We paused in front of a mobile home, and Dondero observed that people in trailers are also good prospects: "They’re very congenial, amazed that someone is coming to their door to ask them about a political matter." An elderly woman opened the door, and signed. Across the street, Dondero got a young mother wrestling with a baby in a stroller. Down the block, he got us invited into the porch room of a tidy little house, and it was a three-fer: A gray-haired farmer, just in from the fields, and his son and daughter-in-law all signed.
In fact, most people Dondero approached signed his petition. It only took them a minute or two. Few asked for an explanation; many seemed to sign out of politeness.
In Butte, a Democratic stronghold, and Bozeman, a college town, Dondero ran into liberals who refused to sign and even got in his face. Even in small towns, he sometimes hit fierce opposition.
"I hate liberals," he told me. "They just don’t get it. … When you petition for the libertarian (causes), you get a thick skin. Nothing fazes you. I’m one of the few people who can do this. I have the guts."
In my talk with Howie Rich, I told him that, despite the campaign’s sales pitch, I believed these initiatives are about a lot more than eminent domain. Nationwide, eminent domain is invoked on behalf of developers only a few thousand times a year. But the proposed regulatory-takings initiatives are likely to affect millions of property owners, day in and day out, year after year. "I agree with you," Rich said, "the implications … on the regulatory extent are very far-reaching, very important." In fact, he said, the originator of the regulatory takings idea, University of Chicago economist Richard Epstein, e-mailed him a while ago, saying that "trillions" of regulations can be cast as takings.
To get perspective, I doubled back to the father of these initiatives, Oregon’s Measure 37. I learned that despite the delays caused by court fights, Oregon property owners have already filed about 2,700 Measure 37 claims, aiming to develop about 143,000 acres. Most claims are designed to loosen up the zoning of farmland and forest land. Some would break small parcels into a few additional lots. Some are from billboard companies that want to put up bigger ads in Portland. Others are for developments of hundreds of new homes, resort hotels and mines. All told, the claimants demand that governments either waive land-use regulations or pay nearly $4 billion in compensation. Not surprisingly, in almost every one of the 700 claims settled to date, governments have waived the regulations.
And that’s likely just the start of an avalanche. Since the Oregon Supreme Court shot down a legal challenge to Measure 37 in February, there’s been a surge in claims. Within a few months, another key court case will decide whether developers can buy land from longtime owners and then file claims to make regulations disappear.
Oregon property-rights advocates say Measure 37 will work out fine, rolling back a heavy-handed, inflexible land-use system. "We’ve had a centralized planning system for so long, it created a lot of animosity in people," said Dave Hunnicutt, president of the state’s leading property-rights group, Oregonians in Action (HCN, 11/25/02: Planning's poster child grows up). In the TV ads that helped persuade 61 percent of the voters to approve Measure 37, Oregonians in Action highlighted a woman who’d been fined $15,000 by the city of Portland for cutting weedlike blackberry bushes in her backyard; the city had designated it an "environmental zone" and charged that she’d cut native plants intermingled with the blackberries, Hunnicutt says. Another ad featured a couple who wanted to build a house on rural acreage; they would have been allowed to occupy it only half the year, because it was designated winter habitat for elk, he says.
But now that Measure 37 is taking effect, many Oregonians — including thousands of neighbors who have written official comment letters on the claims — say the new law is a disaster. "It creates indecision and unpredictability for everybody in the state — whether you’re a homeowner, a business(person), a farmer, or an urban dweller, you no longer have a clue what’s going to happen next door, because now there is a free pass to violate laws," said Elon Hasson, a lobbyist for the state’s leading pro-planning group, 1000 Friends of Oregon.
The most poignant stories come from people who voted for Measure 37, and now see negative impacts on their own neighborhoods and property values. "I voted for the measure because I believe in property rights," Rose Straher, who lives in tiny Brookings on the southern Oregon coast, told me. The owner of a nearby 10-acre lily farm filed a Measure 37 claim to turn it into a 40-space mobile-home park, and got the Curry County government to waive its regulations. Straher and 46 other neighbors signed a petition opposing it. Measure 37 "has absolutely no protection for the neighborhood," Straher told me. "You’re giving superior rights to one particular owner. That is a big flaw."
The initiatives on state ballots this year vary in their specifics, but like Measure 37, they have no language explaining where governments would get money to pay property owners for the impacts of regulations. They are intended not to make regulations workable, but to prevent them entirely.
They would all be more sweeping than Measure 37 in this sense: The new initiatives would apply to all landowners facing new regulations passed by state and local governments. The one in Washington would be retroactive, covering regulations passed since 1995. They all exempt regulations that directly protect health and safety, such as limits on sewage discharges, but those regulations rarely stand in the way of development. Moreover, compared to Oregon, most of the targeted states have immature land-use regulations. All their land-use planning would essentially be frozen, with no chance of evolving in the future, even as the states are hit with population booms. Rapidly growing communities from Boise to Tucson, now inching toward meaningful land-use regulations, would be stopped in their tracks.
A look around Gallatin County, home of Three Forks and Bozeman, made it clear how the Montana initiative would derail land-use planning. It’s Montana’s fastest-growing county, with a population shooting above 75,000. The county commissioners (one Democrat and two Republicans, including a rancher) have launched an effort to begin countywide zoning to address chaotic sprawl, increased traffic congestion, strain on all government services, worsening air pollution, and disappearing open space. If the takings initiative succeeds, it will kill that effort; the county would not be able to pass or enforce any new regulations. Also, there would be no more grassroots efforts to create small zoning districts, as the residents of Bozeman Pass just did, to hold off coalbed methane drillers — not unless the residents could get every property owner within each district to agree to every regulation.