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Rep. Richardson's Update- October 12, 2007

Measure 49—The Dark Politics of Public Deception

I was taught as a boy to play fair. We all were. Sometimes when we grow up, we bend the rules as far as possible to get what we want, even at the price of fairness, honesty and integrity. Certainly such temptation exists in politics and we have only to look at Measure 49 to prove it.
Ballot Measure 49 has a Ballot Title that states: “MODIFIES MEASURE 37; CLARIFIES RIGHT TO BUILD HOMES; LIMITS LARGE DEVELOPMENTS; PROTECTS FARMS, FORESTS, GROUNDWATER. Such Ballot Titles are generally required to be written so they are neutral and accurate. The truth about Measure 49 has now been publicly exposed, and, regardless of how you feel about Measure 37, the story of the manipulation and abuse of power used to place Measure 49 on the November ballot is an embarrassment to Oregon and a blow to citizen confidence in our State government. Consider the following:
Willamette Week’s October 11, 2007 article, “Truth And Consequences – Nothing Was Finer for Measure 49ers Than Their Unusual Path to the Ballot,” by Pulitzer Prize winning reporter Nigel Jaquiss courageously sets forth the intrigue and collusion used to stack the deck against proponents of Measure 37. Private emails produced in a recent law suit have disclosed Oregon State officials and 1000 Friends of Oregon representatives carefully crafting the language of Measure 49’s Ballot Title and Explanation, then passed House Bill 2640 which circumvented all laws that ensure Oregon voters get fair and balanced Ballot Titles and Explanations to use when deciding how they should vote on a Referral from the Legislature.
It is now revealed that Oregon’s AFL-CIO Union President Tim Nesbitt (who Governor Kulongoski made a “Deputy Chief of Staff” shortly after the union helped ensure the Governor’s re-election in 2006), used the “Governor’s Opportunity PAC” money to conduct polls, hire consultants and determine what wording would encourage voters to vote for a ballot measure that would rewrite Measure 37 and effectively restore Oregon’s pre-Measure 37 land use laws. The results became Measure 49 by circumventing all protections voters usually have to ensure fairness and neutrality.
The Willamette Week’s article discloses how Nesbitt performed his subterfuge in collaboration with Bob Stacey, Director of 1000 Friends of Oregon, who “wanted to make sure any prospective ballot title would reflect proponents’ views, rather than neutrality.” One email Stacey wrote to Nesbitt states:
“This is exactly what I’ve hoped would happen: you pick the best people to draft the title for the measure the legislature refers out and don’t leave it to chance or Legislative Counsel”
From the article it appears Nesbitt and Stacy organized a team of pollsters, consultants and lawyers who conducted polls and focus groups to determine the precise language needed to obtain a “YES” vote from confused voters who would think they were voting to “fix” Measure 37, when, in essence, they would be removing its key provisions and retaining the very land use problems Measure 37 was intended to correct.
Jaquiss’ article goes on to state:
“The group tested ballot language in March and April to determine which words would have the greatest chance of overturning Measure 37. Nesbitt says the focus groups and polling provided information about exactly how voters felt about Measure 37 and how they would like to see it fixed. “Proponents also discussed other strategies such as deliberately making the ballot summary so long that county elections officers would leave it out of the Voters’ Pamphlet, leaving voters with only the carefully chosen ballot title to consider. “I don’t see huge advantages to the words added to the summary to expand it,” Measure 49 campaign strategist Liz Kaufman wrote in a June 6 email to Nesbitt and Stacey. “I realize that was done in order to try to make it so long that counties won’t print it, but it doesn’t seem to add much value through it’s [sic] actual meaning.” (Proponents ultimately shaved the summary down to 125 words).
“They also debated how neutral the measure’s explanatory statement should be. In a June 6 email to Land Use Conservation and Development Commission director Lane Shetterly, Rep. Greg Macpherson (D-Lake Oswego) and Sen. Floyd Prozanski (D-Eugene), Nesbitt wrote, “We should decide if you want to bypass the process for an Explanatory Statement Committee and draft our own Explanatory Statement as well. I would argue against doing anything differently with the Explanatory Statement process, since that is explicitly provided for both initiatives and referrals and allows for input from both proponents and opponents.”
“Ultimately, legislators ignored Nesbitt’s advice. On June 25, the same day they referred Measure 49 to voters, lawmakers passed House Bill 2640 sending a pre-selected ballot title, summary and fiscal impact statement directly to the voters. HB 2640 passed the Democratically controlled Legislature on a party line vote.”
So what is the truth about Measure 49?
Measure 49 is sold as creating an “express lane” for approving 3 homes and in other circumstances up to 10 homes for those landowners who have been deprived of land use rights and values by government land use laws. In reality, complying with Measure 49 requirements are so burdensome, time-consuming and expensive that few landowners will ever be able to qualify it the measure’s provisions.
For instance, the three-home “express lane” approval process applies only to certain locations, such as land outside Urban Growth Boundaries. A maximum of three dwellings could qualify for any land designated as “high-value farm or high-value forest land.” On the surface such a designation may sound reasonable, but the definitions of Measure 49 Article 2 sub-paragraph (10) expand those terms to include most of the Rogue Valley, Umpqua Valley and Willamette Valley—approximately 85% of Oregon’s population.
