Chapter 3.16

Oregon Learns a Hard Lesson
(Plantizen, December 8, 2000)

By Richard H. Carson

On November 7, 2000 the voters of Oregon passed Ballot Measure 7 by a margin of 53 percent. The measure amends the Oregon Constitution and requires state and local governments to pay full compensation to a property owner, if a law or regulation reduces any of the property's value.

Within days of the passage of Measure 7 -- the so-called "takings" measure -- the Oregon planning community began rationalizing its passage and bemoaning the end of statewide and local land use planning. Even the state's governor declared that "it would destroy our quality of life, the very soul of our state"

The planners could not believe that the property rights activists and developers had so easily hoodwinked Oregon's voters. It was even more humiliating because Oregon is often touted as a national model of progressive state-mandated land use planning. What you could not find within this painful lament was any culpability -- which was exactly the reason it passed. No planner was willing to admit that they helped pass it. Why did it pass? People were tired of heavy-handed government planners.

- Days before the election, the Bonneville Power Administration (BPA) was caught by the media trying to throw a family out of their house because the BPA owned an easement under their house. They offered the people $5,000 for their property.

- For the last year and a half the voters have listened to the ongoing saga of the Bea house. In this case, the Columbia River Gorge Commission (another federally mandated agency) has been trying to force the Bea family to remove their new house because it was visible to tourists in the Columbia Gorge.

- And finally, there is the case of Dolan v. City of Tigard. We conveniently try to forget that this landmark U.S. Supreme Court case originated in Oregon. The case was about a city government demanding land for a bicycle path when a plumbing storeowner asked for a building permit. The legal precedent of "rough proportionality" resulted from this case. It was too much of a stretch to believe someone would ride a bike to the store and take home a toilet or a water heater.

The truth is that we have been living on borrowed time for years. Ballot measure 7 didn't pass because the property rights groups were so clever. It passed because of the collective arrogance and irresponsibility of the planning profession. We must ask ourselves, "How many more Supreme Court cases and ballot measures will we endure before we learn some basic lessons about fairness and economics?" Will we kill statewide land use planning nationally because we don't understand such basic concepts locally? Statewide land use planning -- as practiced in Oregon, Washington and Florida -- will have a hard time taking root in any other state with such a law. The requisite mass downzoning and devaluation of rural land would could the taxpayers billions of dollars.

The lessons of Measure 7 are that:

1. Land is a commodity, and
2. Land use planning is about land economics.

There has always been a mental disconnect between the planners' belief that they are providing citizens a better quality-of-life and the reality that it might cost someone something.

If we learn these simple economic lessons, then Oregon could once again demonstrate public policy leadership nationally. In a free market economy people should not "take" value from a property owner unfairly - and neither should they "give" it away freely. We should pay the property owner for the diminished value of his or her property. In turn, they should pay fair compensation to the citizens of the state for any value added by such purely legislative acts such as upzoning or annexation. It has been estimated that the act of annexation alone, which is urbanizing land by bringing it into an urban growth boundary and city limits, multiplies the land's value by nine-fold. If we have to pay for down zoning property as a "takings," then the developers or property owner should pay for up zoning. In reality, the latter is a "givings."

We have to quit jerking property owners around. That is the message of Measure 7. We have been excessive and unfair on occasion. We need to have a little more empathy for people. We need to listen to them. Government needs to pay them when it's fair and they need pay government when it's fair. In the land of unintended consequences the property rights advocates may have done something akin to the ancient alchemists turning lead into gold. They will have turned planners into economists.

Richard H. Carson is an elected member of the American Planning Association (APA), a planner director and a free lance journalist. He also is the webmaster for the New Planning Meridian website and maintains APA's Internet Planning Journalist website.

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Common Sense
by Richard H. Carson