New law disturbs face of Measure 37
While landowners, attorneys and planners untangle the development rules redefined by voter approval of Measure 49 in November, the property rights "poster girl" who was at the center of Oregon's land-use battle three years ago is no further along than when she started.
Dorothy English, 95, hasn't developed her land despite winning initially at the ballot box and then in court. Now voters' latest move on land use and property rights has clouded the picture.
"Nothing, not a thing," she said recently. "I haven't got anything, period. And I'm furious."
She referred questions to her grandson, Doug Sellers, the family spokesman. Sellers said his grandmother is in poor health, and it's unclear whether she ever will be able to develop her property off Northwest Skyline Boulevard outside Portland.
The family is waiting to see what development options might be available under Measure 49, he said.
In January, the state Department of Land Conservation and Development will begin sending notices to people who filed development claims under Measure 37, the law that voters approved in 2004 and that Measure 49 replaced. Most claimants will be allowed to build one to three homes or as many as 10 under tightly defined circumstances.
"It depends on how it comes out and what it says," Sellers said of the pending state notice. "If it says come down tomorrow and get a building permit, that might make it doable."
But Sellers said he has little confidence that the state's letter will enable his grandmother to develop her property as she hoped.
In 2004, property rights activists portrayed English as a sympathetic victim of unfair land-use rules. The widow and longtime property owner wanted to split her 20 acres into eight homesites and divide them among her family.
But that was prohibited because Multnomah County changed the zoning of the property after she and her husband bought it in 1953. English maintained that the zoning changes devalued her property and restricted its use.
Her family doesn't think she was taken advantage of by the campaign, Sellers said. "Not at all. Certainly, they put her in radio ads; definitely, they used her name, because she was a prime example of what many individuals were experiencing."
Measure 37 gave property owners the right to develop their land in a way that was permitted when they bought it. That touched off a flood of claims from property owners in similar situations as English.
Oregonians filed about 7,500 claims asking compensation for diminished property values, which local governments couldn't afford to pay, or the right to build, in some cases, subdivisions and commercial and industrial ventures.
The prospect of extensive development, much of it on farm or forestland, produced a backlash that resulted in Measure 49, which voters approved in the Nov. 6 election.
One of the campaign's key arguments was that voters had been fooled into thinking Measure 37 would benefit elderly folks such as English and that voters hadn't contemplated such large development proposals.
English was among those who filed a claim under Measure 37. In December 2006, she won a compensation claim for $1.15 million, and Multnomah County agreed to let her develop eight lots in lieu of paying compensation.
But the county insisted she had to comply with modern standards regarding hillside development, grading and erosion controls, road building, emergency vehicle access and other issues. English's attorney, Joe Willis, argued that such procedural rules didn't exist when English bought the property and shouldn't be applied now. He maintained the rules would cause delays, cost English money and expose her to appeals from neighbors.
A judge sided with English, prompting a continuing legal fight. Meanwhile, English also won a ruling that Multnomah County must pay her about $440,000 in attorney fees. Both cases are on appeal.
In the aftermath of Measure 49's passage in November, some Measure 37 claimants are rushing to develop their property. However, most are awaiting clarification from the state on how the new measure affects their development plans.
The state letter will ask claimants to choose either an express path for building one to three homesites or a more difficult conditional route of building four to 10 homes if a complicated appraisal process shows land-use rules caused a sufficient property value loss.
A third option, involving a showing of vested rights, allows property owners to build beyond the scope of what's allowed under Measure 49 if they have spent a significant amount of money and done enough work on the project, proceeded in good faith and met other standards.
In English's case, building and selling a few homes under Measure 49's express path might not be enough to cover the expenses from fighting the case, said Sellers, her grandson.
The property was unzoned when his grandmother and her husband, the late Nykee English, bought the property, he said.
"In 1953, she could have built 100 homes or a high-rise hotel if she wanted. All she wanted to do was divide it into eight parcels. We're not talking greed; we're not talking mass density."