Measure 37 & Measure 49

Activist Malpractice

Published: Dec 2, 2007

Measure 49 wasn’t the solution

The Register-Guard’s Nov. 16 editorial, “Deliver on Measure 49,” delivers one more reason Measure 37 should have been repealed rather than watered down as Measure 49.

Following in the footsteps of Measure 37, Measure 49’s generous concessions to opportunism and greed guarantee an increase in sprawl on farm and forest land. Though officials should be focused on measures to reduce our contribution to global crises, the editorial insists that they fast track Measure 49 instead.

Failure to do so, we’re told, will undermine the state’s efforts to overhaul the land use system and may bring back the bogeyman with another property rights initiative. Best then to go easy on Measure 37 vested rights (i.e., scams perpetrated statewide) and to allow some subdivisions or commercial and industrial development.

With those gifts in mind, it’s not surprising that the editorial encourages a revival of the governor’s “Big Look” task force. In its first look, this development-biased committee found that Oregon’s land use program contains sprawl and protects farms and forests. Common observation proves otherwise.

Measure 49’s crafters gave ground that should and could have been held to conserve our resource base and thereby serve as an antidote to global warming, oil depletion, water shortages and pollution.

But there’s lots of money to be made growing houses in the countryside. Makes one wonder if the author of this market booster — or someone close to him — has more than a casual interest in the real estate industry. Mere speculation, of course, but it’s popular these days.

Robert Emmons

Fall Creek

letter to the editor, Sunday, October 28, 2007

Measure 49 sets bad precedent

Measure 49 poses a false choice for voters concerned about rampant overdevelopment.

While I agree with most of the pro-49 rhetoric to protect farmland and tree farms, the details are less impressive. Measure 49 would block some of the worst parts of Measure 37, but it would also ratify other parts of the measure, which would set a horrible precedent for future environmental rollbacks.

The “Yes On 49” campaign is spending more energy on Measure 49 than it exerted to stop Measure 37. The lead group for 49, 1000 Friends of Oregon, promotes timber industry representatives on its “Envision Oregon” Web site — Oregon State University Forestry Dean Hal Salwasser and the Oregon Forest Resources Institute.

Every strip mall, freeway, subdivision, paper mill, and toxic dump currently littering the countryside is in compliance with existing Oregon land use laws. Some details are posted at

In the 1970s, environmentalists pushed for stronger protection to protect air and water. Now, some groups negotiate away these achievements in a desire to seem reasonable, even though we have more cancer, fewer old growth forests, depleted fisheries, crumbling bridges, melting glaciers and no plans to address the end of cheap oil.

The 49 vs. 37 debate distracts from the need to shift civilization toward truly sustainable behaviors that will outlast the petroleum era. Sadly, many politicians and the larger environmental groups see these warnings as a reason to compromise away public health and sane policies, and do not work for long-term solutions.

Mark Robinowitz


Measure 49 does little to fix Measure 37

By Robert Emmons and Jim Just

Published: Tuesday, October 16, 2007

“A vote for Measure 49 is pragmatic, not principled,” claims Bob Stacey, executive director of 1000 Friends of Oregon. Offered as the only responsible option, it’s a strategy to leverage fear of Measure 37’s potential impacts for support of a lesser evil.

To be sure, landowners all over the state have been shaken by the prospect of huge subdivisions, gravel pits, strip malls and billboards, all possible under Measure 37, growing on farm and forest land next door. Measure 49 disallows such claims.

As the drums roll for Measure 49, however, prudent voters, those concerned about the health and beauty of Oregon, must consider how much principle — how much of the state’s integrity, and how much of their own — they are willing to sacrifice to serve a pragmatism fueled by fear.

Eschewing repeal of Measure 37, the Democratic majority that created Measure 49 bought into the premise of Oregonians in Action and Republicans that government takes away people’s rights rather than creating and protecting them. Ignoring constitutional law, statutes, scripture, common law and common sense, Measure 49 cements into place the self-serving, short-sighted precept of rights without responsibilities.

Measure 49 asks voters to approve one of the most radical and extreme property rights laws in the country. It does so by clearing up the uncertainties in Measure 37 that work in its opponents’ favor: transferability and time.

To date, two lower courts have ruled that development rights are not transferable to an unrelated owner. A letter of advice from the attorney general points out that uses developed pursuant to Measure 37 do not fall within the statutory definition of nonconforming uses, raising the question of whether any such use can ever “vest” and so be transferred to others.

And on Sept. 26 a Multnomah County circuit judge ruled that subdivision is not a use; that undeveloped lots are not transferable; and, since undeveloped lots cannot be transferred, there’s no loss of value for claims that ask only for parcels without any concrete development plans.

Resolving these legal issues could take years. In the interim, uncertainty acts as a deterrent to on-the-ground development, as property owners are loath to put serious money at risk.

The basic tenets of Measure 49 include:

Adopting the main premise of Measure 37 that land use regulations can “unfairly burden” property owners, making it necessary to provide “just compensation” or to waive the regulation.

