Absurdities of Measure 49

The campaign is in full swing on Measure 49 and you are wondering what to do. You know you don’t believe the special interests supporting Measure 49 and you are pretty sure they are a bunch of weasels. You’re not sure you believe those opposing Measure 49 because you have been inundated with a parade of horrors by the newspapers for the past year regarding what might happen if Measure 37 isn’t “fixed”. You know that the newspapers regularly adopt this alarmist approach and that their dire predictions of an impending calamity are never true, but still you are worried.

So what do you do? Well you read the “official” ballot title – AND THAT IS JUST THE POINT. The environmental lobby knows that when voters are in doubt, they rely on the ballot title. They also knew that if they followed the rules that have been in place for decades regarding the construction of ballot titles by the attorney general, they would not get the kind of slanted, biased and misleading ballot title that they produced by avoiding the process.

That’s precisely why the groups that have contributed nearly $2,000,000 to pass Measure 49 wrote the “official” ballot title for the measure, and convinced their allies in the legislature to exempt themselves from the same requirements that every other citizen in Oregon must follow regarding a ballot title. That is precisely why they barred the Oregon Supreme Court from reviewing the “official” ballot title. They knew that unless they cheated they couldn’t win.

So they created a ballot title that polls well and has very little to do with the actual contents of Measure 49. In fact, in some respects the title promises the exact opposite of what the bill will accomplish. They passed a ballot title based upon polling done by the Nature Conservancy and the pollster for the yes on 49 campaign. And even though the governor’s office sought to withhold that information from the public, there is in fact an e-mail from the Nature Conservancy to the governor’s office detailing precisely the language that should appear on the ballot title. It is the best ballot title that money could buy.

The ballot title contains a so-called summary of the provisions of Measure 49. It states in part:

“Modifies Measure 37 (2004) to give landowners with Measure 37 claims the right to build homes as compensation for land use restrictions imposed after they acquired their properties. Claimants may build up to three homes if previously allowed when they acquired their properties, four to 10 homes if they can document reductions in property values that justify additional homes. . .”

That is the exact opposite of what the measure actually does. Measure 49 does not “give” landowners any rights to build – they already have that right under Measure 37. It doesn’t give them the right to build as compensation for land use restrictions imposed after they purchased their land – they already have that right under Measure 37. What Measure 49 actually does is restrict those existing rights.

And here’s how.

First, if you have a Measure 37 claim in the city, the right to build as compensation for land use restrictions imposed after you purchase your land doesn’t apply to you. You’re just out of luck. Didn’t know that? You aren’t supposed to – that’s why the ballot title is crafted as it is.

Second, the right to build up to three houses if you live outside the urban growth boundary only applies if the land use restrictions PROHIBIT the use of your land – that means you are unable to use your land for any purpose – not just for purposes of building a house. The current law allows you to build a house if the land use regulations merely RESTRICT your use. That means any diminution in the value of your land caused by such land use regulations must either be compensated or waived by the government. Eliminating that is certainly not GIVING you something. It is, in fact, taking something you already had. Didn’t know that? You aren’t supposed to – that’s why the ballot title is crafted as it is.

Third, the right to build in excess of three houses on your land requires you to go through one of the most bizarre and expensive process that bureaucrats could ever conceive. In order to enforce your right, you have to pay a substantial application fee and then you have to supply two appraisals for each regulation that has reduced the ability of you to use your land for the purpose for which you purchased it. For most parcels of land, that entails five to six regulations adopted since the 1970’s. That means there are ten to twelve separate appraisals that you have provide with your application. Each appraisal is likely to cost at least $500. But that isn’t the end. You then have to pay for the state’s appraisals for the same piece of land. If you have twelve appraisals, you have to pay for twelve more appraisals by the state. Twenty-four appraisals at a minimum of $500 apiece mounts up quickly – $12,000 – in addition to the application fee and the cost of your lawyers to make the application. And win or lose you cannot recover those fees.

Most claims filed by Oregonians under current law are by small landowners – many of them elderly, many seeking to provide land for their families to build upon, many hoping to supplement or provide their retirement income. Most cannot afford these kind of costs and still face the likelihood that they will lose. Or even if they win the cost will have been so high that they cannot proceed with the actual building or development.

Didn’t know that? You aren’t supposed to – that’s why the ballot title is crafted as it is.

