Stuck between Measures 37 and 49

Sandy family dumps money into claim but finds project in limbo

By Marcus Hathcock , The Clackamas Review, Jan 2, 2008

William Kitchen spent tens of thousands of dollars of his own money on permits and construction costs to build a road to nowhere.

At least, that’s what it seems like right now.

The road – more like a gravel driveway – extends southward along the eastern side of the Kitchen family property on Phelps Road in Sandy. It leads to the spot where William’s youngest son, Bill, had planned to build a house.

Under Measure 37 – the bill that allowed property owners to either turn back the clock on land-use restrictions or get compensated for those restrictions’ effect on property values – the Kitchens were allowed to set up their son for a home on the land where he grew up.

But since voters passed Measure 49, which amends many of the provisions of Measure 37, the family – and many others across the state – finds its project in limbo.

History with land

William discovered Phelps Road by accident. As a 17-year-old Gresham High School student, he and his buddies stumbled upon the rural neighborhood while trying to find Marmot.

“We got lost and we ended up on this road,” William said. “I said to my friends, ‘Boy, I’d like to live there.’ They all laughed at me.”

That dream came true before long. William and his wife, Marge, bought a house on Phelps Road and only moved once – to a different house on Phelps Road. At their current property they raised their children and enjoyed most of their 65-year marriage in the peace and quiet of the tucked-away farm street.

The 84-year-old World War II veteran has lived on Phelps Road since 1949. He’s been at his current property since 1963. So when the chance came to give his youngest son, Bill, a piece of the homestead through Measure 37, he jumped at it, being one of the first in the Sandy area to file a claim in 2005.

Approved, then denied

Clackamas County originally approved the Kitchens’ Measure 37 claim that would have allowed them to subdivide their 32.25-acre property into four pieces: a 0.8-acre parcel that would go to a grandchild, an acre that would be sold and a six-acre parcel that would go to Bill Kitchen, 50, William’s youngest son.

“He’s wanted to live there ever since I could remember,” William said.

Measure 49 now requires that landowners of high-value, exclusive-use farmland – such as the Kitchens – to subdivide in parcels no larger than two acres.

“Their thinking was that nobody needs bigger than two acres,” Smith said. “That they can’t take care of it. But it’s just not practical for rural settings.”

The Kitchens would have begrudgingly reduced Bill’s parcel to two acres, William said, but another provision of Measure 49 prevented Bill from building his house at the end of the road the family built.

The new rules also compel property owners to cluster new houses near existing homes, which would force the Kitchens to build Bill’s home close to Phelps Road and would leave the family with the road to nowhere.

“This was not the intent of Measure 49,” Rep. Patti Smith, R-Corbett, said, as she toured the Kitchen property. “It was created to fast-track small subdivisions like this. That’s what people voted for, and I think that is good land-use planning. This family did all they could do.”

The Kitchens spent $36,000 of their own money on permits and construction costs to build a driveway that extends from Phelps Road to the southeast corner of their property. That didn’t include the $43,200 permitting fees paid to the county, nor the $18,000 in deferred taxes they paid on their exclusive farm-use land.

Had the Kitchens known that their claim would be invalidated, they wouldn’t have paid the thousands of dollars to plat the land nor the deferred taxes.

“Their life savings is gone,” said Bill.

Holding pattern

Now, as state and local governments decide how to implement Measure 49 in light of Measure 37 claims that were in process, the family can’t get permits to subdivide the land, much less build Bill’s house.

There are many questions from many people like the Kitchens, who have been caught between measures 37 and 49, and for now, the government admits it doesn’t have any answers for them.

“Our office is unable to issue any additional permits on Measure 37 claims, because that law is no longer in effect,” said John Borge, the principal planner for the Clackamas County Department of Transportation and Development. “It’s pretty tricky; we have a lot to figure out about how Measure 37 claims will transition into Measure 49 claims. The measure is only a few weeks old right now.”

Now, the Kitchens must wait while the state of Oregon sorts out how the vested use doctrine – by which landowners may proceed with a development under the land-use rules that existed when they began the development – applies to them, if at all.

“(Vested use) has not been a very common type of review that local governments have performed over the last several years,” Borge said, “but it is something that will become more frequent now with the Measure 37 situation. There are a number of different developments – not just in this county, in the state – that are likely in the process of being initiated or completed, and all of these developments have circumstances that are unique to them.”

Should the county rule that the Kitchens’ development no longer is possible, it remains to be seen whether the Kitchens would be eligible for compensation of the money they spent on permits and the “road to nowhere.”

“It gives you a pretty hopeless feeling,” Bill said. “I’m sure some people will just plumb roll over and give up. I don’t intend to.”

Smith wants to help.

“I’m afraid that claims like this are going to get lost in the shuffle,” Smith said. “Common sense tells you that they’re not (developers). It’s all going to family, which is exactly what Measure 49 intended.”

Smith says she’s hoping the Legislature, via the revived Big Look Committee, can address the issue soon.

“I know other cases will surface,” Smith added, “and each one will be different. We have to find answers that work. We’re never going to end this debate if we don’t provide answers for people like Mr. Kitchen.”