Could a rallying cry of property rights blow
a hole in the side of the nation’s surging smart growth
The worry is real following a Nov. 2 vote in
Oregon, a state which since 1973 the Valhalla of rural and
scenic land protection through a system of state-mandated
urban growth boundaries.
By a sweeping 61-to-39 percent margin,
Oregonians approved an initiative, Measure 37, designed to
compensate property owners for virtually any state or local
government regulation that has restricted the use of their
property, or reduced its fair market value.
If government declines to pay, the owner can
go ahead and build on or subdivide his property -- not under
current land use or zoning restrictions but what may have been
legal back when he, or his parents or grandparents, first
Opponents have visions of residential
subdivisions starting to sweep across the rural Willamette
Valley, Cascade mountain vistas spoiled by an eruption of
Burger Kings and Wal-Marts, pear orchards sprouting crops of
McMansions. The new law also seems to make mincemeat of
neighborhood zoning ordinances.
How did such a sweeping measure pass in a
state that had voted repeatedly over recent decades to
preserve the strict system of land use regulation inaugurated
under the now legendary environmentalist, Gov. Tom McCall? A
lot of the answer seems wrapped up in the ballot language
stating quite innocently that government must pay owners when
land use regulations reduce property value.
Opponents made a mistake not challenging the
seemingly innocuous language, notes Mike Burton, former
executive officer of Portland’s Metro Regional Government.
“Even my mother-in-law voted for this thing.”
Just read Measure 37, adds Ethan Seltzer,
land use expert at Portland State University, “and it sounds
like common sense. Unless you know what’s buried in it, you’d
never bat an eye. The problem is that what it means is
The vote is, though, dramatic evidence that
the Sagebrush rebellion didn’t go away with James Watt.
Efforts to pass a national property rights law fizzled during
the Republican congressional rise of the ‘90s, but 39 states
debated and 15 passed laws with some degree of protection.
Ross Day, attorney for the conservative
group Oregonians for Action that pushed Measure 37, reports
he’s been receiving calls from property activists across the
United States wanting “to find out what our secret recipe was
to get it passed.”
Opponents of government regulation believe
Oregon’s measure can be a “franchise product,” a proposition
sellable anywhere, says Bob Stacey, Executive Director of the
environmental group, 1000 Friends of Oregon.
But since no other state has planning laws
as strong as Oregon’s, there’s no other -- except, perhaps,
neighboring Washington -- where a Measure 37 would have as
much impact, notes David Goldberg of Smart Growth America.
What’s clear is that Oregon is now headed
into a maelstrom of legal maneuvers, a lawyers’ field day of
claims against cash-short local governments that will be
obliged to either lift regulations for owners with qualifying
property, or be liable for court suits. How will values be
set? Where will the money to pay come from? What if a
jurisdiction claims it can’t pay? What can be attached-- the
town dump truck, or salaries of local officials?
In retrospect, it’s obvious that defenders
of Oregon’s land use laws, Gov. Ted Kulongoski among them,
missed a bet in not adjusting some of the current law’s
inflexible and irritating edges while they had time. Now
Kulongoski wants to pay claims rather than tear holes in the
land use system -- a dubious prospect as Oregon wrestles with
a $1 billion deficit.
But there could be a silver lining: a fresh
conversation that is less about rules and regulations and more
about how Oregon will preserve its magnificent natural
landscapes for future generations -- balanced against the
rights and interests of today’s property owners to develop and
profit from their holdings. Shared beauty versus individual
rights, present against future -- it is a debate every state
But it won’t be real unless the
conservationists ask the tough
question: What about the
varieties of government action, from highway interchanges to
siting of colleges and laboratories and stadiums, that
dramatically improve the wealth of individuals lucky (or
clever) enough to have property at the right place at the
right time? If government has to pay for “takings,” shouldn’t
it seek to collect for the value of its “givings” -- and maybe
use one fund to balance the other?
As Oregon led U.S. land conservation for
decades, so could its new debate. How about applying
technologies for expert land mapping, like Geographic
Information Systems, unknown 30 years ago? Or setting
incentives for superior planning of city and town centers, to
achieve more density, reduce pressure on the countryside?
Sadly, Oregon’s imbroglio over rights, fees,
property and budgets, will likely drown all that out. But not,
let’s hope, for too long.
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