Oregonians Hold Their Ground

It’s been 31 years since then-Gov. Tom McCall asked Oregon lawmakers to protect this fast-growing state from “sagebrush subdivisions, coastal condo-mania and the ravenous rampage of suburbia” -- and the Legislature responded by approving the most complete system of land-use planning in the nation.

Since then, anti-sprawl boundaries have helped revive Oregon’s aging cities and preserve vast tracts of farm- and forestland in a sort of Norman Rockwell tableau of rural America.

While a mini-Silicon Valley has sprouted in suburban Portland, for example, farmers have continued to grow crops across the street in an agricultural zone formed to ensure that the long, wet and fertile Willamette Valley is never paved over.

But on Nov. 2, Oregon’s voters, angered by what they saw as bureaucratic disregard for landowners, staged a revolt. By a vote of 60% to 40%, they approved a process designed to restore property rights stripped from owners by regulations enacted after they bought their land, or to require governments to pay a fair price for taking those rights away.

“A lot of voters just thought what was happening here was fundamentally unfair,” said Ross Day, legal counsel for Oregonians in Action, the property-rights group that wrote Measure 37. “In Oregon, when government steals your retirement nest egg, they call it planning.”

Fueling the campaign was the story of Dorothy English.

“I’m 91 years old, my husband is dead, and I don’t know how much longer I can fight,” she said in radio ads for Measure 37.

The Englishes bought 40 hilltop acres near Portland overlooking the Columbia River and Mt. St. Helens in 1953, intending to divide the parcel for retirement income. But the 1973 statewide planning law stopped that.

“It ruined our lives,” she said in an interview. “We could have done anything we wanted for our family and our friends. But then we couldn’t do anything. I worked until I was 80.”

Most voters in all but one of Oregon’s counties responded by voting for Measure 37. The campaign succeeded despite being outspent by opponents, who included governors from both major parties, 15 of 18 county farm bureaus, planning advocates, environmental groups, labor unions and the three statewide utilities.

They argued that the measure would undermine a planning system that had helped Oregon flourish for three decades, funneling money into decaying downtowns, fostering the reuse of vacant urban lands and luring affluent newcomers to vibrant new neighborhoods.

Yet even some supporters of the state’s land-use system acknowledged that it had become too complicated and inflexible.

With passage of Measure 37, Oregon has gone further than any other state to protect individual property rights, essentially prohibiting so-called “down-zoning” without just compensation, experts said. Indeed, Oregon has gone beyond what the U.S. Supreme Court has required in so-called “regulatory taking” cases, according to some legal experts.

In such cases, the high court has generally required compensation only when owners were forced to give up full use of their property as a result of government rules.

Unlike a government condemnation proceeding, in which owners are paid when their land is seized for a public project, a regulatory taking leaves ownership in private hands and the government generally does not pay owners for partial loss of its use.

Critics predict that the Oregon law will open the floodgates to sprawl, blurring the distinctions between urban and rural landscapes that have heightened Oregon’s appeal.

“Oregonians didn’t see the connection between the sprawl that will now occur in the countryside,” said Portland attorney Robert Stacey, a leading opponent of the ballot initiative.

Critics predict chaos in planning and gross inequities in how zoning laws are enforced.

Cash-strapped governments may have no choice but to waive development rules for owners whose property rights were devalued, while enforcing those same rules against neighboring owners who bought their land after the rules were passed.

That could result in hopscotch, leapfrog development that is common in other states, and precisely what Oregon’s planning rules are designed to block: a residential subdivision in the middle of a farm belt, a Taco Bell between houses in a residential tract, a Wal-Mart along a freeway that had been reserved for stands of timber.

Hundreds of longtime landowners phoned their lawyers to find out how they could file a claim once the new law took effect in December. Implementing the law is a top priority for the Legislature when it returns to session in January.

Property-rights experts said the initiative’s success in a state known for its liberal politics could reverberate across the U.S.

“Those who want to get rid of government see this law as a franchise product: If it worked in Oregon, it can work anywhere,” said Stacey, executive director of 1,000 Friends of Oregon, formed in 1975 to implement Oregon’s new planning framework.

