Property-Rights Victory in Oregon

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In 2004 Oregon voters approved Measure 37, a law requiring the government to compensate property owners for regulatory takings—or, if it would prefer not to pay, to waive the costly rules altogether. The authorities have been trying to get the law declared invalid, but it looks like they've run out of luck: The state Supreme Court has just upheld the measure. You can read the ruling here.

NEXT: Thin Red Lines

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  1. Cue the halleleujah chorus.

  2. Land-use regulation in Oregon is about as wacky as it gets. The statewide system was sold to the public back in the ’70s as a way of protecting farmland, but it’s mostly small farmers who have been victimized by the no-growth types who have consistently been appointed to the state regulatory board that oversees land-use decisions. This article talks about farmer subdividing their land to create housing developments, but that is mostly true of the economically unfeasible ‘hobby’ farms that lay close to the cities in Oregon. Further out, the acreage-size regulations are absurd. They are based both on the size of the farm and the amount of revenue it generates, in order for a dwelling to be permitted. That might work on a large farm in the fertile Willamette Valley, but in the arrid eastern and southern parts of the state the regulations often mean that humongous tracts of land are locked up because there they are required by the state to be zoned as “agricultural” land but can’t produce much of anything. The owners are left holding nothing and until Measure 37 had little recourse.

  3. Sprawl by Robert Bruegmann has a good section about the regulations and anti-sprawl initiatives in Oregon. The book isn’t perfect, but it certianly gives a good background of where these sort of regulations come from and how the result is not often quite what was intended.

  4. What does this law do to ordinary zoning laws? Stuff like – no factory next to the school, or in the middle of a residential area? In principle zoning laws are just such a taking, I would think. Yet they aren’t all that controvertial, despite what some libertarian might say about it.

  5. …it looks like they’ve run out of luck: The state Supreme Court has just upheld the measure…

    Until the Supreme Court Kelos it.

  6. Some folks are going to be surprised when the Oregon voters reinstate zoning.

    Taken literally, the Oregon law can only ratchet up development intensity…any restriction, so far as I understand it, such as decreasing allowable heights from 4 stories to 3 would be a taking.

    What a yuck! Come back in 5 years and we’ll have the same basic laws in place.Maybe they’ll be simpler and fairer and that is to the good. But if you think that the majority of citizens perceive that they benefit from a wild-west land use system then I have a wetland to sell you.

    Btw, laugh if you like but Oregon is a better-looking state than neighboring Washington and a lot of it has to do with its land-use laws.

  7. Penguin, unless there’s a federal or Constitutional issue involved, the state supreme court is the last stop.

  8. Eryk, this is from the ‘trying’ link in the article:

    Because the issues include a due process claim, the case could eventually wind up before the U.S. Supreme Court. MacPherson v. Department of Administrative Services, No. 5C10444 (Oct. 14).

    I sincerely hope they don’t review it.

    Btw, laugh if you like but Oregon is a better-looking state than neighboring Washington and a lot of it has to do with its land-use laws.

    I don’t doubt it. I also don’t doubt that Singapore is a much cleaner and prettier city than most US cities, as there is no vandalism or tagging to speak of.

  9. But if you think that the majority of citizens perceive that they benefit from a wild-west land use system then I have a wetland to sell you.

    Since when is requiring the state to pay for its actions “wild-west.”

    Taken literally, the Oregon law can only ratchet up development intensity

    And this is bad how, exactly?

    More development means a larger housing stock, which in turn means cheaper housing. Or, it may mean more commercial development, which means more jobs.

  10. >But if you think that the majority of citizens perceive that they benefit
    >from a wild-west land use system then I have a wetland to sell you.

    Why don’t we ask the residents of Houston that question?

  11. I should have included this from the ABA article:

    The public referendum (the one giving property rights back to the people who actually own it) is an example of true democracy – the people creating a law through a vote of common citizens.

