The Perfect Storm
By Jim Huffman
There are some things we Oregonians, or at least the Oregonian and others who claim to speak
for us, simply will not take lying down. One of them is Measure 37. Never mind that the measure
passed with 61 percent of the vote. Never mind that the Oregon Supreme Court ruled
unanimously that the measure is constitutional. The Oregonian and 1000 Friends of Oregon,
didnít like it when it was on the ballot, donít like it now, and never will like it.
So whatís the problem with Measure 37? According to its never-say-die detractors it will result
in the dismantling of 35 years of planning under Senate Bill 100 and the destruction of Oregon as
we have come to know and love it.
The latest broadside from the Oregonian editorial board includes a half-page map of Washington
County covered with red flags of worry (March 11, 2007). The point seems to be that
Washington County will be transformed beyond recognition by Measure 37 claimants. As if
Washington County has not already been transformed beyond recognition since the enactment of
Senate Bill 100. The reality is that the impacts of Measure 37 will be mostly indistinguishable
from the rampant growth in the county over the last four decades.
Of course if we really want to put all that growth to a stop, Measure 37 provides the solution:
Pay Measure 37 claimants rather than waive the regulations. Oh, sorry. I forget ó we canít
afford it. Better to maintain a barrage of anti-Measure 37 news and commentary. If you say the
sky is falling often enough, even some people who voted for Measure 37 will come over to the
side of Chicken Little.
So the Legislature is scrambling for a fix before the sky falls, but what is the evidence that the
sky is falling?
While Measure 37ís antagonists lobby the Legislature and fan the flames of hysteria over the
Californication (or is it now the Coloradization?) of Oregon, reflective and fair-minded
Oregonians might ponder these few basic questions.
Is a moratorium on Measure 37 claims justified? Perhaps, but letís call it an extension of the
deadline for processing Measure 37 claims. Moratoriums too often become permanent, like
temporary structures still standing decades later. If the last minute filings make it impossible for
cities and counties to properly process claims, give them a six-month extension (with interest to
compensated property owners). But donít use a moratorium as cover for gutting the voter-
approved measure. If the Legislature wants to overturn the will of 61 percent of the voters, do it
straight up and let the political chips fall where they may.
Are there legal uncertainties in the implementation of Measure 37? Yes, but what law does not
leave the courts with something to do? If unanswered legal questions condemn a law to the
dustbin, not much of what the Legislature does can be saved.
Does Measure 37 threaten Oregon agriculture? To the contrary, it protects both the value in
agricultural land and the ability of farmers to farm without interference from urban neighbors. It
has been objected that development on rural lands pursuant to Measure 37 waivers will bring
urbanites with their city preferences to farm country. But absent regulations to limit the sounds
and smells of farming, the rural urbanites will just have to deal with it. If new neighbors manage
to get new regulations adopted, and such regulations are found to be exempt from Measure 37 as
controls on traditional nuisances, farmers will still be protected by Oregonís right to farm law
that provides, ď[n]o farming or forest practice on lands zoned for farm or forest use shall give
rise to any private right of action or claim for relief based on nuisance or trespass.Ē
Will Measure 37 claims require more public infrastructure? Perhaps, but only if the remedy is
waiver of existing regulations, and in that case Measure 37 claimants will receive only the same
public benefits granted to every other Oregonian whose property rights are recognized and
protected by the state.
Have farmers already been compensated for the impacts of exclusive farm use regulation through
property tax relief as asserted in a study by the American Land Institute (aka 1000 Friends of
Oregon)? Absolutely not. Farmland assessment laws only assure that farmers will not be taxed as
if their land has value for urban development. And if the laws forbidding such development are
changed, or waived under Measure 37, farmers choosing to develop their lands will be liable for
Is waiver of regulations the only practical option under Measure 37? Certainly not. Measure 37
explicitly, and firstly, provides for compensation as the remedy for a valid claim. Waiver of
offending regulations is a second option. But compensation is a subject nobody, save perhaps the
governor, wants to talk about. Itís the elephant in the room. We canít afford it, says every
government official. End of story.
But we can afford it, if it is really important to us. State and local government expenditures in
Oregon exceed $24 billion annually. If the preservation of agricultural and resource lands is a
high priority, could we spare a bit of that? The fact of the matter is that we donít want to talk
about compensation because we know that, thanks to the powers of government, we can have the
benefits of land use regulation for nothing. But it is not for nothing; it is a question of who pays.
Why did Oregonians vote for Measure 37? When the Measure 37 case was argued in the Oregon
Supreme Court, Justice Gillette said the case had nothing to do with fairness. In a strictly legal
sense he was right, but not in any way that makes sense to voters. Measure 37, like Measure 7
before it, was passed by a significant majority of voters in a state that has repeatedly voted by
similar majorities to maintain the nationís most ambitious statewide land use planning system.
Does that mean Oregon voters are confused or schizophrenic? No, it means they believe that as
government does what it does, it must treat its citizens fairly. If Oregonians benefit from urban
growth boundaries and the preservation of agricultural lands, they ó not individual property
owners who happen to be in the way ó should pay the costs. In adopting Measure 37, Oregon
voters understood intuitively, in the words of Justice Hugo Black, that it is unfair to force some
people alone to bear public burdens which, in all fairness and justice, should be borne by the
public as a whole.
It is the rare public decision in which principle rises above partisan, interest group politics (what
economists call rent seeking). But Measure 37 was a bit like the perfect storm. An innate sense
of fairness combined with government overreaching yielded a fair and sensible solution.
Government can regulate land use and respect property rights at the same time, simply by having
the beneficiaries of that regulation, the taxpayers, foot the bill.
But the perfect storm has passed. Special interests are counting up their gains and losses while
individual voters are getting nervous about what might happen on their neighborís property. And
the Legislature is in session. Property rights are again at risk.
BrainstormNW - April 2007