Note: This is part of a series.

As I mentioned last week, I’ll be writing a series of posts about the struggle over property rights that is perhaps the single biggest environmental controversy in the Northwest. I was planning to build on last week’s question when I was sidetracked by every researcher’s best friend and worst enemy: data!

Data, specifically, from Oregon, where property owners are currently making claims under Measure 37, a prototype pay-or-waive law that forces governments to either waive land use regulations or else shell out tax dollars to property owners for the losses they claim. Voters in Washington may soon face Initiative 933, a very similar proposal. (And Idaho and Montana voters may see something similar too.)

How much would I-933 cost Washington? That is, how much would taxpayers be forced to pony up to enforce land-use regulations under a pay-or-waive scheme? The best way to answer that question may be to take a look at what’s happened in Oregon. What kind of losses are land owners claiming in Oregon under Measure 37?

Apparently, the sky’s the limit. According to Oregon’s handy registry of Measure 37 claims, nearly 1,400 claims have been filed, for a total value of nearly $3.3 billion. The average claim is $2.3 million. (This business of “losses” is a tricky one as it requires assessing not just what the property would sell for, but what the economic value of activity on the property would be if it were not regulated.)

One claim in particular leapt out at me: the claim of a Pendleton-area landowner for $284 million, by far the most expensive claim under Measure 37 so far. (For comparison, Seattle’s brand new Qwest field, home of the Seahawks, cost $360 million to build.) Just what exactly has this Pendleton landowner been prevented from doing that’s worth $284 million?

Pendleton satellite

What could it be that she’s planning to do—currently outlawed—that could bring in that kind of dough? The registry doesn’t list the size of the property or its current use, so it’s hard to judge. But it does list an address, so I used Google Maps to find a satellite image of the place. Turns out, the place is arid land well outside Pendleton proper, closer to the little town of Pilot Rock. Irrigated farming appears to be the primary land use in the region, as evidenced by the green circles in the dusty landscape.

$284 million, huh?

  • Oregon’s state agencies are too strapped to investigate the claim, issue an assessment, or try to negotiate. Instead, they just waive land-use regulations and the Pendleton-area landowner can do pretty much anything she pleases now.

    She’s not the only one. The second most expensive claim—for more than $64 million—comes from a fellow outside of Hood River. Employing Google Maps once again, it’s easy to find out that he is an orchard owner, though one can’t tell how extensive his property is. But what are laws preventing him from doing that could be worth $64 million? I’m guessing it’s not agriculture.

    Hood River satellite

    I checked with the Northwest Multiple Listing Service to get some idea of property values in the Hood River area. Turns out there are a total of 79 properties for sale in his zip code, 97031, and all of them together don’t add up to anywhere near $64 million. Not when you add in the million-dollar-plus luxury homes with views of the river. Not when you add in the farmland. And not even when you add in the little ramblers and rowhouses in town. Not even close.

    He is very likely a land speculator, looking to subdivide his orchards and sell them off, perhaps as luxury homes. He’s in a rural area, but still within reasonable proximity to both the town of Hood River and the Columbia River. It’s a lovely area and doubtless he could make some money from plowing his orchards into asphalt, but $64 million doesn’t seem likely.

    But it doesn’t really matter—he could have picked any old number out of a hat—because the value of the claim is almost irrelevant. Agencies don’t have the resources to contest Measure 37 claims and not a single government agency has. And Oregon taxpayers probably wouldn’t look too kindly on spending $64 million to keep him in the farming business instead of the land speculator business. So the only option is to suspend land use regulations for him and wait for him to turn his fruit trees into vacation houses or strip malls or maybe even a strip mine. There’s no way for the community to know what he’ll do and no way for Hood River neighbors to have any say at all in the matter.

    Okay, I admit it: I cherry-picked two extreme cases. But I think the extreme cases ought to matter to Washington voters deciding on I-933. Why? Because there is effectively no way to contest the value of the claim, developers can make wildly outrageous claims.

    It sounds a bit absurd, but in a sense it doesn’t really matter whether the claim is for $200 or $200 million. Cash-strapped governments are in no position to conduct independent assessments, so they must take property owners at their word. In Washington, I-933 may actually heighten the abusrdity because the initiative specifically does not allow agencies to charge even a nominal filing fee to cover the costs of processing the claim. And if the agency tries to negotiate or conduct an independent assessment of the claim, taxpayers will be required to pay the full cost. What’s more, taxpayers are also on the hook for attorney’s fees if the property owner wants to get a lawyer.

    In Oregon, that has invariably meant waiving regulations, giving rise to a policy environment that is, for all intents and purposes, free of policy. Without any practical way to assess the claim’s merit, I-933 will become tantamount to waiving land-use regulations every time someone makes a claim.

    Should Washington communities have any say at all in what property owners can do on their land? I suppose we could call that the $284 million dollar question.