Bulletin E-Edition:
Awaiting decisions in a land use limbo
One of the goals of Measure 49 was to streamline development claims made under Measure 37. With a key deadline looming, though, the law's meaning is still debated, and families like the Bolkens are increasingly frustrated.
By Hillary Borrud / The Bulletin
Published: October 26. 2009 4:00AM PST
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Landowner Olaf Bolken 72 stands at an access road he built in an effort to break his property north of Terrebonne into housing lots under Measure 37. Bolken says the land is unproductive as farmland but it offers views of the Cascades.
Photos by Rob Kerr / The Bulletin
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TERREBONNE — For years, Olaf and Jannis Bolken wanted to sell the older house on their 31 acres to their son Torfinn, who lives there with his family.
Olaf and Jannis, both 72, live in a newer house they built after they purchased the property north of Terrebonne in 1971.
But they could not sell the old house to their 41-year-old son because a zoning change on their land in 1979 prevented them from dividing the property.
“By selling the one lot to our son, that would clear all our debts,” Olaf Bolken said.
Instead, Torfinn Bolken chips in to help pay the mortgage, and Olaf said he has to count the payments as rental income.
The Bolkens thought Measure 37, which loosened Oregon's strict land use laws in 2004, would be a solution to their problem, and they applied for a development waiver under the measure.
In the years since, however, the Bolkens have grown frustrated as their effort to subdivide their property and build up to three new homes did not move forward.
Olaf Bolken said the process has taken too long.
“That's just plumb ridiculous,” Bolken said, as he sat in his dining room Tuesday. “I go by the letter, whatever they say. Then they come up with a new rule.”
Jannis Bolken agreed.
“It's ridiculous to fight three years for what was legally ours,” she said. “They want us to die or give up.”
Measure 49 was supposed to streamline claims made under Measure 37. But two years after voters passed Measure 49, property owners, judges, attorneys and government officials are still struggling to agree on how to interpret the law.
The Legislature imposed a Dec. 31 deadline for property owners to decide whether to continue trying to develop their land under Measure 37, or opt for more limited development under Measure 49.
The Deschutes County Commission is scheduled to hold hearings beginning Wednesday to determine whether property owners who received waivers allowing them to develop under Measure 37 have a “vested right” to continue the projects under Measure 49.
To decide if property owners have vested rights, commissioners will consider how much time, effort and money owners have invested.
This is the question the Bolkens face, along with about seven other property owners in Deschutes County.
“That process has been slow,” land use attorney Ed Fitch said of vested rights determinations. Fitch represents property owners in Measure 37 and 49 cases, and he said property owners who chose the Measure 49 express route are moving more quickly.
Commissioners will consider a wide range of issues, from how much people spent to what they spent it on — “hard costs” such as building costs or “soft costs” such as attorney fees — and whether the work completed could be adapted to other uses, said Assistant County Counsel Steve Griffin.
Seeking a decision
As county officials and courts sort out Measure 49, Olaf Bolken said he and his wife need a decision so they can pass their property on to their children.
When the Bolkens moved to the area from the Willamette Valley, the zoning on their property allowed housing lots as small as 5 acres.
But the zoning adopted since then does not allow them to even divide the property, Bolken said. The soil was too shallow to farm, Bolken said, and the property was too small to continue raising Charolais cattle as he had in the Willamette Valley. Instead, Olaf and Jannis held other jobs, and Olaf worked with peewee rodeo stock animals.
Bolken said he and his wife want to subdivide their property so they can finally sell the older house to their son, sell the newer house where they live to someone else and build a house for themselves on the back of their property, farther from U.S. Highway 97.
The Bolkens also want the remainder of their property divided into two lots, so their children can sell them in the future if they wish, Olaf Bolken said.
“It's not that I want to make a subdivision out here or anything like this,” he said.
“You just can't make any money off it, because it's too small to farm. ... If it was good farmland, I'd be on the opposite side, saying don't divide it up. But it's not good farmland.”
Hillary Borrud can be reached at 541-617-7829 or at hborrud@bendbulletin.com.
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