Article by Peter Wong, Statesman Journal, October 29, 2007

The passions of farmers and landowners come through in the television, radio and direct-mail advertising for and against land-use Measure 49.

Total contributions on both sides of Measure 49 do not come close to the record-setting pace of millions in fundraising for and against Measure 50, the tobacco-tax increase that also is on the Nov. 6 ballot.

But the money is more than enough to pay for ample advertising, all aimed at voters to cast their ballots one way or the other.

Here's a guide to some highlights of Measure 49, and a look at underlying arguments behind some of the ads. There is no attempt to analyze each ad.

Question: What is Measure 49?

Answer: Supporters and opponents disagree on its effects, but it would do two things.

It would limit development allowed under the property-compensation law that voters approved in 2004 as Measure 37, although landowners who filed claims under that law still could create some lots and build houses. How many home sites will hinge on where the property is.

It also would allow landowners to transfer or sell lots and development rights obtained from government waivers of land-use regulations under Measure 37. Virtually all claims have been settled through waivers; only one claim has been paid so far.

Q: How do the ads attempt to persuade voters one way or the other?

A: Numerous broadcast ads fall into two categories.

In the first category are "testimonials" from farmers and landowners on each side, saying in 30 seconds or less how voter approval of Measure 49 would affect them positively or negatively.

In the second category are ads that affirm or attack one side's arguments.

Broadcast ads also use images as part of their persuasiveness.

Q: Are the people in the "testimonials" real?

A: At least two of them are from Marion and Polk counties.

Kathy Freeborn is a farmer from Rickreall who supports Measure 49. Her father, Dean, farms nearby. "Measure 37 puts working farms like ours at risk," she said in the ad. "It means thousands of houses right next to farms, and where water is already scarce."

Freeborn said in an interview later that she is concerned about new nonfarming neighbors raising questions about farming practices, despite a 1983 law that is supposed to shield farmers from nuisance complaints.

David Olson of Salem is a landowner who opposes Measure 49. He said he would lose his right to build a home if Measure 49 passes.

According to Measure37watch.com, a Web site that is monitoring anti-Measure 49 ads, Olson cannot build a home in the first place.

Olson's situation is more complex, however, than depicted either in the TV ad or the Web site.

The state denied a 2005 claim filed by Olson and his son Duane to build or restore a house for nonfarm uses on farmland in the 9700 block of West Stayton Road near Aumsville. David Olson obtained ownership in 1964, but, according to the state, he transferred it to Duane Olson in 2004.

David Olson argued that he retained an interest in the property, and that his waiver of land-use regulations should date back to 1964, allowing him and his son to carry out their plans. A Marion County judge upheld Olson's position in 2006.

Various cases about ownership under the 2004 law are pending in the Court of Appeals.

Q: What about other ads by supporters of Measure 49?

A: Pro-Measure 49 ads raise questions about the extent of development allowed under Measure 37 claims and some of the contributors to the anti-Measure 49 campaign.

The ads depict images of subdivisions.

According to a database maintained by Portland State University, 42 percent of the more than 7,500 claims filed under Measure 37 are for one to three home sites, and 30 percent are for four to 10 home sites.

Some of the remaining claims, however, are for hundreds or thousands of residential lots, or for commercial and industrial development that would be barred under Measure 49.

Measure 49 opponents said landowners often filed claims for maximum amounts but not expecting to develop that many lots. Because specific developments would have to meet current standards, water and sewer services might be difficult to obtain.

Measure 49 supporters, however, argue that even smaller-scale developments beyond those allowed by Measure 49 would disrupt farming and forestry practices in rural areas.

Few developments allowed under Measure 37 claims have broken ground so far, but they are stalled mostly because of legal and financial questions. The list of developments is expected to grow if Measure 49 fails.

The pro-49 ads also take aim at millions of dollars donated by "developers and timber companies," which are supplying a good share of the opposition's money.

Stimson Lumber Co. of Forest Grove, the top donor against Measure 49, also has filed the most extensive claims for development under Measure 37. Its chief executive said the company wants to preserve its options for the future, but Measure 49 supporters argue that land zoned for forestry should remain in that use.

Q: How about other ads from opponents of Measure 49?

A: Most claimants appearing in ads said they would lose "everything" if Measure 49 passes.

But even though the measure would curb development permitted under Measure 37 claims, they would not be deprived of their property. They still would have development options -- up to three home sites on "high-value" farm and forest lands, and areas designated as limited in groundwater, and up to 10 home sites if they can prove financial losses from land-use regulation.

Measure 49 opponents argue that because of these restrictions, few landowners would qualify. Measure 49 supporters said the restrictions carry out voter intent under Measure 37.

Q: Where are all these claims, anyway?

A: Claims in the Willamette Valley account for more than one-third of the affected acreage statewide. But according to analyses of the PSU database, they also amount to 61 percent of the claims on farmland statewide. The valley has about half the state's "high-value" farmland, based on soil quality, irrigation and actual production.

All but about 4 percent of claims were filed on rural areas outside urban-growth boundaries of cities.

Q: What about the argument by opponents that passage of Measure 49 will repeal property rights under Measure 37?

A: Opponents, notably James Huffman, a professor and former dean of the law school at Lewis and Clark College in Portland, based their argument on a 1992 U.S. Supreme Court decision in a South Carolina case. The court held then that government was not obligated to pay landowners even if regulations left them with very limited use of their property.

How limited has been a big question.

Federal and Oregon constitutions guarantee that government must pay landowners "just compensation" when it takes property for a public purpose, such as a road or building.

The long-running debate has been about "regulatory takings," under which landowners retain some but but not all economic use of their property under government regulations. Zoning regulations restrict land uses, but courts have upheld regulation as a reasonable exercise of government authority to protect the public.

The U.S. Supreme Court hasn't been precise in more recent rulings about when regulations amount to "takings." It appeared to open the way to an expanded definition of "takings" in a 2001 case from Rhode Island, but sent the matter back to the lower courts.

The Oregon Supreme Court, in a 2005 case, rejected a timber company's claim to compensation based on a state agency decision to bar logging on part of a 40-acre parcel for environmental reasons.

Q: Wasn't Huffman's letter to voters controversial?

A: Yes, but for other reasons. Huffman identified himself as a professor and former dean, but critics said some recipients interpreted the letter as an official opposition statement by the law school. The school's current dean said it is neutral on the measure.

Huffman argued in the Oregon Supreme Court in 2006 on behalf of Oregonians in Action, a property-rights group that took part in a legal defense of Measure 37 -- which the court upheld -- and is leading the opposition to Measure 49. Oregonians in Action and the current law-school dean have traded comments about who is defaming who.

Q: Who paid for mailings of the letter?

A: The letter itself doesn't say so, but it was distributed by Measure 49 opponents.

Oregon's disclosure requirements for printed campaign material were effectively shelved after the U.S. Supreme Court overturned a similar law in Ohio in 1995. Broadcast advertising is regulated by the Federal Communications Commission and federal law, so disclosure requirements apply to those ads.

pwong@StatesmanJournal.com or (503) 399-6745