" of property owners have taken initial steps to build a house, says Richard Whitman, director of the Department of Land Conservation and Development.
Perhaps 10 to 20 property owners were turned down because at some point they had a "straw man" deed transfer for a couple days. Temporary deed transfers, often done for tax reasons, technically interrupted their ownership and made them ineligible for Measure 49 approval.
It's unfortunate, Whitman says, but "the way 49 is written we don't have discretion on that." Only the Legislature can address the problem.
Otherwise, the poor housing market is primarily to blame for lack of construction, he says. In other cases, property owners didn't intend to build right away and are sitting on their development rights,Whitman says.
Whitman's department and the Department of Justice spent two years evaluating Measure 49 claims and finished this summer.
But hammer blows haven't followed the paper shuffle. Washington County planners say they handled 20 land partitions in 2009 -- the first development step -- and another dozen this year. Records aren't exact, but planner Tom Harry says a couple of houses have been built. Clackamas County processed 56 partition applications since 2008 but only a handful took the next step of recording a plat and only one building permit has been issued, Senior Planner Jennifer Hughes says.
In Yamhill County, Jim Beecher is the pioneer and his case illustrates some of the process vagaries. One of the major selling points of Measure 49 was that development rights approved under it were transferable if the property changed hands. Beecher bought a house and 60 acres from the family of Lillian Brown, who had filed a Measure 37 claim and followed it up with a Measure 49 filing. She died in 2009 before approval was granted, but Beecher was able to legally assume the development right with ownership.
Because the property had one house, Beecher won approval to build two more under the "express lane" provision of Measure 49. In an attempt to reduce the impact on farmland, the measure limits new homesites to two acres or less and requires them to be clustered. Beecher gained county approval for a plan that showed a pair of two-acre homesites tucked into the far edge of the property.
Beecher and his real estate adviser, Ron Sattler, then returned to the county for a lot line adjustment that gave them what they really wanted: A five-acre lot where the manufactured home now sits, a 22-acre parcel on which Beecher is building a new family home, and about 32 acres with the original farmhouse, which Beecher subsequently sold.
Yamhill County's after-the-fact adjustment of the lot lines wouldn't fly elsewhere.
"Our position is that's not acceptable," says Hughes, the Clackamas County planner.
Whitman, the land conservation and development director, frowns about it, too. While lot line adjustments are a routine land-use action, the legislation clearly intended to limit Measure 49 development to two acres or less, Whitman says. However, the state won't intervene.
"Frankly, we've got our hands full," Whitman says. "We're at the point where we have to let the counties carry this out."
Hunnicutt, of Oregonians in Action, says the legislators who drafted Measure 49 didn't realize that people who move to the country want five or 10 acres, not two.
"I don't think there's anything nefarious about it," he says. "It (Measure 49) calls for small parcel sizes, but once they're created there's nothing that says you have to keep it that way forever."
Beecher says he had trouble with what he calls the "fiction" of fitting the homes, wells, septic tanks and drain fields within the confines of two-acre lots. Each adjustment of the lots was costly, he says. "Every time you survey, ka-ching, ka-ching."
Beecher was adept and persistent in following the Measure 49 process, says Sattler, his real estate agent, but other property owners might have given up.
"It's been difficult getting a clearly defined set of rules to follow," Sattler says. "In a rural area, acreage will sell, it's just that the process is so difficult and so time consuming that it's very, very difficult."
Beecher and his wife, Marilyn, will live in the four-bedroom, three-bath house with their 34-year-old granddaughter, who is disabled.
With luck, the house will be finished this fall.
--Eric Mortenson