    But when a law created by referendum restricts the power of the legislature to act, an Oregon trial court ruled, it puts an unconstitutional limit on the people’s representatives. (my emphasis)

    The ruling, by Marion County Circuit Judge Mary Mertens James, sets the stage for a battle up the appellate ladder over whether referenda can restrict legislative authority.

    I’m having a Richard III moment right now.

  12. If Oregon looks better than Washington it might be from having a population that is less than the Seattle Metropolitan area to inhabit the whole state which is in fact considerably larger than Washington.

    Despite the superficial resemblances (i.e west side wet, east side dry, and mountains running down the middle), the cultural and political differences are emormous.

  13. I live in Washington and have travelled throughout pretty much all of Washington and Oregon. Both states are in the top 10 in scenary, but Washington is, overall, a much prettier state.

    There is nothing in Oregon to compare to the Olympic Pennisula, Mt. Hood is a crappy imation of Mt. Rainier, compare the Northern Cascades to the centeral cascade mountains… there really is no comparison. Also, Seattle is about 10 million times prettier than Portland.

  14. This is going to last about ten minutes.

    Oh, we didn’t mean it like THAT.

    Still, shaking things up and starting over isn’t the worst thing in the world.

  15. Lemur,
    Yeah – but we got better bud, beer and strippers in Oregon (we also don’t have as many pricks as you).

  16. Oh yeah – and we can kill ourselves!

  17. I find Portland to be far more atractive than Seattle.

    Also,”But when a law created by referendum restricts the power of the legislature to act, an Oregon trial court ruled, it puts an unconstitutional limit on the people’s representatives. (my emphasis)”

    If the people can’t restrict the power of the legislature via referendum, then how are we supposed to do it? Beg them to restrict themselves?

  18. joe,

    You just stay in denial. It suits a technocrat like yourself.

    wsdave,

    If the people can’t restrict the power of the legislature via referendum, then how are we supposed to do it? Beg them to restrict themselves?

    Apparently the judge has never read Marbury v. Madison and its description of what constitutions are all about.

  19. What does this law do to ordinary zoning laws? Stuff like – no factory next to the school, or in the middle of a residential area? In principle zoning laws are just such a taking, I would think. Yet they aren’t all that controvertial, despite what some libertarian might say about it.

    It doesn’t really do that much to ordinary zoning issues. Most broad zoning restrictions aren’t that controversial–things such as ‘no factories next to schools or homes’. For individual landowners (rather than developers), the biggest problems are typically with “conditional uses” (uses that are permitted in a zone, but only with some type of regulatory approval), or with subdividing large lots into smaller ones to permit second or third homes on the lot.

    Oregon complicates the issue because it has a statewide planning system that mandates what cities/counties must do in their comprehensive plans and zoning ordinances. Especially in rural communities, the state bureaucrats often force stuff on municipalities that no one living there actually wants. It also adds an additional statewide layer of regulatory crapola to the normal land-use approval process. The urban-rural divide on these statewide issues in Oregon (urban-based bureaucrats basically lording it over rural landowners) is what has largely led to the Oregon property rights movement, which is the most vigorous in the country.

    Another big problem in Oregon is with what are known in the biz as “regulatory exactions.” These involve local governments basically committing extortion against property owners who seek to get some kind of regulatory approval (building permit, conditional use permit) to upgrade their property. The city withholds approval for the permit unless the owner is willing to give up other rights to their property (conservation easements, outright donation to the city, etc.). The U.S. Supreme Court set limits on exactions in an Oregon-based case about 10 years ago, but cities there are still finding creative ways to get around it. Measure 37 is largely intended to put a stop to the more abusive of these practices.

  20. >>But if you think that the majority of citizens perceive that they benefit
    >>from a wild-west land use system then I have a wetland to sell you.

    >Why don’t we ask the residents of Houston that question?

    As a resident of Houston who worked in commerical real estate, I can assure you that everyone’s fine with it…

    perticklarly the gummint folks who accept gifts to make sure the system works fer ya…

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