Anti-Sprawl Laws, Property Rights Collide in Oregon

Washington Post Staff Writer
Monday, February 28, 2005; Page A01

HOOD RIVER, Ore. -- The nation's strongest laws against sprawl are beginning to buckle here in Oregon under pressure from an even stronger, voter-approved law that trumps growth restrictions with property rights.

In a collision between two radically different visions of how cities should grow, claims under Oregon's new law are pitting neighbor against neighbor, rattling real estate values, unnerving bankers and spooking politicians.

The property-rights law, which was approved overwhelmingly by voters last fall and is known as Measure 37, is on the brink of wrecking Oregon's best-in-the-nation record of reining in sprawl, according to state officials and national planning experts. They say the new law illustrates a nationwide paradox in public opinion: Although voters tend to favor protection of farmland and open space, they vote down these protections if they perceive them as restrictions on personal rights.

"Measure 37 blew up our land-use system," state Sen. Charlie Ringo, a Democrat from suburban Portland, declared while presiding over a tense, standing-room-only hearing on the law that was held recently here in Hood River, a resort town in the Columbia River Gorge.

The law compels the government to pay cash to longtime property owners when land-use restrictions reduce the value of their property -- or, if the government can't pay, to allow owners to develop their land as they see fit. Because there is virtually no local or state money to pay landowners, Measure 37 is starting to unravel smart-growth laws that have defined living patterns, set land prices and protected open space in this state for more than three decades.

Although the unraveling is being watched with alarm by smart-growth advocates across the country, it is exactly what local backers of the new law say they want as recompense for what they describe as years of arbitrary bossiness in the enforcement of land-use restrictions. Smart-growth laws attempt to direct development to areas served by existing roads and utilities and curtail new housing and business construction that will sprawl out to rural areas.

"If you are going to restrict what someone can do with his land, then you have to pay for it," said Dale Riddle, vice president for legal affairs at Seneca Jones Timber Co., an Oregon firm that was the largest donor to the campaign for Measure 37.

Thanks to Oregon's new law, anti-sprawl legislation has lost political momentum across the country, according to Harvey Jacobs, a professor of urban planning at the University of Wisconsin. "It has really excited the property-rights movement and suggests to its supporters that they can challenge smart-growth laws everywhere," he said.

In the Washington suburbs, where only Maryland has passed smart-growth legislation, momentum for the enforcement of those laws began to wane under Gov. Robert L. Ehrlich Jr. (R) well before Oregon voters approved Measure 37. Ehrlich cut funds for acquiring open space, eliminated a smart-growth secretary from his Cabinet and, critics say, supported road projects that encourage sprawl.

Land-use restrictions first began to trigger a national voter backlash in the early 1990s, when a number of states -- Florida, Texas, Louisiana and Mississippi -- passed property-rights laws to protect landowners from monetary losses caused by zoning. But none of these laws was broadly written and none has had a significant impact on local land-use regulation, according to John Echeverria, executive director of the Georgetown Environmental Law and Policy Institute.

Oregon's new law packs a much more powerful punch.

"It is in a different universe," Echeverria said. "It has unleashed a whirlwind. Every single piece of evidence that has come down shows that this measure is destroying the state's land-use system."

In addition to being powerful, the new law is also proving infectious.

A nearly identical bill has been introduced this year in the Montana legislature. In bordering Washington state, which is second only to Oregon in the toughness of its land-use laws, farm and building lobbies are working to put a similar initiative on the state ballot.

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Following is the response that the American Planning Association (APA) director sent out under their Domestic Policy Watch news. It's ironic that he would remind us of Euclidean Zoning as a justification for planning, when the APA has been trying to dismantle Euclidean Zoning across the country for many years now.

Response from the APA: March 2005 Domestic Policy Watch W. Paul Farmer, AICP APA Executive Director Welcome to Oregon 2005 Last November, Oregon voters approved a ballot initiative with a simple premise. The statute states that government should pay cash to property owners when land-use restrictions reduce the value of their property.

Further, if the government can't or won't pay, property owners can develop their land in any way they see fit. The seemingly straightforward fairness of the proposal coupled with an aggressive public relations campaign depicting a 91-year old widow supposedly unable to bequeath land to her children led to strong public support at the ballot booth. Measure 37 won 61 percent of the vote in a state often characterized as the most pro-planning in the nation. The ugly reality of Measure 37 is now becoming apparent.

Last week in a front page article, The Washington Post chronicled the story of Oregon orchard owner John Benton, just one story among many that are based on claims now being made for payments under the new statute. Mr. Benton's family has been growing fruit on a patch of land between the Hood and Columbia Rivers since the early days of the 20th century.

Over the course of the Benton family's ownership of the property, land- use restrictions have been put in place to assure the land remains agricultural. Mr. Benton has other ideas. He'd prefer to convert 210 acres into housing. Today, under current zoning, the Benton property would fetch around $8,000 an acre. As an 800-unit subdivision, Benton figures that amount would rise to $284,000 an acre. So, he presented the local government with a bill for $57 million.