Up to three houses unconditionally to claimants who owned property, including high value farmlands, forest lands and groundwater-restricted lands, prior to the enactment of a land use regulation. There are currently 7,500 claims covering more than 750,000 acres.

From four to 10 houses to claimants who can prove loss of value according to a nationally accredited yellow book appraisal. “Any” loss of value can be claimed.

A $5,000 credit for appraisal costs and other costs associated with filing and pursuing a claim to be considered loss of value.

Transferability to any owner and the right to develop up to 10 years after transfer.

Allowing claims into the future on regulations that limit residential uses of property or farm and forest practices. Measure 37 requires that after November 2006, claims for compensation would not be considered unless some action had been applied for and denied by the decision-making body.

About the only thing Measure 49 does not offer is any real assurance that more won’t be built under its rewrite than under Measure 37. Moreover, like Measure 37, Measure 49 has no provisions that address the impacts to neighbors. Talk of fixing the “fix” later is ludicrous. Measure 49 would short-circuit any initiative for comprehensive resource protection.

Playing into the hands of Measure 37 proponents, the campaign for Measure 49 is driven by a false dichotomy of pragmatism and principle. What could be more pragmatic than saying no to the growth machine — to continued sprawl and natural resource depletion — and demanding principled leadership that asks the essential questions about Measure 49? Does it leave us in a better or worse position to deal with global warming, peak oil, water shortages and pollution? With limited time, resources and energy, should we spend even more on a campaign to support this reprehensible giveaway, after having expended millions on an incompetent campaign to stop Measure 37?

Arguing about whether we’re better off with Measure 49 or 37 seems as absurd and as much a waste of energy and precious time as arguing over a shuffleboard game on the decks of the Titanic. We ought to be focusing on the icebergs ahead and on getting the lifeboats ready.

Robert Emmons is president of LandWatch Lane County. Jim Just is executive director of the Goal One Coalition.

Measure 49 is a brilliant psychological campaign to ensure that most of Measure 37 gets enacted while splitting the environmental movement. It is a great example of the difference between Republican politicians and Democratic politicians -- the R's don't care about the environment, while the D's pretend to care but craft initiatives that undermine ecological efforts while pretending to help. It is dichotomous thinking -- either you're with the Measure 49 campaign or you support Measure 37, when in reality the world is not split into yes/no fake debates.


Vote Yes? Vote No? none of the above!

Some Measure 37 opponents are urging citizens to abstain from the son-of-Measure 37 (also known as Measure 49), since voting FOR Measure 49 solidifies much of Measure 37 into law, and voting AGAINST Measure 49 will be seen by the media as a vote for Measure 37. Heads they win, tails we lose.

Panic and groupthink are not the ideal ways to make environmental policies. We can do better than this false dichotomy (37 or 49) if we work together for a positive vision.

An excellent book that details the decline of the environmental movement through these sorts of compromises is:

"Losing Ground: American Environmentalism at the Close of the Twentieth Century"
by Mark Dowie (former editor of Mother Jones)

a review is at

from a post to the Eugene Permaculture Guild list - September 25, 2007

The unfortunate reality is that, as usual, the forces of development überälles have outmaneuvered those of us who would preserve what little remains of the world as it ought to be. It's a Catch-22, and not by accident. The politicians, wittingly and otherwise, have given us a pair of false choices. By passing Measure 49, we will -- at least temporarily -- avoid some of the worst excesses of Measure 37 while also codifying some very egregious additions to the law. But failing to pass it will be seen as a re-affirmation of M37, both by the politicians and the courts.

Damned if we do, damned if we don't. And people wonder why such a relatively few eligible voters actually do.

- brad
It was incredibly short-sighted and incompetent leadership that has brought us to this dilemma. Arguing about whether we’re better off under Measure 49 or Measure 37 seems as silly and as much of a waste of energy as arguing over a shuffleboard game on the decks of the Titanic. We ought to be focusing on the icebergs ahead, and on getting the lifeboats ready.
The folks responsible for the rewrite lost their nerve, betrayed our core principles, and negotiated surrender with themselves (not with the M37 proponents, who weren’t and never will be interested in any “compromise” at all).
Does it leave us in a better or a worse position to begin the battle against global warming? Is the campaign to pass Measure 49 the right place to expend limited and precious time, resources and energy? Or is the campaign an unfortunate and wasteful distraction from what is by far the most consequential issue of our time - climate change? Whether the measure passes or not, we’ll wake up the day after the election with the same task urgently awaiting us: stop global warming.

from a reader who moved out of Oregon in June 2007:

Hey Mark!

A bit out of the loop on Oregon politics, but definitely wish you well. The 37-49 switcharoo is a typical strategy for hundreds (thousands?) of years. The dominant predators will moot something so terrible that it mobilizes the public, who are clumsy enough to let huge gains be made in the initial deployment. Then there is partial roll-back and the outcome is significantly worse but now acceptable by a shrugging, grudging, worn-out public, which assumes that's the way things are now. Darn. You are absolutely right to attack that. But it's a fortuitous rarity that such an empowered elite is deflected from its poisonous goals at this stage of the process. Definitely good luck.

