For the last 12 years, Frank Hardin and his family have been fighting City Hall--seeking permission to mine shale and gravel from a hillside where miners with picks and shovels dug gold back in the 1860s.
With the surprise passage in November of the most sweeping property takings compensation law in the nation, Hardin hopes city and county officials will finally be forced to either give him the permit or pay him the $50 million he says he is losing because he can’t mine the property.
“We don’t want their money,” said Hardin. “We just want to use our property.”
In 1973 Oregon adopted the nation’s most comprehensive land use laws, protecting farm and forest land from development and creating urban growth boundaries to control urban sprawl. The state has also been a leader in controlling logging on private land, keeping its beaches open to the public, and restoring salmon habitat.
That would all be threatened if a constitutional amendment known as Measure 7 survives legal challenges.
“It does not overturn our land use laws or our environmental laws,” Gov. John Kitzhaber said. “But it raises serious questions about the extent to which we can enforce them.”
Opponents of Measure 7 warn it will grow into a monster.
“The proponents are saying it’s just a little fella, don’t worry about that tyrannosaurus,” said Portland City Commissioner Charlie Hales. “I saw the movie. He’s going to break out of the backyard and eat people.”
Supporters say the measure will be a friendly watchdog, keeping government in check.
“We’ve had a lot of attorneys all over the country look at this,” said Larry George, executive director of Oregonians in Action, a property rights group that led the Measure 7 campaign. “They’re like, ‘What are these guys freaking out about?’ ”
Under Measure 7, people would be able to file claims for financial compensation if regulations reduce the value of their property.
Oregon communities worry they could go bankrupt paying out claims--a specter that might force them to waive land use regulations altogether.
“We have no idea where we would find the funds to pay what someone feels is a just claim,” said Susan Roberts, mayor of Enterprise, where voters helped pass Measure 7.
The state voters’ pamphlet carried estimates that claims could cost the state $1.6 billion a year and local governments $3.8 billion.
George argues that these numbers are way out of proportion.
“I really don’t think there will be that many claims. We’ve probably dealt with about 15 people who called our office who have some kind of serious claim,” he said.
The first came from Hardin and his family. The $50 million they seek is the value of 18 million tons of rock that could be mined from their 32 acres outside Jacksonville. The claim is part of a federal lawsuit against Jackson County, which denied a conditional use permit to mine the rock, and the city of Jacksonville, which didn’t want gravel trucks driving through its historic district.
With voters’ attention focused on the hotly contested presidential race and 26 measures on the state ballot, Measure 7 landed like some alien spacecraft in a farmer’s field in a science fiction movie.
Opponents hadn’t reckoned with the level of resentment that had built up in folks like Hardin over the past 27 years of land use regulation. It overflowed on Election Day, when, with little campaigning by either side, most voters apparently decided on the basis of the one-sentence ballot title, which sounded fair enough.
Support broke along the ancient rural-urban rift, with the cities of Portland, Eugene and Corvallis voting it down, and rural districts throughout the state overwhelmingly supporting it.
Until the passage of Measure 7, John Echeverria, director of the Environmental Policy Project at Georgetown University Law Center, thought the property takings compensation movement had peaked with Newt Gingrich’s Contract with America, when a bill passed the House but failed in the Senate.
Florida and Texas have takings laws, but they are not so far-reaching as Oregon’s Measure 7. And less radical measures were defeated at the polls in Washington and Arizona.
“So Measure 7 seemed to be the last gasp of a bad idea,” said Echeverria. “Obviously the results indicated otherwise.”
After Nov. 7, many communities quickly enacted ordinances allowing them to waive enforcement of regulations that generate claims.
“If the state wants to come in and enforce its own rules, let ‘em,” said Milton-Freewater city manager Bill Elliott. “Then they’re the ones liable.”
The land-use watchdog 1000 Friends of Oregon is challenging the legality of these local ordinances in the Land Use Board of Appeals, keeping local governments in a cross-fire.
“Our view is Oregonians, in passing Measure 7, voted for compensation,” said 1000 Friends spokesman Randy Tucker. “Nothing in Measure 7 indicated they were calling for repeal of our state land-use laws or local zoning.”
“Measure 7 does not protect property rights. It protects development rights,” he added.
Just what Measure 7 does and does not do is the subject of furious debate. It is so vaguely written that even its sponsors--Oregonians in Action--want the Legislature to help define it.
Its text takes up about a page. It specifically exempts federal regulations, and forbids claims on pornography, nude dancing, bars and casinos. It specifically cites the loss of the ability to exploit minerals, timber and crops as legitimate claims. It also allows claims for the costs of protecting wildlife habitat, ecosystems, scenery, historical resources and low-income housing.
For now, the fear and loathing is kept in check by a Marion County Circuit Court order putting Measure 7 on hold while lawsuits work their way up to the Oregon Supreme Court.
Though a number of cities are clamoring for the Legislature to take immediate action, House and Senate leaders are split going into the biennial session that opens Jan. 8.
Senate President Gene Derfler (R-Salem) sees no reason to do anything when it could all be made moot by a judge.
House Speaker Mark Simmons (R-Elgin) wants legislators to at least discuss how they might implement the law.
If it is upheld, the Legislature could refer a measure to the voters to clarify it. Given politicians’ reticence at going against a popular vote, any attempt at repeal would have to come from elsewhere.
Meanwhile, lawyers, land use advocates, environmentalists and property rights advocates are keeping a close eye on Oregon.
“If it can pass in Oregon, surely it can pass anywhere,” said Nancy Marzulla, president of the Defenders of Property Rights in Washington, D.C.
Oregonians in Action:
1000 Friends of Oregon: