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The Spokesman-Review Newspaper
Spokane, Washington  Est. May 19, 1883

Property rights measures on ballots

Richard Roesler Staff writer

MOLALLA, Ore. – Alpacas and llamas drift toward the fence as Suzie Kunzman tosses hay from the back of a six-wheeled Gator vehicle.

Her 20 acres are dotted with a few century-old Douglas firs, corrals, towering cedars and pasture. The only sounds are birds and a trickling koi pond near the house.

Soon, however, it could get a lot noisier. One of Kunzman’s neighbors wants to blast and dig an 80-acre gravel mine a couple hundred yards from her front door.

“You could almost call it wasteland,” said the neighbor, 84-year-old Charles Daugherty. His family has owned the land since 1864. Income from a gravel mine would help his family stay on the land, he said.

“You should be able to do what you want with your land, within reason,” he said.

Kunzman and dozens of her neighbors are horrified at the prospect of rock crushers, dust and rumbling dump trucks in a rural area about 30 miles southeast of Portland that now consists largely of pastures and Christmas tree farms. But while the land is zoned exclusively for farming, a 2-year-old Oregon law gives county officials little choice. They can approve the mine or pay Daugherty for the money he loses by not being able to mine. He figures it’s worth $8 million to $16 million.

Not surprisingly, the county decided to waive the restrictions. The next stop is with state officials, who are bound by the same law.

“I can’t fault him as a father; he wants the money for his kids,” Kunzman said. “But he’s also screwing his neighbors.”

Voting with “poster grandma”

Oregon, a national frontrunner in protecting public access to beaches and curbing urban sprawl, has become the vanguard of a growing Western backlash against land-use rules. Within weeks, voters in Washington and Idaho will decide measures patterned after Oregon’s. Montana voters may get a similar choice, depending on whether that state’s Supreme Court allows I-154 to go to voters, despite a lower court’s finding of “pervasive fraud” in signature-gathering there. California and Arizona also face similar measures. Washington’s been down this road before. Republican lawmakers in 1995 passed a similar measure in the Legislature, only to be overruled by voters that November.

The measures in Washington and Idaho are somewhat different, although both target land-use restrictions. In Washington, Initiative 933 would force governments to either pay landowners for the lost value of their property or to waive the restrictions. In Idaho, Proposition 2 would require payment to any complaining landowner or outright repeal of the new land-use limits within 90 days.

Backed by timber companies, developers and property-rights advocates, Oregon’s Measure 37 ads featured 91-year-old Dorothy English. In a quavering voice, she told voters about the 40 acres in suburban Portland that her husband and she bought half a century earlier. Development rules restricted her from subdividing her remaining 20 acres, selling some lots and giving some to her children.

“I’m 91 years old, my husband is dead, and I don’t know how much longer I can fight,” English told voters in one ad.

More than a million Oregonians – 61 percent of those who voted – sided with her.

“A lot of people thought, ‘This poor little old lady,’ ” said Sandy LeTourneux, a tree farmer who lives near Sheridan, Ore., about 25 miles northwest of Salem. “But they didn’t realize the impact it would have.”

English was at the head of the line after the measure passed, triumphantly filing her application immediately.

Thousands more followed. Among them: A man who wants to drill geothermal test wells, expand a pumice mine and build a 100-house subdivision within the crater of Oregon’s Newberry Volcano. Another – LeTourneux’s neighbor – has proposed putting up to 850 houses on farm- and timber land in an isolated valley. Nearly half the claims, according to No on 933 spokesman Aaron Toso, have been to subdivide farmland.

To date, Oregonians have filed nearly 3,000 such claims, demanding that zoning and other restrictions be waived. If not, they want nearly $4 billion in compensation.

“It basically throws our land-use laws in Oregon completely out the window,” said LeTourneux. “They don’t exist anymore.”

Rules and more rules

Proponents of I-933 and Idaho’s Proposition 2 pooh-pooh the extreme examples. Health and safety laws – like building codes – and federal environmental laws would still apply, they say. Contrary to predictions, they note, car dealerships and truck stops have not sprouted like mushrooms on Oregon’s flood plains.

To them, the measures are an issue of simple fairness. Decades of regulations have left farmers, foresters and other rural landowners facing an ever-tightening noose of rules, they say. With no concern for the costs, they say, government agencies are blithely mandating what people can and cannot do on their own land.

In Western Washington’s Jefferson County, third-generation dairyman Roger Short said he’s seen it all firsthand. When he bought his 500-acre dairy farm from his father 36 years ago, cows could graze on the banks of creeks. No one’s approval was needed to put up a farm building. If fallen vegetation was mucking up a stream on the property, he’d scoop it out.