One encouraging aspect is that we are so near to the Great Change that holding out and braking the steamroller wherever possible may actually preserve farmland and forest for the long term. In the past, saving it today meant losing it later. But there's at least some hope that the horror machine will collapse before the topsoil and groundwater and vegetation are irrecoverably destroyed.

“Why I won't support the Measure 37 rewrite” by Jim Just

With the pressure on everybody in the environmental community to rally 'round the effort to pass the referral of HB 3540 (now Measure 49), I've been repeatedly attacked for my continued opposition to the Measure 37 rewrite and asked to explain how I can be so stubborn and unrealistic. The explanation requires an excursion into the historical and intellectual context of land use in Oregon - so please be patient with the length of this post.

Land use planning arose in Oregon as a tool to protect farm land and, to a lesser extent, forest land from sprawl. The program assumed and was premised on endless growth. The bugbear was California, where everyone could watch as relentless sprawl consumed farmland and the countryside at a fearsome rate.

The planning program was not an environmental program, and god forbid we should try to regulate farm practices. Recall the stink about and the resistance to the pesticide reporting program. We environments latched on to the planning program as a tool - albeit an ill-designed one - to get at the protection of ecosystems, especially on privately-owned lands which are outside the focus of the mainstream conservation organizations. It turns out keeping housing developments from consuming rural lands is a pretty good proxy for keeping the ecosystems found on such lands more or less intact.

Measure 37 put an end to the planning program. M37 is predicated on the notion that there is no legitimate public interest in private lands and on the idea that the individual can and does exist apart from the community and individual rights were somehow created and continue to exist independently of the community in which we find ourselves. Of course, these notions are absurd, both historically and logically.

The rewrite starts by accepting the premise of M37, that there is no legitimate public interest in private lands. It then goes about trying to mitigate the damage to the lands the old planning program was most concerned with - the most valuable farm and forest lands, especially those surrounding the urban areas in the Willamette Valley - by limiting the amount of new development that can take place there. The price for this? Cementing in law an ideology which disables government from being able to act to protect or promote the public welfare.

The forces behind the rewrite panicked at the thought of 7,000+ M37 claims being built out, swamping all that they had worked for over the last 35 years. I believe this panic is unwarranted for a number of reasons, not the least of which are economic. The "fix" would allow somewhere in the neighborhood of 21,000 new dwellings in rural areas statewide - Measure 37 as it stands would presumably allow even more. Total housing starts in Oregon have averaged around 25,000 over the last few years - and by far the greater part of these were in urban areas. The market for rural houses would be flooded, and it would take years to work off the excess, given good market conditions. But the real estate bubble is popping and markets collapsing, all over the country, while at the same time interest rates are rising and credit rules tightening. And then there are the legal uncertainties with M37 as it currently exists -especially the questions concerning transferability of claims and of the right to use any development that actually gets built. With all these problems, most of these houses would never get built.

The rewrite would clear up M37's uncertainties, ensure the transferability of claims and of subsequent development, and would likely result in more development actually being built out. And for this, we sell out our most deeply-held principles and values.

There were other strategies that we might have employed to fight off the worst effects of Measure 37. Taking advantage of the "public health and safety" exemption, we could have focused on the most important geographical areas - for example, arguing that the food produced in the Hood River Valley is simply too important for the health and safety of Oregonians to be sacrificed. We could have worked to broaden the scope of "public health and safety" to encompass ecosystem protection. We could work towards declaring that all land use regulations are health and safety regulations, essential for maintaining the health and safety of the planet and all those who live on it, including humans. The rewrite, which would narrow the scope of the “public health and safety” exemption, would make such a strategy more difficult or impossible to carry out.

The reality is the cheap and abundant energy that fueled sprawl over the last 50 years is gone. The patterns of the past cannot and will not continue long into the future, M37 or no. The sugar plums of unearned profits that dance in the heads of M37 supporters are the unearned fruits of endless growth, growth that will of necessity come to an end. The challenge we will face in the future is not accommodating unending growth, but figuring out how to live in a world that is energy- and emissions-constrained and within ecosystems that are changing in unpredictable and uncomfortable ways due to the furies of global warming that we have unleashed.

The folks responsible for the rewrite lost their nerve, betrayed our core principles, and negotiated surrender with themselves (not with the M37 proponents, who weren't and never will be interested in any "compromise" at all). They insist that surrender is the only realistic option. But the stakes are too high to give up. The reality is that the future of our civilization is on the line. We can only prevail if we remain true to our belief in the value of healthy communities and steadfast in our resolve to work to make our communities better. Voter approval of the rewrite would not only likely result in more on-the-ground damage - it would leave us in a far worse position from which to carry on the struggle for a decent future.