WHEN 'THE LAW OF THE LAND' HURTS OWNERS OF THE LAND

Date: Saturday, October 29, 2005

Oregon has uniquely restrictive statewide land-use law, and editorial writers from other states who may one day be expected to have opinions on whether this is a Good Thing are interested in learning more about how it has worked in practice. So the organizers of the program for the National Conference of Editorial Writers' annual meeting, held in Portland in September, arranged a panel called "Property Rights in Sprawl-free Oregon."

It was timely. Many Oregonians, especially those who live in cities and enjoy unspoiled rural views, like the laws just fine. Other Oregonians, especially those who own those unspoiled acres and can't use them for anything, think they've been cheated.

Last fall, enough people in the second group enlisted enough people in the first group to pass a property-rights initiative. Measure 37, which got 61 percent of the vote, gave people who owned property before the land-use restrictions were enacted the right either to a waiver of the restrictions or compensation for the diminished value of their land.

Lacking money to pay compensation, and facing strict deadlines, most local jurisdictions began issuing waivers. But it was a muddle. If a property owner obtained a waiver, and then sold his land for development, could the new owner claim the waiver too? (Probably not, said the state attorney general's office, but counties have adopted conflicting policies.) And if matters weren't confused enough already, on Oct. 14 a county circuit court judge said that Measure 37 was unconstitutional, because it favored one class of property owners over another, and also because it limited the legislature's prerogatives to enforce health and safety rules.

That decision will be appealed -- state officials are obligated to defend initiatives -- but in the meantime, thousands of waiver applications and hundreds of waivers already granted are left hanging.

Lane Shetterly, director of the State Land Conservation and Development Commission, led off the panel with a nuts-and-bolts explanation of what the commission does to implement the 19 statewide planning goals, which are aimed at preserving "farm and forest" uses for what planners call "resource lands," and at focusing urban development within urban boundaries.

There is nothing intrinsically wrong with those goals; the injustice is that the entire financial burden falls on the people who own those "resource lands" at the time when a majority decides they should be preserved for uses the majority prefers. Those laws favor later owners, who buy the property at artificially depressed prices, so they can enjoy the views at their neighbors' expense. Why isn't that unconstitutional?

You may gather that I believe it ought to be. But at present, it isn't, unless legal restrictions are so onerous that the property owner loses everything.

The other panelists were Bob Stacey, executive director of the activist group 1000 Friends of Oregon, which campaigned against Measure 37, and Dave Hunnicutt, executive director of Oregonians in Action, which worked to put it on the ballot and pass it.

You could tell these two have been on a lot of panels together and they don't like each other very much.

Stacey said the "No" campaign underestimated the measure's appeal to fairness and people's perception that government actions are often arbitrary. "They believe the 'takings clause' should be reinforced," he said, referring to the Fifth Amendment requirement that property owners should be compensated if the government takes their land, "and they thought that's what they were doing."

Hunnicutt pointed out that only about 2 percent of Oregon land is inside urban growth boundaries and zones for development, and more than half of 62 million acres under restrictions are publicly owned anyway. Of 26 million privately owned acres, 25 million are zoned for "farm or forest" whether or not they are suitable for those uses -- most, he said, are not. He estimated that at most 40,000 acres a year might become available for development under Measure 37 that could not be developed without it, hardly enough to justify what he described as the "world will end" rhetoric of the "No" campaign.

Stacey had his own view of the "Yes" campaign's ads, which talked about a property owner who faced thousands of dollars in fines for removing ivy from her back yard. "She used a backhoe!" he said. "Along a creek!"

The legislature spent months trying to sort matters out, without success, and now there will be months or years of court proceedings which, predictably, will leave as many people outraged as satisfied.

People who bought land in the good-faith belief that they could develop it are opposed to people who bought land in the good faith belief that development was permanently restricted. They can't both be made whole.

After the court ruling, Stacey told The Oregonian newpaper, "Some property owners got hurt when land-use rules were created," he said.

"Let's measure that injury and find a way to compensate. But let's not spread unfairness to more property owners."

Well, at least he now admits there was an injury. That's a start.