Takings legislation cracks Oregon's green foundation

Rural landowners say government is regulating them to death


For the last three decades, land-use planners in sprawling cities such as Albuquerque and Tucson have looked at Oregon with envy: State land-use codes there have concentrated growth in its cities, leaving the rest of the state relatively undeveloped. Urban areas, including Portland, meet green farmland and evergreen forests uninterrupted by strip malls or subdivisions.

But, according to rural resident Fred Hall, Oregon planners have gone overboard, and "most people are regulated to death." Hall, who moved to Oregon over 50 years ago, lives on 153 acres 20 miles north of Portland. When he bought his property in 1971, Hall could build one house every two acres, but since then regulations have repeatedly shrunk potential construction density, from one house every 39 acres to one house every 160 acres.

"I don't want to build a development, but I want to think that the land I have will grow in value," he says. "The land I own is now worth less than I paid for it. It's unfair."

Last November, Hall was given a chance to vote his frustration. Hall and 53 percent of Oregonians passed Measure 7, a ballot initiative that requires state and county governments to pay landowners if an existing or future state regulation affects the value of their private property. Although it has yet to be implemented, its passage has caused a ruckus. Local governments and greens fear Measure 7 will impede environmental protection and bankrupt the state. In February, a circuit court found that the measure was unconstitutional, but the decision was appealed, and in mid-May the state Supreme Court agreed to hear the case before it goes to the Court of Appeals. The date is now set for Sept. 10. Whatever the outcome of the suit, planning experts say this battle over private property regulations will reshape Oregon’s land-use laws.

Tangling over takings

Measure 7 is the latest in a long line of ballot initiatives aimed at gutting state planning laws (HCN, 9/5/94: Some state governments try planning from top down). While critics say the measure only passed because of vague language and voter misunderstanding, Larry George of Oregonians in Action disagrees.

"People are sick and tired of the arrogance of planners coming in and telling them how to live," says George, whose group sponsored the initiative.

According to George, support for the measure is widespread. In Oregon, the number of signatures required to place on the ballot an initiative proposing a constitutional amendment is 8 percent of the number who voted in the last gubernatorial election - currently 89,048. Two months before the deadline, Measure 7 proponents had collected 140,000 signatures.

"Oregon planners have set up a system that is fundamentally unfair for the small property-owner, but they refuse to acknowledge that," says George. At the heart of the system lie "urban growth boundaries" which concentrate development in cities. Beyond these areas, most land is zoned as either farmland or forestland. In order to build a home on land zoned for farming, a landowner must prove that he has grossed nearly $100,000 in farm products for two years in a row. The regulation is designed to protect farmland from development by nonfarmers, but George, who grew up on a farm, says it has forced many of his neighbors to sell small parcels of land to big corporate farms.

"How many organic farmers make $100,000? That means they have to commute to the farm," says George. "I find that to be an asinine position."

Art Schlack, of Association of Oregon Counties, agrees that the current system could be improved, but he says Measure 7 is the wrong way to proceed.

"Measure 7 includes all state regulations - that means a city that has adopted a smoking ban or earthquake protection measures might have to compensate someone in some way," says Schlack, a lobbyist for the county governments. "When you get the attorneys to take up this thing, they will take it to the far-flung corners." Schlack worries that since county governments would be responsible for handling all claims, they would either go bankrupt or be forced to pull funding for social service and police forces.

Some Oregonians agree that Measure 7 as it currently reads is too far-reaching. Even proponents want the law clarified to simply target land-use laws, but that's exactly what concerns planning advocates.

Jeremy Wright, director of the Oregon Community Protection Coalition, an alliance of 30 environmental groups formed in an effort to mitigate the impacts of Measure 7, says that when the state has to compensate for land-use laws, local governments will stop implementing regulations. "Our biggest fear is the slow erosion of the livability of Oregon," says Wright.

Though planning advocates may win in the Supreme Court this time, they know the battle will be far from over. "We lost the election, and history shows that voters don't like to be told they made a mistake," says Randy Tucker of 1000 Friends of Oregon.

Private-property rights activists have already vowed to rewrite the initiative and take it to the ballot again in 2002. To avoid another showdown, both sides have turned to the state Legislature for help in finding a middle ground.

"A cloud over the system"

For the last few months, Rep. Max Williams, R-Tigard, has gathered testimony from all sides in order to write legislation that, with voter approval in November, would replace Measure 7.

"My goal is to get the parties to agree that there's a moderate solution that can keep Oregon's land-use laws while sending a message to government that we can't indiscriminately regulate without compensation," says Williams. "I'm trying to avoid what I think will be a cloud over the system for the next decade."

In mid-May, Williams released a 20-page rough draft of the proposed bill. The legislation would provide limited compensation for state land-use regulations (federal regulations that affect property value, such as the Endangered Species Act, are not included). Landowners whose property value has decreased by 25 percent or more as a result of state land-use regulations could be eligible for compensation for up to 50 percent of the reduction.

Williams' legislation does not address how the state will fund compensation, which could easily cost hundreds of millions of dollars. But planning advocates see the bill as their best chance at preserving Oregon's land-use laws.

"We aren't opposed to building more fairness into the system, but we have a pretty good system here," says Tucker of 1000 Friends of Oregon. "With a legislative package, we wouldn't be rolling back the law; we'd just be compensating some people."

But time is running short. The Senate could recess by the end of June, and if Williams' legislation isn't enacted, most politicos expect a war of ballot initiatives in the 2002 election, no matter what the Supreme Court rules.

Carl Abbott, an urban planning professor at Portland State University, says the Measure 7 fight may eventually force planners to tailor regulations to different regions of the state.

"We'll be looking at things like, should the goals and expectations for eastern Oregon be different than for the Willamette Valley," says Abbott. "But I don't think urban growth boundaries are going anywhere; land-use planning isn’t going to fade away."

The writer is HCN's assistant editor.


  • 1000 Friends of Oregon, www.friends.org, 503/497-1000;
  • Oregonians in Action, www.oia.org, 503/620-0258;
  • Congressman Max Williams, 503/986-1409.
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