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.