Even those Oregon property owners who might be able to qualify for three homes (note the three-home-approval includes any residences already existing on the property), will rarely qualify for actual approval of their claims. Measure 49 requires the landowner to overcome 6 important hurdles before qualifying for approval of the claim. One of the hurdles is almost insurmountable.
Section 6 states: “…to qualify for a home site approval under this section the claimant must establish that: (d) One or more land regulations prohibit establishing the lot, parcel or dwelling.” (Underlining added.)
Note, the actual approval hinges on whether or not the landowner was “prevented” and not merely “restricted” from building on the property by land use laws enacted since the property was obtained. Measure 37 used the word “restricted.” Measure 49 uses the word “prevented.” What a difference changing a single word can make. Thus, if a farmer lost the right to build a farm house because a subsequently imposed rule requires his farm must produce $80,000, he would not qualify under Measure 49. The $80,000 rule is merely a “restriction” on building a home, but does not “prohibit” building the home. Oregon land use laws have many restrictions and few prohibitions.
For those landowners who live in the Rogue Valley, Willamette Valley or other Oregon population centers, different rule apply. The bold print of Measure 49 would grant permission to build up to 10 homes. The fine print in Measure 49 makes qualifying almost impossible for Oregon landowners, for the following reasons:
First, such a landowner must have already filed a Measure 37 claim or filing a Measure 49 claim is prohibited.
Second, the landowner must obtain and pay for two formal appraisals—one based on the theoretical value of the land the year before the restriction was imposed and one based on the theoretical value of the land a year following the land use restriction.
Third, the landowner must obtain and pay for two such appraisals for every land use restriction that could prevent the building of homes on the land—often there are multiple restrictions on a single piece of property.
Fourth, the landowner must pay for the government’s costs to process the claim, including, but not limited to its review of the landowner’s multiple appraisals, the appraisals submitted by opponents of the landowner’s claim, and the government’s own appraisals.
Fifth, computations are to be based on the interest rates of a specified form of Treasury Bills, notwithstanding the fact that such T. Bill have not been issued since 2001.
Sixth, the landowner must be willing to fight and pay the litigation expenses to defend his or her claim against any person or organization that wants to challenge the claim in court. Measure 37 enable the landowner to recover its litigation expenses if the landowner prevailed. Measure 49 changes the law and denies the landowner the right to recover such costs.
Seventh, notwithstanding use of the term “Express Lane,” the government has no firm time limits on how long it can take to process the landowners’ claims. Since most folks who have owned property long enough to qualify for a Measure 49 claim are elderly, just dragging out the process for years can prevent a senior landowner from qualifying under Measure 49.
Finally, Measure 49 excludes all claims if there was any possible use for the property that was worth more than “residential use.” Section 7 sub-paragraph (8) states: “Relief may not be granted under this section if the highest and best use of the property was not residential use at the time the land use regulation was enacted.” (Emphasis added.)
Essentially, subparagraph (8) states that if there was some possible use for a landowner’s acreage that would have made that landowner's property worth more that it was worth as a residence at the time land use law changes deprived the landowner from being able to build a dwelling, then that landowner will have no Measure 37 rights whatsoever.
I called a former County Attorney who is an expert in land use issues. I asked the following question:
“If a rural landowner needed to know what options were available to meet the definition of ‘highest and best non-residential use’ for his rural acreage, what uses would be on the list?”
Off the top of his head he gave me the following:
• Golf course
• Cemetery
• Aggregate mine (sand and gravel)
• Rural commercial gas station, convenience store, etc.
• Wine Tasting Room (under certain circumstances)
• School
• Church (If more than 3 miles beyond UGB)
• Recreational Park (fishing ponds, hunting, mountain biking)
• Ecological Park
• Animal Reserve
• Dog kennel
• Shooting Range
• Privately Owned Campground (under certain circumstances)
• Resort
• Landing Strip for private aircraft
• Horse Stables
• Domestic Plant Nursery
Measure 49 is a bill being sold as a solution, while delivering nothing but more expense, delay and broken promises to Oregon citizens.
In conclusion, the collusion, manipulation and deception inherent in drafting Ballot Measure 49 is an abuse of governmental power. It is one thing to fight against Measure 37 if you are one of the 39% who voted against it, but it is an entirely different matter to manipulate the system in an overt attempt to mislead Oregon voters with a biased, one-sided distortion of the truth in order to accomplish your political agenda.
Measure 49 violates the fundamental democratic principle of fairness. Every citizen who values honesty in government should vote against Measure 49. Regardless of how they might feel about Measure 37, Voting NO on Measure 49 is a statement against dirty politics. Defeating Measure 49 would force those who have attempted to abuse their political power to go back to the Legislature and craft a Measure 37 compromise using the political system as it was designed to operate. As one liberal blogger put it, “If they can't win the vote with the truth perhaps they should not win.”
One final thought. For those who would like to see a comparison of Measure 49 and Measure 37, see Portland attorney James D. Zupancic’s click here for a detailed chart.


Dennis Richardson
State Representative

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