A new low for land-use laws?

A new low for land-use laws?
by Dave Hunnicutt,
guest opinion in The Oregonian

Land proposed for a destination resort in the Metolius Basin west of Sisters. This is a view from one edge of the land, looking toward Three Fingered Jack (left) and Mt. Jefferson.I know it’s not shocking when a politician talks out of both sides of his mouth, but Gov. Ted Kulongoski is becoming a master at this craft.

In November 2007, Oregon voters approved Measure 49. The official ballot title for Measure 49 proclaimed that the new law would, “modify” Measure 37, the property rights ballot measure that Oregonians had previously approved in 2004. Measure 49 was the product of the Oregon Legislature and Ted Kulongoski. In fact, Kulongoski was instrumental to the passage of the measure, both professionally and personally.

The governor raised money and campaigned for Measure 49’s passage, stressing repeatedly to voters and the media that Measure 49 struck a balance between Oregon’s unique and controversial land-use planning laws and the rights of Oregonians to own and use their private property.

As the governor stated in the official Voters Pamphlet that accompanied Measure 49, “Measure 49 will deliver something bigger: a workable land-use policy that will allow us to keep our precious assets – the things that make Oregon special – and be fair to property owners.”

Within the “workable” and “fair” land-use policy in Measure 49 are sections requiring state and local governments to pay fair compensation to property owners before adopting new land-use regulations that take away property uses. In other words, if the state decides to change the rules and take away your property rights, it must pay fair compensation for what they are taking.

That seems fair. And it’s proven to be a popular idea with Oregonians. In fact, the passage of Measure 49 marks the third time in a decade that Oregon voters have approved this concept.

So imagine the surprise when Kulongoski introduced House Bill 2226 earlier this month. HB 2226 is a bill designed to do one thing – stop the development of a destination resort near the Metolius River in Jefferson County.

Despite the fact that the Jefferson County Commission carefully weighed all the arguments for and against the destination resort and followed all of the state’s land-use laws in making its decision, the governor didn’t like the outcome, and now he wants to change the law to override Jefferson County’s decision.

This is odd. Kulongoski’s stated policy has always been that the Legislature should not interfere with a local government land-use decision, as long as the local government followed all of the land-use laws. In fact, the governor used that logic in 2003 when he vetoed the Legislature’s attempt to help Dorothy English, the elderly widow from Multnomah County who became the “poster child” for Measure 37.

But the governor’s flip flop isn’t the most troubling aspect of HB 2226. What is particularly remarkable is that in the first major land-use bill since the passage of Measure 49, Kulongoski has demanded that HB 2226 contain a section that exempts the bill from Measure 49.

If HB 2226 passes, the property owners who have spent thousands of dollars, and countless time and effort to comply with lose their rights overnight, with no Measure 49 relief.

Wait a minute, governor. Didn’t you just spend considerable time and effort convincing Oregon voters to approve Measure 49? And didn’t you file a Voters Pamphlet statement in favor of Measure 49, claiming that the “workable” and “fair” policies embodied in Measure 49 were a vital part of our land-use system?

Did you really mean what you said, or were you trying to pull the wool over the eyes of Oregon voters?

If House Bill 2226 is approved, it will set a new low for Kulongoski and for land-use law in Oregon.

Dave Hunnicutt is president of Oregonians In Action.

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Posted by at 11:00 | Posted in Measure 37 | 13 Comments |Email This Post Email This Post |Print This Post Print This Post
  • Eddie

    Mr. Hunnicutt: Isn’t it true that HB 2226 doesn’t prohibit the owners of the property from doing anything with their property that they can do currently? … nor, for that matter, does it prohibit them from using their property from any use that was available to them at the time they purchased their property.

    Where is the “taking” here?

    I think a legal-minded reading of the situation will tell you that there IS INDEED a section of the bill that precludes a Measure 49 claim, but also that such a section is useless because there is no taking going on here.

    If you want to have a discussion about Legislative land use issues, that’s one thing… but your premise here is based on either a poor read of the situation or an intentionally misleading one.

  • Sagano

    Why are destination resorts so evil. Are they not new jobs, construction, new property tax revenue to rural Oregon? Not every rural piece of land can be a subsidized windfarm.

