Policy Perspective
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 deferred taxes.

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

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