Oregon at a crossroads: where do we go from here?

• Author: MacLaren, Caroline E.K.
• Position: Land use planning

1. INTRODUCTION II. WHY PLAN? III. WHAT THE MEASURE MEANS A. Meaning of the Measure: Provisions, Exceptions, and Ambiguities 1. Determining Restriction on Use 2. Calculating Reduction in Fair Market Value 3. Waiver 4. Exemptions 5. Ambiguities and Other Difficulties B. Implications for Land-use Planning in Oregon: Now and Future Chilling Effects IV. OREGON'S FUTURE A. Addressing Fairness and "Regulatory Takings": Transferable Development Credits 1. How Do TDC programs work? 2. Application to Measure 37 B. Addressing Community Planning: SB 82 and the Task Force on Land-Use Planning 1. First question: Where should the "Big Look" look? 2. Second question: Who should do the looking? 3. The third question: How should we look? 4. Finally, question four.. What should the 'Big Look at V. CONCLUSION "What is the use of a house if you haven't got a tolerable planet to put it on?"

   Henry David Thoreau (1)

1. INTRODUCTION

   With the adoption of Senate Bill 100 in 1973, Oregon became a pioneer in comprehensive land-use planning. Designed to manage population growth, promote economic development, and protect farm and forest lands for resource uses, Oregon's land use planning program has enhanced Oregonians' quality of life. In so doing, we created an Oregon that is more than tolerable; we created an Oregon that has attracted one million people, countless businesses, and the admiration of other states in the last thirty years. (2)

   At the core of Oregon's land-use planning program are its people--of the nineteen goals that guide Oregon's planning objectives, Goal 1 is citizen involvement. Through the actions of individual Oregonians, businesses, and local and state governments, Oregon has achieved remarkable successes. Uncoordinated and leapfrog development has been stopped, providing opportunities to build and strengthen livable communities. Agricultural and forest lands that the rest of the nation has lost to urban and rural sprawl are the base of a growing and sustainable economy for family farmers, ranchers, and timber owners. Access to scenic and natural areas--the beaches, mountains, high desert, and rivers--has been protected.

   Over the past thirty years, land-use planning in Oregon has evolved, but its purpose remains the same: to protect the characteristics that make Oregon unique and a place we want to call home, even as the state continues to grow.

   Measure 37 and the regulatory takings movement threaten to unravel these accomplishments. As of October 1, 2005, some 2,500 claims had been filed with the state and local governments. (3) Twelve hundred of those claims have been filed with the state seeking $2.2 billion in payments, (4) or--in the alternative--the right to build thousands of houses and millions of square feet of commercial development on farm and forest lands to the detriment of those who surround them.

2. WHY PLAN?

   Responsible land-use planning meets the needs of its community by protecting rural lands and improving the built environment within towns and cities. By containing large-scale economic development (other than natural resource-based industries such as agricultural and timber production) within urban growth boundaries and rural development zones, (5) responsible land-use planning can reap the benefits of growth without destroying communities or the countryside. Investments in infrastructure are concentrated, saving taxpayer dollars and increasing livability. (6)

   Land-use planning embraces the creative pragmatism that has attracted people to Oregon since the days of the Oregon Trail. Oregon, like many other states, has natural beauty: the mountains, beach, and high desert. What separates Oregon from other states are the decisions we make to preserve our home. The Beach Bill, Bottle Bill, and Oregon Land-Use Planning Act, are all examples of a deep land ethic and willingness to do things differently for an improved today and a better tomorrow.

   Oregonians recognized early that protecting farm and forest lands was essential to preserving the state's agricultural and timber economies. We also realized that, without planning and reasonable regulation, our cities and towns could follow the path of other American cities and become places of urban blight, rather than livable communities.

