Scenic Area fate hinges upon key Measure 37 battle

By RAELYNN RICARTE

News staff writer

November 18, 2006

Hood River County is at the heart of a Measure 37 legal challenge involving property within the Columbia River Gorge Scenic Area.

On Dec. 7, the Oregon Court of Appeals will hear oral arguments over two local claims. At issue is whether the state law can trump regulations created by a federal mandate in 1986.

The case centers on a request by Paul Mansur to divide his .59-acre parcel in the Scenic Area along Lois Drive into two buildable lots. It also involves a bid by landowner Stephen Struck to divide his 6.75 acres on Morton Road, also in the Scenic Area, into three residential lots.

In the summer of 2005, a visiting judge in Hood River County Circuit Court ruled in favor of the Columbia River Gorge Commission, which opposed those claims. The bi-state entity’s attorney, Jeff Litwak, told Judge John Kelly the commission had adopted a land-use management plan for the Gorge that was in accordance with federal law to protect resources.

Kelly upheld that argument, saying the will of state voters could not force the removal of a Congressional Act. He also said the interstate compact set up to enact the federal law would be violated by Measure 37. Since Oregon and Washington have agreed to administer uniform standards, Kelly felt that lifting regulations from one state would not be legal.

However, the lower court judge also made it clear that the case was only beginning its journey through the legal system.

“I hope everyone understands that it not the function of this court to have the final answer on this issue. The purpose of this hearing is really to create a record for a hearing by a higher court,” he said.

Oregonians in Action, the private property rights group that authored Measure 37, disagreed with Kelly’s decision. OIA contends the Scenic Area does not qualify for the allowable exception to Measure 37. The law prohibits a landowner from seeking compensation or restoration of development rights for use restrictions imposed by a required federal law, such as the Endangered Species Act.

Ross Day, director of OIA’s legal affairs, said the Scenic Area is a “different animal” from most federal laws. He said Oregon and Washington fund and provide oversight for the Columbia River Gorge Commission. In addition, he said the bi-state entity has adopted restrictions that far exceed the guidelines that Congress required for resource protection. Therefore, Day said the Scenic Area is not exempt from Measure 37 claims.

Measure 37 was approved by a supermajority of voters statewide in 2004. The law requires that government agencies compensate landowners when a regulation devalues property by taking away its use. In lieu of making that payment, the agency can lift the “offending” restriction.

In addition to the Scenic Area case, several other court challenges are pending that will, ultimately, decide how Measure 37 is applied.

One of these legal questions asks for a definition of continuous ownership regarding a Measure 37 property. Under the law, a landowner can only ask for the allowable use at the time he/she purchased or inherited the parcel. If the individual later incorporates his/her holdings for a tax break, or turns them over even briefly to another family member, agencies are ruling that the chain of ownership has been broken. And that only the later regulation — often more stringent — must be considered for removal or compensation.

Hood River County resident Lila Draper ran into that roadblock with her Measure 37 claim. After being widowed in October 2005, Draper decided to secure her financial future by requesting a restoration of the right to divide her 21-acre parcel into 10,000 square foot home sites.

Although Draper had lived on the property for almost 35 years, county planners determined that she no longer qualified for multiple lots Their reasoning was that Draper and her late husband, Frank, had interrupted ownership by turning the deed, for personal reasons, over to his mother for five months in 1988.

The couple continued to live on the site and used it for farm practices while waiting to regain the deed. However, the county based the qualifying use for a Measure 37 claim on 1988 standards. By that time, the land had been zoned for exclusive farm use with a 20-acre minimum lot size.

OIA is not involved in a pivotal Yamhill County case regarding ownership that is now pending in a lower court. Developer Bob Hemstreet, the plaintiff, acquired his land in the 1950s and has been operating it as a tree farm ever since. However, in 1997, he transferred it to Lazy H Ranch, a limited liability corporation in which he and his wife, Mary, are principals.

The county failed to approve his claim to create up to 852 one-acre lots on the property. They only allowed him to divide his holdings into 17 lots as allowed in 1997.

OIA is representing Jackson County in a Dec. 4 lower court argument against Attorney General Hardy Meyers’ office. At issue is whether a development right gained by a successful Measure 37 claim should pass on to a new owner.

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