Chapter 3.17

Washington's Initiative 933 is the Son of Oregon's Measure 37
(Northwest Planning, May 2006)

By Richard H. Carson

The Washington Farm Bureau recently filed a request with the Secretary of State to collect petition signatures to put Initiative 933, euphemistically called the “Property Fairness Initiative,” on the state ballot. Initiative 933 is modeled after Oregon’s Measure 37, which is one of the most extreme property compensation laws in the nation. It can be argued that Oregon’s Measure 37 will be the demise of the oldest state planning program in America.

In the early 1970s the state of Oregon legislated state-mandated land use planning. It was touted as cutting edge public policy and hailed by some as a “grand experiment in land use planning.” In 1973, a bipartisan Oregon legislature and a progressive Republican governor named Tom MacCall approved the first statewide land use planning program in the nation. The program touted the use of mandated comprehensive plans and urban growth boundaries, all in the name of saving farms and forests. For over a quarter of a century, Oregon has received a lot of national media attention for this grand experiment in land use planning.

On November 2, 2004, the vaunted planning program was permanently crippled and politically rejected by the very citizens it purported to serve with the passage of ballot measure 37. After 30 years, and by a decisive 61 percent to 39 percent margin, the voters essentially terminated the grand experiment by passing the most draconian property compensation law in America.

The state’s newspaper, The Oregonian, reported that on the first day the law went into effect, citizens came in to file claims for such developments as a coastal subdivision with 400 one-acre lots, a farmland subdivision consisting of 350 two-acre lots, a plan for a rural subdivision with a gambling casino, as well as numerous small rural subdivisions. It also claimed that planners are “expecting proposals to build large retail centers or destination resorts on farmland that’s been in the same families for generations.”

The Fifth Amendment to the Constitution guards a private landowner from the government “taking” of his or her property without compensation and the case law on compensation for government takings has been widely accepted for over 70 years. The United States Supreme Court cases have ruled that land use regulations had to be so restrictive as to rob the landowner of his or her land’s economic vitality. In other words, the government had to compensate for taking all the land’s value, but need not compensate for “partial” takings.

Oregon ballot measure 37 is a major historical precedent because local governments must now pay for “partial” takings. The ballot measure’s language is both as clear as it is devastating. The measure simply says that, “If a property owner proves that a land use regulation restricts the use of the owner’s property, and reduces its value then the government responsible for the regulation will have a choice: pay the owner of the property an amount equal to the reduction in value or modify, change or not apply the regulation to the owner’s property.” The primary caveat to this is that the regulations in question must have been those in effect when the person bought their property.

Ballot measure 37 has planted the seeds of discontent nationally. Just as the 1978 Proposition 13 tax limitation movement spread from California to the nation and just as the 1994 “Contract With America” made term limits the rage nationally, ballot measure 37 will gain national political attention. Sadly, the legacy of the Oregon planning experiment will not be leading America into the planning of the 21st century. It will be the unraveling of the planning gains made by others in the 20th century.

But will the same thing happen here in Washington that happened in Oregon? Washington’s state-mandated program is more decentralized than Oregon’s. We have three hearing board that are more localized. Oregon has one central court in the state capitol. Washington’s Department of Community, Trade and Economic Development is more of an “encouragement” agency and not a strong “enforcement” agency like Oregon’s Land Development Commission. The Oregon system was devised to be very litigious than Washington’s.

In Washington land use planning is much more pragmatic way. All in all, I don’t believe the Washington voters will send as strong a message as was heard in Oregon. Will it pass? Only time will tell.

Richard Carson, Community Development Director, Clark County

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Common Sense
by Richard H. Carson