    • David from Eugene

      The big problem with Destination Resort is they do not pay their way. The property taxes they pay do not cover the costs of the demands they place on public services, particularly the capital costs of building and equipping schools, law enforcement facilities and fire stations.

  • Dave Hunnicutt


    I don’t see how you can read HB 2226 in the way that you have. Section 1 prohibits the siting of destination resorts on all land in the Metolius River Basin, except tribal land. Section 2 then suggests to counties that they consider adopting a TDR program that applies to proposed destination resorts within 10 miles of the Metolius Basin, and that requires the property owner to purchase the development rights from a property owner who can’t site a resort under Section 1. It is a flat prohibition. That is a prohibition on property use, Eddie. Why else would the legislature include the exemption from compensation under M49?

    Section 3 makes the bill applicable to any destination resort applied for on or after September 1, 2006, meaning the legislature is after someone who submitted a destination resort application after that date, or else they wouldn’t have made the bill retroactive.

    • Eddie

      Mr. Hunnicutt, I don’t know why they included the M49 preemption, but it seems wholly unnecessary given the circumstances.

      Fact of the matter is that when these lands were purchased, they were not mapped for Destination Resort siting. Currently, they are not mapped for Destination Resort siting. Where is the taking here?

      Surely, the developers in this scenario speculated that one day they might me able to re-zone their land and build resorts. But it was just that: speculation. The bill (albeit poorly written) holds the property owners to the uses available on their lands when they were first purchased. And this includes logging it if they like.

      But at the core of the issue here is that HB 2226 does not prevent any land use that is currently available to these landowners.

    • John in Oregon

      Eddie the fact is:
      The land owner followed the rules from Salem on High.
      The land owner met all the requirements.
      The land owner complied with all the requests.
      The land owner crossed every T, dotted every I, and performed every jot and tittle.

      And then when the land owner receives approval, then the King from Salem on High swoops in to smash the land owner.

      But Eddie the greater question is this. After being told that for the greater public good as determined by Salem on High, the people have given up the right to use their own property. Salem on High restricted farming, limited forestry, prohibited fishing, crushed hunting, blocked energy, and we are told that’s OK, we will make it up with tourism.

      Thing is Eddie its real damn hard to make a buck from a tourist flying over at 50,000 feet as he looks out the window and comments ain’t that State of Oregon perty? Too bad we cant go there.

      • Eddie

        John, if you want to take issue with land use planning in general, that’s a valid discussion for another time. You’re right: there IS a greater question and debate to be had.

        But you’ve been misinformed on this particular incident.

        The landowner has not gone through any siting process. It’s the COUNTY that has been going through a process, which is a very vital point to remember, because until the county completes the mapping process, the landowner isn’t going through any of the steps you’ve mentioned here.

        And Jefferson County is apparently inept at how they handled their process so far. They have:
        – Changed public meeting agendas at the last minute and without notice
        – Held back public documents
        – “Accidentally” repealed ALL land use regulations for a period of four days

        This is NOT “crossing every T”.

  • John in Oregon

    Eddie…. Yes, Eddie I know the temptation to focus, to narrow the scope to the “particular incident,” to exclude the environment in which the “Particular Incident” exists.

    The “particular incident” as you call it is the Lesser included, the sub set of the general super set. The superset being in this case the rules and process handed down from Salem on High. Particularly when its Salem that is handing down now this latest new revelation and commandment. The latest damned upon the landowner.

    Make no mistake it is the landowner, *all of them,* that navigates the labyrinth of the warrens in the bowls of regulation.

    As to Jefferson County, cast in the roll of the sheriff of Nottingham, in servitude to the rules of Salem on High. I appreciate the talking points of the litany of the apparently inept Jefferson County.

    So obviously the opposition took the inept county to the woodshed of the courts of Salem on High. Right? Wait, let me check that out.

    My ohhh my. They, the opposition, did. And I bet you cant guess what?

    The inept Jefferson County destination resorts overlay survived an extensive public process that has already *withstood multiple legal and administrative challenge.*

    Eddie the problem is this. With particular incident after particular issue the actions have been the same. For timber, farming, water, industry, LNG and any other issue. Whenever the local dolts dared choose contrary to the world view of Salem on High the results are the same. Salem on High steps in to smash the insolent local dolts. The land owner. The people.

