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|Sadler's Sense: The Unlikely Poster Child for Measure 37
Measure 37 seems to address an injustice but really creates a greater public injustice.
By Russell Sadler
Posted on Mar 4, 2005
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Measure 37 finally has a face -- a most unexpected and human face -- and it isn’t dour Dorothy English of the TV commercials. Former Oregon House Speaker Lynn Lundquist, now a lobbyist for the Oregon Business Association, was a vocal opponent of Measure 37. Like many experienced lawmakers he could not figure out where the money to pay for it would come from.
Last week Lundquist announced he has filed a claim for compensation under Measure 37. He owns about 300 acres of land zoned for farm use in Crook County. He grows mint and grain. Lundquist wants to subdivide part of the 300 acres into 33 nine-acre lots which he estimates will be worth about $4 million.
Under Measure 37 as its proponents interpret it, the county must either pay Lundquist the difference between the land’s market value as agricultural land and the $4 million it may be worth subdivided or waive the zoning and let the subdivision proceed.
“I thought this was an opportunity I probably should not forego,” Lundquist told The Oregonian.
It’s hard not to be sympathetic. It’s difficult to make a living farming 300 acres. Since the passage of Oregon’s landmark land use laws in 1973, the solution to Lundquist’s dilemma has been selling his 300 acres to some neighbor who will continue to farm it. This long-standing policy prevents the development of uses incompatible with agriculture which could jeopardize even more agricultural land.
The problem for farmers like Lundquist is the value of land used for agriculture is far less than the same land subdivided. Measure 37 represents a new attitude of a generation of Oregonians and many new arrivals who do not share the attitudes toward growth and sprawl and the often incompatible effects it has on neighboring properties that Oregonians held in the late 1960s and early 1970s. This new generation is unwilling to wait for urban growth to reach their land. They want their money now.
This raises the question that has been studiously ignored since the 1970s. Why is Lundquist’s land worth his estimate of nearly $4 million?
The reason for the higher value of subdivided land is the public investment in infrastructure that makes subdivided land salable -- publicly financed investments in streets and roads make the land accessible. The taxpayers provide schools, police and fire protection. As rural subdivisions become more dense, taxpayers provide water and sewers, parks and playgrounds. In rural eastern Oregon, the public provides electricity. The public provides or promises basic services consumers demand.
In recent years, property tax limitations reduced the amount of this public development subsidy from general property taxes. But the public costs have not gone away. They are increasingly financed with fees and systems development charges on new construction. Without this public investment, agricultural land is worth just what it can bring in from the crops it grows.
Measure 37’s proponents argue the government gets increased property taxes from the increased value of the land. That is misleading. Property taxes don’t even pay the construction and operating costs of that public investment. The public never gets a return on its money the way private investors get a return on their money. The public investment is considered a “public good” for the benefit of all. In exchange, the public claims the power to “reasonably regulate” land use.
Measure 37 radically moves the goal posts for “just compensation” to a standard much lower than the U.S. Supreme Court requires for “taking” private property, but provides no money to pay the claims.
Despite Measure 37’s approval by 60 percent of the voters, I suspect Oregonians will not tolerate cities and counties waiving zoning and permitting incompatible uses in their neighborhoods very long. That will bring up the inevitable question over how to pay compensation claims. The first choice will certainly be a tax on the difference in value between the agricultural value of Lundquist’s 300 acres and the $4 million he claims he can make subdividing it. If the public no longer has the power to “reasonably regulate” land use, it deserves a return on the investment that makes subdivided land so much more lucrative to the private owner.
That is the way former Gov. Tom McCall wanted to pay compensation claims in 1973. But Oregon’s development and real estate lobbies were obstinately opposed and the compensation issue reached a stalemate and festered -- until now.
Lawmakers should forget efforts to “fix” Measure 37. They should let the courts decide whether it is so badly written that it is “unconstitutionally vague.” Lawmakers should spend the interim between legislative session studying ways to raise the money to pay off these compensation claims if Measure 37 passes constitutional muster. The issue cannot be swept under the rug for another 30 years.
Copyright ©2005 by Russell Sadler
Russell Sadler is a journalist and lecturer at Southern Oregon University. Youmay write him c/o publisher at westbynorthwest.org Visit Sadler's Sense column's at West By Northwest.org:
Sadler's Sense: Of Myths, Money and Machines, Why We Blame the Owl
Sadler's Sense: Not Window Dressing
Sadler's Sense: From Constantine to George, God's Will and Secular Power
Sadler's Sense: Credibility or State of Our State
Sadler's Sense: Look in the Mirror, Oregon
Sadler's Sense: Why We Must Pay the Piper Now
Sadler's Sense: A Short History of Measure 30
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