That’s already happening.

“We’ve sent out lots of e-mails about this, so people can get linked to Oregonians in Action,” said Chuck Cushman, co-founder of American Land Rights Assn. in Washington state.

J. David Breemer, an attorney for Sacramento-based Pacific Legal Foundation, the nation’s largest property-rights group, said the Oregon measure had the strongest property-rights protections in the nation. And there will be more just like it.

“What’s going on across the nation is that representatives of urban citizens are telling ranchers and farmers that they can never build anything on their land because people living in the city want to drive out to the country in their SUVs and see open space and feel warm and fuzzy about it,” he said.

Nationwide polls show that people support more environmental protection, Breemer said. But when those restrictions affect them, they don’t like it.

In the 1990s, legislation to provide some measure of property-rights protection was introduced in 39 states, passing in 15, according to Breemer’s tally.

A Texas law requiring compensation if at least 25% of the value of land is lost may have been the strongest until Oregon’s initiative passed, he said. There is no value threshold in Oregon.

Richard M. Frank, California’s chief deputy attorney general, said he doubted that the new Oregon law was exportable southward.

That’s because California has no statewide planning system and because local restrictions on land use vary so widely, Frank said. “This really hasn’t been a huge issue in California for the last 10 years,” he said. “And those efforts have never really gotten very far.”

The U.S. Supreme Court has considered cases involving regulatory taking since the 1920s, Frank said, and it’s been a “hot issue” since the late 1970s. The court decides what is warranted under a clause of the Constitution that requires “just compensation” when government takes private lands.

Frank’s office won a pivotal case before the high court in 2002, when the court decided that a Lake Tahoe regional planning agency had not overstepped its bounds by prohibiting construction of homes during a three-year building moratorium in the 1980s -- and property owners were not entitled to compensation.

Not all legal experts in Oregon believe Measure 37 will trigger a revolution in land use there.

Day, the lawyer who helped write the initiative, said he believed opponents had overstated its potential negative effects. The new law will be used mostly in rural areas, where state rules have prevented landowners from building even a single home on their property because they could not meet guidelines for farm production, he said.

Under the measure, uses that threaten public health and safety or are public nuisances are prohibited. In addition, city services such as sewer and water lines cannot be extended beyond existing urban boundaries to serve new development.

But critics of Measure 37 point to farmers such as Dave Vanasche to demonstrate the initiative’s potential effect.

Vanasche, 55, farms the same land his grandfather settled in 1896. It’s three miles up a country road from the town of Cornelius, five miles from the computer-chip boomtown of Hillsboro, and 10 miles from the urban growth boundary of metropolitan Portland, a three-county area of 1.3 million people that exploded with growth during the last two decades.

Long insulated from the growth, Vanasche said he’s now in the cross hairs of Measure 37.

“It’s basically going to destroy this industry,” he said, because about two-thirds of the 100,000 rural acres surrounding his property have been owned by the same people for several decades, and owners are now free of farmland protection rules.

At worst, Vanasche foresees construction of high-density subdivisions served by package sewer plants and well water, hard against the grass- and clover-seed fields he cultivates. At best, he expects a crop of small ranches next door.

“Everyone wants to live out here in the country,” said Vanasche, a Washington County farm bureau director. “But as soon as they get out here, they don’t like the smell or the dust or the smoke when we burn our fields, or the noise from our equipment.”

Despite right-to-farm laws, lawsuits and feuds with his new neighbors would follow, he said.

“All this just scares us,” said Vanasche’s mother, Florence, 85, who has lived her whole life within a mile of the Vanasche farm. “I just want to be left in peace.”

*

(BEGIN TEXT OF INFOBOX)

Lay of the land

Oregon’s statewide land-use planning system has funneled growth into cities while preserving vast tracts of farmland and forestland. How the land is currently divided:

Federally owned: 57%

Owned by state or local governments: 3%

Protected farm and forest: 38%

Land within city boundaries: 2%

Source: Oregon Department of Land Conservation and Development