Now cattle must be fenced back at least 50 feet from streams and creeks. He can’t spread manure at all during rainy winters, he said. Trees must be planted to cool streams or ditches for fish. And he’s hired numerous consultants to justify his farming practices to regulators.

“We, as a landowner, have to pay thousands of dollars to have these studies done so we can continue to do what we’ve been doing,” he said.

Three years ago, chafing at the restrictions, he closed his 300-cow dairy. He now runs 130 beef cattle on his land, grows some hay, and has a composting and topsoil business.

To catch up on farm debt, Short sought county approval this spring to sell 40 acres to a man who wanted to grow organic raspberries and blueberries. But planners, citing wetland rules, wouldn’t allow construction of a greenhouse and maintenance shop on the property. The deal evaporated.

An appraiser, he said, recently set the value of the farm at less than it was worth two decades ago. The reason, Short said: land-use restrictions.

From dairy to ranchettes

Several hours’ drive to the south, Susan Rasmussen is still mourning the loss of her family’s small dairy. To come up with $70,000 to $100,000 for a new manure and wastewater lagoon, she and her husband wanted to sell a couple acres of their 40-acre farm. Her father-in-law had done it 30 years ago, giving an acre to a newly married daughter. And neighbors had recently broken off five-acre parcels to sell.

No way, county officials said. Any new lot would have to be at least 20 acres. That’s half the farm.

Without the money for the lagoon, the dairy couldn’t keep running. The farm – which the couple was counting on for retirement income – was foreclosed on by creditors.

“It just devastated us,” she said. “We raised our children there.”

She and her husband now live in a mobile home on his mother’s property. “Why is a farmer’s property any less dear to him than a lot in town?” she said. “It’s being fenced off, restricted, but yet the people in town can still mow and weed-and-feed right up to a stream.”

The dairy farm is now home to rural mansions and a horse arena. None of it, Rasmussen said, is being farmed.

“A scalpel, not a meat ax”

Initiatives like 933 are a last resort, said John Stuhlmiller, a spokesman for the Washington Farm Bureau, which filed it. Lawmakers, environmentalists and Gov. Chris Gregoire, he said, haven’t been willing to ease the restrictions significantly.

“Even for existing agriculture, you can’t expand, can’t till more frequently, can’t apply any more pesticides,” he said. “It’s museum agriculture. It may look cute to have my liederhosen on here, but we want to farm and feed the world. You’ve got to be able to move on your land and make a profit on that food and fiber.”

Todd Myers, director of the Washington Policy Center’s environmental arm, says that the rationale for pay-or-waive is simple: whoever benefits should pay for the impact of regulations. If the public, for example, benefits from cleaner streams or flourishing salmon stocks, the public should pay the cost.

“In the past, there was little impediment to passing these rules, simply because they (government agencies) didn’t have to assess or bear the costs,” Myers said.

So far, Washington voters seem somewhat sympathetic. A September poll by independent pollster Stuart Elway found that 47 percent of likely voters favored the measure, versus 31 percent against it. Support was highest among the wealthy, Republicans, and Eastern Washingtonians.

Unlike Oregon’s Measure 37 – which resets the regulatory clock to whenever a landowner bought his property – proponents of Washington’s measure say it only goes back to 1996. That’s when much of the local regulation under 1990’s controversial Growth Management Act kicked in. Idaho’s Proposition 2 would apply only to future regulation.

“This is a surgeon’s scalpel, not a meat ax,” said Stuhlmiller. Under Washington’s Initiative 933, he said, the key question is whether a proposed use was lawful in 1995.

“If not, you can’t do it,” he said.

“Measure 37 on steroids”

Some critics dispute that, saying that the initiative’s wording is unclear. They maintain that Washington’s law could be used to circumvent even decades-old land-use laws. In many ways, they say, Washington’s measure is even more sweeping than Oregon’s.

“The truth is that I-933 is not a clone of (Measure) 37 so much as it’s a steroid-pumped version of Measure 37,” Eric de Place wrote in a May analysis.

To date, Oregon has not paid a single claim, choosing instead to waive the regulation for individual landowners. Idaho, however, wouldn’t have that option.

Under Proposition 2, officials would have to pay up or repeal the regulation entirely.

“We don’t have the kind of money that people are talking about this costing. It will cost a ton,” said Jerry Mason, a Coeur d’Alene attorney who represents Idaho cities.