Making the situation even more interesting is that fact that Benton's neighbors, under the new law, lack similar rights. They bought their land more recently and so can make no such claims. They may be stuck with farmland adjacent to a major housing development.

Enter banks and appraisers who are now struggling to determine how to value land — Benton's or his neighbors. Oregon now has two classes of landowners. One, composed of families or corporations that acquired property prior to the adoption of various land-use laws, may do whatever they choose with their land or be paid vast sums that simply don't exist in public coffers. Then there's everybody else.

This second category not only suffers the potential side effects of the new development but also may be dealt a financial blow from decreased or uncertain real estate values. Fairness in Oregon now depends on an arbitrary date, not on a democratic process. We think fairness requires a deliberative process, open to everyone, that allows citizens to choose a planning system such as Oregon's to distribute the costs and benefits of change.

What is unfair is a cleverly worded ballot initiative that makes instant kings and paupers without appeal, deliberation, or public involvement. How could this have happened? The question isn't simply an academic one. Neighboring Washington State is now considering virtually identical legislation and many observers of state political trends expect others may soon follow.

The issue of why Measure 37 was successful and how Oregon will cope is complex. This week APA, in partnership with Oregon Congressman Earl Blumenauer, convened a broad array of national organizations, policy experts, and political leaders to delve into the problem and strategize ways to mitigate the harm and limit the spread to other areas. Some answers though are clear enough. One: Words matter. The proponents of Measure 37 were able to frame the debate as a matter of fundamental fairness.

When voters looked at their ballot, here's the description they saw for Measure 37: “Governments must pay owners, or forgo enforcement, when certain land use restrictions reduce property value.” The election was likely lost as soon as the ballot title was approved. Two: Less really is more. Proponents presented a simple and elegantly constructed case to the public. Real individuals were hurt by the actions of a depersonalized government. Shouldn't someone be accountable? Get mad and make them pay! The democratic process that crafted and maintained the Oregon planning system is not so simply described. A look inside the numbers in Oregon at first may seem counterintuitive. One might suspect that support for Measure 37 would break down along the state's familiar urban/rural, East/West divide.

Yet, while support was higher in the rural eastern part of the state, Portland's Multnomah County was evenly split. It seems voters didn't see it as an attack on the state's long-standing planning and environmental system but as a simple issue of fairness. In fact, before the vote, focus groups and surveys showed that voters did not believe that Measure 37 was a real threat to the Oregon planning system. Measure 37 presents an important challenge to planning.

The challenge isn't limited to defense of the Oregon planning system for its own sake. It's a more fundamental challenge to ensure the public's understanding of who pays and who benefits. A thoughtful democratic process, messy and protracted as it can be, results in a broader degree of fairness to a wider range of people than a narrowly crafted ballot initiative.

Upon close inspection, most cries of unfairness have to do with unbridled self-interest at the expense of lasting value. Good planning promotes a set of shared values that protect all property owners, not just a few. It is useful to recall our history in thinking about the future of Measure 37 and its likely offspring. Our most basic land-use control, zoning, was developed and institutionalized as a tool for protecting property rights and land values.

Herbert Hoover, as Secretary of Commerce promoted standard planning and zoning enabling laws upon the urging of the U.S. Chamber of Commerce. Hoover and the Chamber recognized that in an urban age, willy-nilly land-use decisions would negatively affect property values. While some call Measure 37 a victory for property rights and describe its most ardent proponents as property rights advocates, nothing could be further from the truth.

Using property rights to eviscerate the ability of local citizens to preserve and protect the values that define the community through community-based plans is cynical, elitist, and undemocratic. With no appeal and no notice provisions for neighbors, Measure 37 has cast Oregon back to pre-Hoover days where the only remedy for defending your property rights from your neighbor's pig farm is a nuisance suit.

Neighbors have responsibilities as well as rights. Both must be balanced and respected. In fact, without responsibilities, rights don't exist. Measure 37 removes the responsibility side of the equation. Mr. Benton's neighbors surely have a new understanding of fairness now. Of course, the real drivers behind Measure 37 aren't Mr. Benton and aggrieved centenarians. Corporate landowners are the real muscle behind the movement.

The largest contributors to the Measure 37 campaign were timber and logging companies interested in turning large profits on commercial developments regardless of the environmental, cultural, or economic consequences for citizens. In Washington, the effort to get a similar initiative on the ballot is led by the building and corporate agriculture lobbies.

Back to the question of who benefits and who pays: In post-Measure 37 Oregon, the timber barons benefit and the taxpayers pay. Governments have the responsibility to be fair to property owners. Governments also have the responsibility to protect and empower all citizens and leave opportunity for the next generation.

Planning is the way these democratic ideals are implemented. Rest assured that we will not shrink from the challenge presented by Measure 37. We will defend effective planning efforts and work to improve the tools we use to meet the needs of a new century. Our mission, as individuals engaged in planning and as a national organization, is to ensure that citizens receive the benefits that planning can deliver. This and only this will ensure fairness and protect property rights for everyone, not just the special interests. We rise to the aid of citizens to imagine, create, and sustain communities of lasting value.

 

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