But that’s not all. There is a fourth proviso. Even if you could somehow afford to pay for all the appraisals and jump through all the hoops required by Measure 49, these rights don’t apply if the land is determined to be “high value” agricultural or timberland. That designation applies to about ninety percent of the land outside of the urban growth boundaries in the Willamette Valley where most Oregonians reside. Again, you are just out of luck.

Didn’t know that? You aren’t supposed to – that’s why the ballot title is crafted as it is.

One of everybody’s favorite college novels was Catch-22 by Joseph Heller. First published in 1961, it tickled the noses of college students and others about the absurdity of bureaucratic operations and reasoning. Catch-22 became the common reference to describe a no-win situation in which it became impossible to alter an outcome no matter how many hoops you jumped through. Every time Yossarian would overcome a governmental rationale regarding his status as a combatant, there would be an exception to the rule – Catch-22 – which sent him right back to the governments pre-determined intention – which was to send him back into combat.

There is a famous exchange in the book in which Yossarian finally acknowledges the futility of his efforts:

“That’s some catch, that Catch-22,” [Yossarian] observed.

“It’s the best there is,” Doc Daneeka agreed.

That is the essence of Measure 49. While the ballot title promises much, the language of the measure finds a way to negate every one of those promises.

And that is precisely what the supporters of Measure 49 intended when they first sought to cheat on the way the measure is presented to the voters. They can’t win unless they cheat and cheat they have to your detriment.

  • Jerry

    People who are pushing 49 are simply communists. They want nothing left to the private sector. They want total control over other’s lives. It is as simple as that.

    They have no other motivations whatsoever.

    They are bad people and must be defeated.

    Oregon is in a sad state of affairs when a bunch of left-wing loons take over the state and turn it into a commune.

    Why so many willing accomplices? I guess there are a lot of closet communists in Oregon.

    Wake up people.


    Vote NO on 49!

  • Peter Bray

    Vote Yes on Measure 49.

    For the love of communism! 🙂

    • Peter Bray

      (That was a joke incidentally. Measure 49 proponents are hardly communists! Yeah, Phil Knight a communist… ha!)

  • Peter Bray

    Oh, and Bob Pamplin a communist? He supports M49.

  • Jerry

    Maybe you guys don’t understand who and what the commies were. Both those guys you mentioned fit the bill. Live well, control others, keep others down, allow no freedoms. Just because they have money does not mean that they are not commies.
    These pro 49 people are dangerous and foolish and need to be called out for who they are. Commies. Plain and simple.

  • anon

    Bray is nothing more than the useful fool. Wrongheaded.


    Anyone seen any polling on M49 or 50 lately? I’ve been looking but haven’t found anything current.

  • carol

    READ THE MEASURE!!! For crying out loud. It’s to be found on the web-site for Oregon Secretary of State Elections Division, under text of measure. Every thing that Mr. Huss says is true. For God’s sake, before you vote, READ THE MEASURE,not just the ballot title.

  • Jared

    Despite Hunnicutt and Day paying themselves six-figure salaries, last I heard, OIA lost its lawsuit challenging the ballot title. Courts have found what happened to be perfectly legal, i.e. following the legal process.

    Stop your whining and try to convince people that we should sell out Oregon to developers.

  • carol

    Have you read the entire measure? Really read it?

  • Jared

    Yes I have ** have you

  • carol

    Of course I have read it, but I’m an equestrienne, two acres is not enough to keep a horse properly,andI’m not so sure that LCDC is the one to oversee claims.

  • Jared

    I’m really confused by what you said. Counties and cities oversee claims. They implement statewide laws. Appeals go to the Land Use Board of Appeals.

    Are you saying you wanted to build a horse jumping facility on farmland? And they would only approve it if it was smaller than 2 acres?

  • Shirley

    “Stop your whining and try to convince people that we should sell out Oregon to developers”

    Jarod, youv’e been duped. M37 isn’t selling out Oregon to Developers. Quite the opposite.
    There are so few M37 claims and very few more coming M37 will be
    barely noticeable. Both on the landscape and on our land use planning.
    However there is some selling out to developers happening. It’s by Metro and many municipallities ahs they hand over countless millions to developers to build the overcrowded messes like the Beaverton Round and SoWa with it’s Tram.