   Oregon has achieved much of what it set out to do in 1973: protect farm and forest lands and stop urban sprawl. Over fifteen million acres are protected for agricultural uses, and agriculture remains a growing economy. According to the most recent Natural Resources Inventory (NRI), between 1992 and 1997, Maryland lost 7.5% of its agricultural land base, Pennsylvania 6.5%, California 3.7%, Washington 1.6%, and Idaho 1.4%, compared with barely 1% in Oregon. (7) At Oregon's request, the NRI differentiated between farmland in exclusive farm use zones and farmland within urban growth boundaries and rural zones where development is allowed. That analysis showed that 72% of the farmland converted to urban uses was already within urban growth boundaries and rural development zones. (8)

   Between 1978 and 1992--all years in which the Oregon land-use planning program was in effect--Washington County, Oregon welcomed 40,000 more people than nearby Clark County, Washington. Yet an analysis of U.S. Census of Agriculture data during that period shows that Clark County lost 6,000 more acres of farmland than Washington County. (9) As significant, per farm income in Clark County dropped by ten percent during that period; in Washington County, it increased by thirty-six percent. (10) Today, Oregon agriculture contributes $12 billion to the Oregon economy--second only to high-tech as an industry cluster--amounting to ten percent of Oregon's gross state product. (11)

   Oregon's land-use planning program has controlled sprawl and checkerboard development patterns common to many other urban areas across the United States. Nationwide, between 1982 and 1997, the United States grew in population by seventeen percent, but the amount of urbanized land area grew by 47%. (12) In Minneapolis/St. Paul, the population increased by 25% between 1982 and 1997, but the urbanized land area increased by more than 60%. (13) In the Portland/Vancouver census area, the urbanized land area increased by 49% from 1982 to 1997, but the population increased by 32%. (14) Yet, even while Portland sprawled less than other cities:

   [T]he increase in density--from 3,500 people per square mile to 3,800--was so incremental that it left most Portlanders with about as much elbow room as they had a decade ago. Heavy infill was concentrated in such a small number of areas that nearly 800,000 of the 1.4 million people living in the Portland area in 1990 saw no change in the density of their neighborhoods. (15) Where the national trend showed a loss of office space in central cities, Portland's grew. Between 1979 and 1999, central cities' share of office space within a region shrank from 74% to 58%. (16) Across the largest one hundred metropolitan areas, an average of only 22% of people work within three miles of the city center. (17) But, Portland is among the thirty cities with dense employment (above 25%), (18) and Oregon remains an attractive environment to both businesses and employees. The cost of doing business is low in Oregon (sixteenth lowest in a national ranking), (19) and 40% of new residents cite "quality of life" as a major reason for moving to the state. (20)

   After thirty years of a significant increase in population, much of Oregon has prospered from managed growth while protecting our communities, agricultural and forest land base, and the scenic and natural areas that make Oregon unique. What many say drew them to Oregon in the first place--an hour from the beach, an hour from the mountains--remains true today.

   The passage of Measure 37 represents none of this legacy. What has been Oregon's civic nature to act for the good of the community has been relegated to nothing more than the worst of individualism and selfishness: what's in it for me, not how do I make my community better.

3. WHAT THE MEASURE MEANS

   Set against this backdrop, Measure 37 represents a significant change for Oregon's communities and landscape. Among other aspects, the measure creates a privileged class of landowners, one that enjoys its new rights at their neighbors' expense. (21)

   As many have noted, Measure 37 is the first successful attack on Oregon's land-use planning program. (22) Although Measure 37 does not directly repeal comprehensive planning or zoning, it creates a new system whereby state and local governments must pay if land-use regulations reduce the value of property, or else waive the regulations. (23) Because the measure provides no resources for payment, state and local governments are left with but a single option to waive the very zoning ordinances that protect neighboring land uses from incompatible development. (24)

   1. Meaning of the Measure: Provisions, Exceptions, and Ambiguities

      1. Determining Restriction on Use

         Under Measure 37, a landowner is entitled to payment if a government enacts or enforces a "land use regulation" (25) that restricts the use of property and results in a reduction in fair market value of the property. (26) Thus, as a first step, the claimant must demonstrate that a regulation enacted after the claimant or a "family member" (27) of the claimant acquired the property prevents a use that was permitted at the time the claimant or family member acquired the property. (28) Because the definition of family member includes several generations and corporations, there are hundreds if not thousands of claims in rural areas where the claimant can demonstrate that their grandfather or other family member acquired the land before comprehensive planning and zoning. (29) Claims based on subdividing farm and forest land spread from Wallowa Lake, to the dairies of Tillamook County, to the ranches of Klamath County, to the orchards of the Hood River Valley...