In Spokane County, planner Steve Davenport worries about I-933’s effect on the county’s critical areas ordinance, designed to protect environmentally sensitive wetlands, habitat, aquifers and flood zones. He’s also worried about the county’s hotly contested 1999 ban on new large billboards. If I-933 passes, he predicts a surge in applications for “gi-normous billboards.” He also predicts a surge in housing subdivision applications from people who lost the right to subdivide in the wake of the Growth Management Act.

“If this thing passes, we’re not going to be doing any planning,” he said. “The thing that scares me it sounds like mom and apple pie. I’d probably vote for it if I didn’t know.”

“Voters are going to the polls and have no clue that it is a checkbook-opener,” Spokane Assistant City Attorney Milt Rowland said. “This is a gift from the taxpayers to the developers, that’s all it is.”

The city councils of Spokane and Spokane Valley will consider denouncing the initiative this week.

Some farmers worry about farmland sprouting subdivisions if such measures pass. Palouse farmer Aaron Flansburg felt so strongly about it that he carved a huge “NO 933” in a barley field, using a combine to sculpt letters 300 feet long.

Spokane developer Don Barbieri pointed to the proposed Kendall Yards development and the University District as examples of what happens when solid planning practices are in place. A well-planned development, he said, includes constructive criticism and is examined from all sides.

“If we don’t do that, we’re going to end up with a hodge-podge,” Barbieri said. “It’s not going to protect the private property owner.”

“Nice flowery things”

One of the strangest aspects of the debate over I-933 is the way that proponents decry government seizures of private property under eminent domain laws. Last year, the U.S. Supreme Court angered many property advocates and owners by upholding a Connecticut town’s seizure of private residences to make room for a pharmaceutical company’s plant. During the outcry that followed, lawmakers in several states passed laws designed to limit such seizures.

That public response was not lost on advocates of “takings” measures like Oregon’s.

“The national property rights movement has been galvanized in recent years by Measure 37’s passage, as well as widespread popular disenchantment with the abuse of eminent domain” in the New London, Conn. case, libertarian analyst Leonard Gilroy wrote in April. “Public recognition of the need to protect the constitutional rights of private property owners has never been higher.”

So it’s perhaps not surprising that the dominant feature of the www.yeson933.com Web site is a lengthy cartoon depicting mafia-type thugs using eminent domain to seize an immigrant’s ice cream shop, an African-American church, and a family’s home. And the language of 933 includes a criticism of eminent domain seizures.

The strange part: I-933 would have no effect at all on eminent domain laws.

Stuhlmiller concedes that, but said it’s common to include such language in legislation.

“You put in things that are nice flowery things that have no legal effect,” he said.

So why mention eminent domain at all?

“It is a legitimate statement of concern,” he said. As for the eminent domain cartoon, it was donated. “You say ‘thank you’ for all kind of help that you get,” he said. “It does not address specifically 933, except at the end when it says ‘support 933.’”

In Idaho, Prop. 2 includes eminent domain protections that are already part of state law. The language is merely a “distraction,” critics say, from the real point of the measure: the pay-or-waive land-use changes.

850 new neighbors

Drive through the tiny town of Dundee, Ore., about 10 miles off Interstate 5 between Portland and McMinnville, and it’s hard to miss a decaying old house across the main drag from a concrete statuary dealer. The house is painted purple.

On it are a couple of large banners.

“Thou shalt not steal,” it reads. “God bless Measure 37.”

The empty home belongs to 71-year-old Howard Meredith. He thinks it’s a great spot for a drive-through coffee shop or eatery.

The city of Dundee is apparently not so enamored of the idea. So Dundee filed a Measure 37 claim. Let him put in a drive-through, he said, or pay the $250,000 or so he figures it would be worth to him.

“The way they were doing land-use planning in Oregon, people were losing too many rights,” the retired asphalt foreman said. “You’d buy a piece of property and then they’d zone you off of it.”

An hour’s drive away, the sun is setting on Sandy and Jim LeTourneux’s tree farm, on rolling hills a mile past where paved road ends. Jim’s planted more than 100,000 of the trees himself, and harvests part of the 500 acres every year. The couple hates the thought of as many as 850 houses springing up in the sparsely populated valley. They’d have a subdivision on three sides of their property. They worry about fire danger, about dogs chasing wildlife, about trespassing. They worry that the new residents would complain about chemicals to kill blackberries or fertilize saplings.

It remains unclear how their neighbor will build on the steep hillsides, or how he’ll develop water and sewer. But he’s apparently serious – large swaths of the property have been clear cut, rich brown soil revealed in the new haul roads and skid paths.

“We are stewards of the land,” Sandy LeTourneux said, as her diesel four-by-four lurched slowly along a tree-farm road. “Dividing up land into little home sites is not the highest and best use.”