  • carol

    I don’t need an arena, I have ample room, surprise, I’m not thinking of myself, but lots of little horse crazy little girls who would like a place to keep a horse or two. There will apparently be no claims approved for more that 2 acres, not enough to properly have a horse, especially if one of the other three lots that are ‘clustered near yours, disapprove. And as near as I read the measure, the state, ie, LCDC will be in charge of approving and siting claims. I tried to go onto the site where I found the entire measure, Oregon Secretary of State Elections Division, and it is no longer available on that site. Damn!, I looked for a long time to find it, and I have printed several copies, but have given them away. I won’t take a positive stand on the LCDC thing, cause at my age, I forget. you say you have read the entire measure, access your copy, Idon’t think that cities and counties wil have any further jurisdiction. I will have a copy tomorrow, but I’ll be out of town for a week. If I’m wrong, correct me.

  • Jared

    I was told by Bill Moshofsky there would be a couple hundred claims. There are 7500, covering three-quarters of a million acres, about equal to all the land inside all 241 Oregon cities combined.

    That’s not just a few claims.

    Carol: as far as your “there will be no claims approved for more than 2 acres” — where in Measure 49 does it say that? And why can’t you just buy an existing nonfarm or farm dwelling, or buy a house on rural residential land?

    • carol

      Oh my god, you did only read the ballot title!! About mid-way thru, where it says that up to three claims per claimant, then goes on to tell all the things necessary to do. No plot shall exceed two acres, and they shall be clustered, and as near as I can tell from the legalese, the state tells where they are to be clustered. There are 21 pages, and you’d better print it off, ’cause you’ll go blind reading it from a moniter. The whole measure was on the atty gen election division web-site, but it ain’t there now. I don’t know where you’ll find it, but do so, please.

  • Richard

    There you go Jarod ignoring the real world application of M37.

    Bill Moshofsky never told you that and it’s irrelevant anyway.
    The 7500 claims represent 1.2% of Oregon but only a small part of that land would be actully lost due to the footrpints of M37 dwellings and infrastructure.
    This reality makes your “three-quarters of a million acres,” meaningless demagoguery.
    There is not 3/4 of a million acres at risk,
    There is only a realtive few subdivisions,
    There is no possibility of M37 paving over any part of Oregon,
    Jarod is confused and dishonest as he parrots the 1000 Friends of Oregon campaign.

  • Trevor Stewart

    The 7500 claims which do in fact apply to 750,000 acres are concentrated in the Willamette, Umpqua, and Rogue Valleys and on the Oregon Coast. They impact some of the ecologically and economically most significant land in the State.

    For example, two of the three counties with the highest dollar value argricultural yields- Washington and Clackamas Counties- are also the counties with the highest dollar value and acreages of Measure 37 claims. Marion and Yamhill County- also high dollar-value yield agriculture counties also have relatively high numbers, acreages, and amounts of Measure 37 claims. And impacts go well beyond just ex-urbanites complaining about noise, dust and smell. According to the Washington County Farm Bureau chair I have spoken too, the long-term impact of these claims will be the incremental break up of large acreages and the loss of local businesses servicing these lands.

    If Measure 37 claims go forward it is very likely that surrounding land not subject to Measure 37 claims will eventually be developed too to help pay for the infrastructure and services for lands developed under Measure 37 claims.

    So to say they claims “only” apply to 1.2% of the land in Oregon severely downplays the impact of Measure 37. That is like saying the human heart is expendable because it amounts to less than 1% of human body by weight. Measure 37 will cut the heart out of Oregon and Measure 49 is a last chance to fix it.

    Trevor Stewart

  • Richard

    Oh brother here we go, blah blah blah “750,000 acres”.

    What’s wrong with the likes of you? You can’t comprehend?

    Yeah there’s a talley of 750,000 acres. I’m pretty sure everyone gets that misleading talley.
    What part of construction, development, or footprint do you not get?

    It is much more honest to consider how many of those acres will be built on. You know, just like the hypocrites at Metro are planning Damascus. I think it’s 5500 acres in total. Should I run around telling people Metro is going to pave over 5500 acres?
    In reality Metro is gearing up to mandate building on half of it.

    Of the 750,000 M37 acres you blather about a tiny fraction is targetted for actually M37 dwellings and development.

    So what’s you point? Public deception?
    These few M37 claims and even less footprints of construction have no ability to wipe away or pave over any of our farm land.