    The Declaration of independence under which I and my parents before me grew up states; “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, *deriving their just powers from the consent of the governed…”*

    And yet this issue we discuss today turns that declaration exactly upside down, upon its head. That the people derive their limited rights from the consent of the Salem on High.

    • dean

      John…hate to barge in, but we do not live under the Declaration of Independence. We live under the Constitution, and under its Health and Welfare Clause governments have long had the right to regulate land use in the public interest. You or I might not like the State deciding to interfere with a County land use decision, and it may be unfair to the landowner, but they do have the Constitutional authority to do so.

      And if the governed (us) don’t like it we can elect different legislators.

    • Eddie

      Good point, Dean.

      John seems to rail (sometimes incoherently) against what he calls “Salem on High,” as if these were self-appointed warlords.

      At some point, John’s got to realize that the cost of living in a democracy is that sometimes you’re in the minority.

    • John in Oregon

      Dean you are not barging in at all, it’s a general discussion here, you are welcome, and frankly monotonic thought is boring in your absence.

      The US Constitution of course is an important document, tho it is only one of the founding documents. More in a moment.

      The Declaration of Independence is arguably one of, if not the, singularly most remarkable document in the world.

      The Declaration is a statement of the principals upon which the founders pledged their lives, their fortunes and their sacred honor. And at the same time its much more than that, it is even far more than a simple statement of principals. Of the three pledges the founders made the pledge of sacred honor is by far the greater.

      At the writing of the Deceleration the founders were far from united that armed rebellion was the only path. Further the founders knew they must address three audiences.

      Foremost among those was the world at large. The Declaration enumerated grievances which made the declaration necessary. More, it stated that which separated the colonial rebellion from common mob rule in the street.

      Secondly, for the Crown and Parliament the Declaration was an appeal for the colonies fair share of the rights of all English people. A petition presented that might make rebellion unnecessary.

      Lastly for the People the Declaration addressed the need to lay the line of liberty in the sand. The need to stand fast and defend the liberty of the people.

      The Constitution of course came later. Other founding documents are the Federalist and Anti-Federalist Papers. The open discussion during the adoption of the Constitution.

      The Constitution its self is the document stating the limited powers granted by the People to the Government. The powers granted by the People for the purpose of securing, defending, the Liberty of the People.

      Upon these three pillars, the Declaration, the Papers, and the Constitution is placed the Bill of Rights. The statement of the inherent, natural born, rights of the People.

      The Declaration of Independence illuminates these Unalienable Rights. They are unalienable. Not to be separated, given away, taken away; inalienable, incapable of being repudiated or transferred to another.

      In the Declaration the founders spoke of Liberty. The right and power to act, believe, or express oneself in a manner of one’s own choosing. A right to engage in actions without arbitrary control or interference from despotic government.

      The founders chose not to use the word freedom, the ability to act without constraint. Instead they chose Liberty, the right to act while taking responsibility for the consequences of ones own actions.

      To Liberty the founders pledged their lives, their fortunes and their sacred honor.

      Dean, I assume your reference to the Health and Welfare clause is to Article 1, Section 8, Clause 1. Normally known as the General Welfare clause.

      This language; “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States,,,”

      In colloquial language this is the tax and spend clause, which authorizes the collection of taxes and spending of money. While some hold this authorized the Federal Government to intervene in the transactions between private individuals or the people and the various states, that is thin gruel at best.

      By the way Eddie, the people are never in the minority. Nor is the individual either. For the Rights of the People there is no majority nor minority.

      The reference to Salem on High simply accurately describes the actions of a Governor and bureaucracy which views that power is inherently invested in themselves and the people are subject to the dictates of that power.

      • Eddie

        John, what can I say?

        Your lucid writing, your inescapable logic… your steel-trap understanding of the sacred founding documents of our nation.

        I can see it’s no use arguing with the likes of you.


        • John in Oregon

          Thank you. Several luminaries once said the same of both William F Buckley and Gene Vidal.

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