Planning: Lost on the Oregon Trail

Vacationing in Oregon seven years ago, Tom and Doris Dodd were captivated by the state's lush, mountainous scenery and misty, moderate climate—characteristics refreshingly unfamiliar to the longtime residents of Houston. With an eye toward Tom's retirement, which was only a year away, and dreams of a home nestled amid the tall Douglas firs, the Dodds were soon signing papers to purchase a vacant piece of rural property near the Columbia River in northern Oregon.

Though the county's 40-acre minimum parcel size meant the couple had to pay more than they had wished—about $50,000—Tom Dodd says they thought "it was worth the scrounging and scraping to come up with the money." Their opinion of the property took a different turn, however, when in 1988 they went to the local planning department to apply for a building permit.

The Dodds were told that, unknown to them, the land had been rezoned two years after they had bought it and that the new commercial timber classification prohibited cozy retirement cabins as "incompatible." Recalling his disbelief in response to a suggestion by the county planning director that he commute to his property to grow trees, Dodd sadly concludes, "I have invested my life savings in a place to have a picnic."

Tom and Doris Dodd are two of the latest victims of Oregon's 17-year experiment with statewide comprehensive land-use planning. Residents of other states considering a jump onto the "growth management" bandwagon—Maine, Vermont, Rhode Island, Delaware, Florida, Massachusetts, and New Jersey have recently enacted such rules and many other states are considering them—would do well to heed the painful lessons learned by their fellow countrymen to the west.

In essence, the Oregon system gives the unelected, seven-member Land Conservation and Development Commission (LCDC) almost unlimited authority to ensure that future development is confined within "urban growth boundaries," leaving scenic rural areas in a pristine state. Guided by a set of very vague and general "planning goals" (popular phrases include "open space," "scenic areas," and "healthy and visually attractive environments in harmony with the natural landscape character"), the LCDC uses a variety of enforcement tools, including building moratoriums and the withholding of state revenue, to coerce obedience from local jurisdictions.

There is a broadening consensus among both supporters and opponents of the land-use planning laws that they are not working. Strong criticism has been voiced not only by property owners and local officials but also by the state attorney general and numerous state legislators.

The strongest denunciation of the program has come from Lane County Commissioner Bill Rogers, a former state legislator, 1989 president of the Oregon Association of Counties, and a consistent supporter of the state's planning laws. In a packed public hearing, Rogers told LCDC members to "get yourself another patsy.…I have preached to my fellow commissioners of Oregon a course of moderation for the last time. No longer will I advise patience to let the administrative process work."

Rogers was reacting to the LCDC's planned adoption of even tighter restrictions on rural lands despite overwhelming statewide opposition to the proposal. Such indifference to public input illustrates a characteristic common to land-use planning systems of this kind. While officials say citizen involvement is a high priority, in reality the average resident is discouraged from participating by the complexity of the system, the time required, and the feeling that his involvement counts for little.

Property owners in sparsely populated Curry County suffered for two years under a total building moratorium after the state became impatient with local officials' reluctance to downzone thousands of acres. State planners justified the more restrictive classifications as necessary to protect valuable agricultural lands. Yet 94 percent of the county consisted of federal or corporate timber lands, and the only cash crops were cranberries and Easter lilies.

Although farmland protection is one of the primary objectives of the Oregon laws, a 1986 analysis in The American Planning Association Journal concluded that the system has not served this goal. The study compared trends in farmland acreage in Oregon with those in the neighboring state of Washington, an area quite similar in climate, size, population pressures, and the importance of agriculture to the economy, but with no statewide farmland protection strategy. The conclusion: "On a statewide basis, the Oregon farmland preservation program cannot claim to be more effective than Washington's approach."

Indeed, some experts believe the regulations may actually be hurting farmers. Resource economist Richard Stroup has questioned whether, given the rapidly changing trends and technologies in agriculture, Oregon's land-use restrictions will allow the necessary flexibility for new and unusual configurations of storage and processing facilities. Stroup has concluded that limiting possible uses of farm properties may result in a decreased collateral value of the land, impairing the owner's ability to raise capital for improvements, additional equipment, or even long-term financial stability.

Another consequence of the state's planning system is uncertainty. As Tom Dodd learned so onerously, the system's rules and regulations are unstable. There are constant adjustments with each legislative session as political winds change and various interest groups "invest" in lobbying activities to alter the rules in their favor. Originally, city and county comprehensive plans were supposed to be completed and approved by the end of 1975. But because of repeated modifications of the rules and regulations, it took more than a decade longer. The last jurisdiction did not get final approval until July 1986.

The uncertainty continues. Throughout 1988 and 1989, as the LCDC considered set after revised set of proposed restrictions, rural property owners were unable to determine for themselves or for potential buyers what uses, if any, would be allowed on their land.

The unpredictability is largely due to the legal morass that inevitably develops in such all-encompassing regulatory systems. Attorney General Dave Frohnmayer has observed in an oft-quoted speech that the system is "too legalized": The laws' "arcane and mystic language" make the process "accessible only to the likes of the 1000 Friends of Oregon [an environmental law group], Department of Justice attorneys, the appellate courts, and a few brave officials of local government and the LCDC." Much to the dismay of property owners as well as government bureaucrats, the dominant player in Oregon's planning system is the judiciary.

The innocuous-sounding concept of citizen involvement encourages those few residents who do participate to believe that they have as much right to say what their neighbor may do with his property as he does himself. This busybody philosophy fosters litigiousness.

The status-quo mentality that prevails during formulation of comprehensive plans is also apparent when a property owner wishes to alter the use of his land, especially if the land is vacant. People may get used to the convenience of having a vacant lot next door to dump yard clippings in, as a place for the kids to play, or simply as a buffer from neighbors. If government provides a method for residents to use such an amenity at a cost far lower than the purchase price, people will certainly take advantage of it.

The neighbors of Joseph Van Haverbeke used every tool the system provided to block his application to develop a mobile-home park on a 20.9-acre site in Washington County, even though the applicable zoning ordinances allowed such a use. First filed in 1984, Van Haverbeke's application was approved by the county three times, appealed in state court each time by a citizens' group, and remanded back to the county each time because of various technical deficiencies.

Opponents of the mobile-home park, having exhausted most of their arguments on prior appeals, resorted to the most tenuous of objections, successfully challenging the adequacy of Van Haverbeke's specifications for street lights and landscape sprinklers. Six years later, the suit is still pending.

Historically, people who wished to control the actions of others for their own benefit have been discouraged from doing so by the fear of having such greedy, tyrannical motives publicly recognized. That disincentive does not exist, however, under a broad government program that not only allows but encourages citizens to second-guess the personal decisions of others while wrapping themselves in the mantle of altruistic-sounding goals such as the preservation of farms, open space, and wildlife habitats.

In a 1981 U.S. Supreme Court decision concerning a California zoning dispute, Justice William Brennan asked in his dissenting opinion, "After all, if a policeman must know the Constitution, then why not a planner?" With Brennan's analogy in mind, Oregon attorney Allen Johnson has suggested: "Perhaps government should be as willing to allow an occasional innocent property owner to develop his land as it is to allow the occasional murderer and rapist to go back to the streets. It is difficult to imagine that the social costs would be greater in land use than in the criminal cases, and the potential gain in citizen acceptance and governmental lawfulness would surely outweigh the cost by far."

Kelly Ross is a land-use lobbyist and consultant in Portland, Oregon.