    The Washington County Farm Bureau chair is making things up.
    The long-term impact of these insignificant claims will be squat.
    His specualtion about the incremental break up of large acreages is completetly concocted jibberish from 1000 Friends. So is trhe canard about “loss of local businesses servicing these lands” and “urbanites complaining”
    There are functioning farms right next to dense Metro neighborhoods all over the county and region.
    There aren’t enough M37 claims aor subdivisions to cause any significant “incremental break up of large acreage”.

    You then falsly specualate Measure 37 claims will somehow allow more land to be developed? Not by way of M37. Your scenario can only happen if Metro and the UGB allow it.
    And the M37 claims won’t be asking for or getting more development to help pay for the infrastructure and services. Like so much other 1000 lies that’s contrived.

    Your nonsense grows with your heart analogy.
    There’s nothing at all about Measure 37 that will cut the heart out of Oregon. M49 is a con job by you and yours who demand Oregonians reside in every increasingly overcrowded cities becoming increasingly dysfunctional.
    M37 barely makes a distinguishable dent in that agenda. That agenda is a far greater threat to the way of life in Oregon than M37.

    Now tell us exactly how many M37 acreas will actually be built upon?
    Let me guess, you don’t know.

    • Trevor Stewart

      “Your scenario can only happen if Metro and the UGB allow it.
      And the M37 claims won’t be asking for or getting more development to help pay for the infrastructure and services.”

      This is extremely rosey thinking, to say the least. Who do you know who is going to pay for the infrastructure? Who do you think has historically paid for the infrastructure to service growth at the scale proposed by over half of the Measure 37 claims? We all have. And we will again, and at the expense of our agricultural economy, to say nothing of the degraded water and scenic values.

      David Papsworth of Cornelius makes the point about the broader impacts of Measure 37 in the first section of this recently released video on Measure 49:


      The way Measure 37 would unleash housing subdivisions on the farflung reaches of Washington County, the entire landscape would be destroyed. This not going to happen tomorrow but if Measure 49 doesn’t pass we’ll be picking up the pieces for years to come.

      Measure 49 isn’t perfect. We are still going to see development but not at the scale that we are seeing already with Measure 37:


      Trevor Stewart

      • carol

        Don’t read the BS from any web-site, be it OIA or Yes on M49. READ THE MEASURE, all 21 pages, not the ballot title!

  • carol

    how many of those claims have actually been built on?

  • Jason Wright

    I just read that Measure 37 affects less than 1.5 % of all land in Oregon, and that the average “massive subdivision” is a single house on 13 acres!

    Wow are these Measure 49 misleading.

    The bottom line is that Measure 49 is really about what happens in the future…and Measure 49 allows government to take our property without payingus for it.

    If you wanted to address current Measure 37 claims, that would be one thing. But Measure 49 goes far beyond that and changes the takings law in Oregon forever…

    Terrible ballot measure.

  • Trevor Stewart

    “The bottom line is that Measure 49 is really about what happens in the future…and Measure 49 allows government to take our property without payingus for it.”

    This is just pure hyperbole typical of the anti-49 crowd. Is there a right to own property? Absolutely. Is there a right to use property? Absolutely. Is either the right to own or the right to use absolute? Absolutely not!

    Measure 37 establish new special “rights” to property that have never existed because never in history has the right to property meant you can do anything you want with your property. Measure 37 claims all possible speculative and development value for the owners, the rights of others and the responsibilities of landowners be damned. Measure 37 is most absurd in that it lets landowners claim value that is created by government infrastructure and services paid for by everyone. There is no way the regulations applied 30 years ago reduced property values as much as most Measure 37 claimants are asserting. They are asserting those amounts to get out of the land-use laws that apply to the rest of us. That is not fair.

    Measure 49 provides a measure of balance.


  • Richard

    Trevor, you really don’t know squat do you?
    Other than Metro speak written by nitiwit liars.

    Who pays for infrastructure?
    With the exception of Metro and city schemes with their favorite developers and Urban Renewal or TODs, every typical subdivision and commercial development over the past many years has paid for everything. On site, off site, and to and through for future development. In additon they are paying huge and rising system development, connection and permit fees.
    There cannot be ANY unleashing of housing subdivisions by M37.

    There are too few claims that qualify.
    Those broader impacts concocted by M37 opponents are campaign lies. If you buy them too bad.

