Landowner loses Measure 37 rights with transfer of property

County says original zoning is valid only if ownership doesn’t change hands — even temporarily

January 14, 2006

Lila Draper is aghast that Hood River County would even consider using a “technicality” to get around her Measure 37 claim.

The Leasure Drive resident has lived on her property for almost 35 years. In October she was widowed but held on to the belief of her late husband, Frank, that the new law would restore her financial security.

“You pay taxes and payments for all of these years. And you always think that you’ll have an asset for your retirement – but you never know,” said Draper, 67.

Her 26.40 acre parcel, divided into three tax lots, has been under the ownership of Frank’s family since 1942. The couple acquired a 21-acre piece in 1971 that was zoned to allow 10,000 square foot home lots on individual septic systems.

Their home and shop, along with several outbuildings, sat on another five acres. In 1988, the Drapers added four-tenths of an acre to their holdings that was zoned for agricultural use.

In April of 1988, for personal reasons, the Drapers deeded over the 21-acre tract to Mary Draper, Frank’s mother. Five months later, she signed it back to them. Frank and Lila had continued to live in their manufactured home during that brief period of transferred ownership. They also kept farm animals inside the fenced pasture.

However, county planners regard the Drapers’ ownership as beginning in September of 1988. By that time, the land was zoned for exclusive farm use with a 20 acre minimum lot size and new dwellings only conditionally permitted.

Under Measure 37, which passed statewide in 2004 by a 61 percent margin, a qualifying development right is tied to the zoning in place when the land was acquired by the present owner. That individual can request compensation for lost value due to the regulation or a restoration of the former allowable use.

In the language of the law, an owner is referred to as the person named on the deed or holding an “interest therein.”

Steven Andersen, a consulting land-use planner hired by Draper, contends the county is not adhering to the law in the Draper case.

“This is just a matter of fairness,” said Andersen. “What I’m hoping is that the affidavit that I submitted with a letter this week is going to help the county board see that Lila’s ownership interest has been continuous.”

The notarized affidavit he submitted with a Jan. 9 protest letter was signed by both Frank and Mary last August. It states that a verbal agreement was made with his mother for a short time but the Drapers retained their legal possession.

“They (county planners) asked if I had anything in writing to prove that we still owned the land then. But we were family, a verbal contract was enough,” said Draper. “It just seems to me that this is wrong. We weren’t even told that the zoning on our land had been changed in the first place.”

When the Drapers did learn that they could only farm on the land they tried a number of ventures. But, between the limited amount of acreage and the fact that it lies in a frost zone, they found it difficult to make a profit from their labor. Lila said Frank was furious when they were denied the right to even shave off a parcel for the home site of their son Corey.

“Leasure Drive is even named for our family. We have been here for generations and, these days, everything that we try to do just seems to get denied,” said Draper. “I think that people, within reason, should be able to do what they want with their own land.”

Dave Meriwether, county administrator, declined to comment on the merits of the letter sent by Andersen. He said the county board will be presented with the arguments and the affidavit for consideration.

“We received his objection to the staff interpretation and his letter will be included in the record and a presentation made to the commission,” Meriwether said.

Andersen said it is “frustrating” that the county does not have a hearing process to discuss issues related to Measure 37. He believes the intent of the law was to give property owners back the rights that government had taken away. And every effort should be made to match the letter of the law with its intent.

That opinion is shared by Ross Day, legal affairs director for Oregonians in Action, the property rights group that authored Measure 37. He said it has been “interesting” to note how many roadblocks government agencies have managed to throw up in order to circumvent the will of the people.

He said the same methodology being applied to the Draper claim has been used by some counties on claims where family farm land was purchased and later turned into a corporate interest. Even though it is clear that the same individuals are the owners, he said some jurisdictions are refusing to consider that fact.

“Our position is that Mrs. Draper has met the legal test if she can demonstrate that she was living on the property and had interest in it,” said Day.

This week, the Oregon Supreme Court heard oral arguments on a lower court ruling that found Measure 37 unconstitutional.

Day said it would not be surprising if a ruling is made within the next month since the appeal process moved at “lightening speed” to the state’s highest court.

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