    • Stephanie

      Wow, you can really tell who is winning an argument by the number of insults per line. FYI: the person typing the most insults is losing! Another way you can tell: the loser keeps bringing up unrelated issues (IE: Metro’s land use) to try to prove their point.

      Regarding long-term costs: read the argument in favor of 49 by the firefighters (page 24 of the voter’s guide). Lack of water and access will hinder the ability of firefighters to save houses. It is common knowledge that developers do not pay the full costs to our firefighters, police officers, schools, roads, public transportation, wildlife habitat or increases in traffic.

      There are definitely some things wrong with measure 47, but overall, it is better than the unmodified measure 37! If you don’t like measure 47, then it can be amended in the future.

  • Trevor Stewart


    It is you who are playing fast with the truth here… trying to make reality fit your absolutist ideology of private property rights.

    Anyone who has ever spent any time engaged in the real world of local planning or development knows that developers never pay the full costs of the infrastructure for their development. What do you think all the controversy brewing about infrastructure costs around the state and who should pay? They are starting to have to pay more because the citizens and taxpayers are getting smart to attempts freeload or dump long-term costs on the public. There is always is always a balance of public and private investment that goes into making any development happen. If you think landowners and developers are paying you my friend are living in a dream world.


  • Rob

    Trevor, Trevor, Trevor,
    My mother, age 79, is developing a four lot subdivision in Clackamas county and she is definately paying for infrastructure, road, power, water, telephone, cable, fire hydrant, etc. I realize taxes also pay for fire departments, schools etc. ir thats what you mean by future costs. I know right now her $48.23 06-07 taxes don’t pay for a lot of infrastructure, but four homes in the $350,000 range would bring in about $9000 annually (less the $48.23 0f course) I assume this amount of taxes, Which tend to rise, would cover a lot of infrastructure that my mother somehow didn’t cover, don’t you think?

  • Rob

    M37 doesn’t give the elderly land owner applicants carte blanche to steamroll over all exisiting regulations. If there isn’t enough water. or if there isn’t good driveway site availability and on and on and on they can’t just keep on going, they must meet all the other criteria. Also, you say 49 can be modified, it has taken three years under M37 to get to the point of no houses being built yet. Almost all applicants are elderly, how many more years do you want them to be in limbo until things are modified. Many of these elderly Oregonians have spent 10’s of thouseands already beccuse they were told to go ahead because it was legal, and it was under measure 37. No you want to throw them back under the bus and hope they die, I presume because you want to postpone their plans, before they can even build there first home. Where is your heart, with the dirt or with our hard working elderly Oregonians who trusted the government and the people to do the right thing?

  • John

    As much as I hate allowing the government more power, (and I truly do distrust any government body that employs more than 5 people), the 51 Measure 37 claims in my area (Banks, in western Washington County) that have been filed to build a total of around 750 houses (and an industrial hog farm with all the associated animal waste) scare the daylights out of me. We don’t have enough school room for the students now, much less the additional 500-600 students those housing developments would bring. And I know the developers won’t pay for them, and the state won’t pay for new construction. Of course, the developers don’t care, they don’t live here. Just because you own property, should you be able to put 10 houses per acre just because you think you can, regardless of the effects on the surrounding area? I think not. I voted for measure 37, but I don’t think anyone saw what was coming, the incredible number of claims for housing subdivisions and industrial sites that would totally decimate entire communities. We have only ourselves and our greed to blame.

    • Rachel

      I couldn’t agree more with what you just said. Unfortunately we only care about the here and now and our bottom line…to hell with everyone else and our future generations. THANK GOD MEASURE 49 PASSED. It’s not perfect but hopefully it slows things down. I also live in WA county and am amazed at the properties that were once farm land now being bulldozed. I found it kind of irronic that in the last month or 2 these people have aggressively been trying to get vested before the vote. I wonder what will happen now.

  • carol

    The 750 houses are effectively blocked by M49. However the industrial hog farm has been strenghened by the passing of the measure. There was no need to file a M37 claim to start an operation like that, hogs are farm animals. According to an article in the Capital Press several months ago, when a Washington chicken farmer wanted to site a large broiler operation in Mulino, he was protected by the fact that the land was zoned EFU. If the land that you are speaking of is within EFU zoning, you’ll have to find another way to block the hog farm.

    It sounds like a toss-up to me hogs or people? I s’pose hog are better, they won’t crowd the schools.