March 1, 2008
Whose Property Rights?
The clash between private interests and public welfare in Oregon raises a question that has vexed the nation since its founding.
There are places in Hillsboro, Oregon, a suburb west of Portland, where new town houses huddle cheek by jowl on one side of a street, while farm fields stretch into the tree-studded, gently rolling distance on the other. In the normal American scheme of things, the next subdivision might have plowed up the peaceful fields. But that has not been possible at the edge of Hillsboro because such streets mark Portland’s famous urban-growth boundary. Or at least it wasn’t possible for more than 30 years. Then a 2004 referendum, Measure 37, ended farmland immunity from development—handing national property-rights activists a huge political victory and opening the metro edge to leapfrog sprawl.
As planners and designers nationwide are faced with reducing carbon emissions, they float ideas that sound Oregonian. The LEED for Neighborhood Development certification program, for example, may require dramatically increasing density and restricting building on ecologically sensitive open land while promoting the reuse of industrial brownfields and obsolete grey-fields. Oregon had already been a long way toward achieving these goals before Measure 37 weakened the state’s stiff rural-development restrictions. Then a vote last November, little noticed outside the state, sweepingly reversed almost all of the legislation. These whipsawing policies exposed raw but often unexamined emotions about Americans’ relationship to land. Oregon’s property-rights battle serves as a cautionary tale for environmentalists nationwide.
The abrupt transition between rural and urban is pretty much unique to Oregon, and it drives some landowners crazy. After all, land values on the urban side of the growth boundary, where you might be able to build upward of half a dozen houses every acre, may be many times those on the rural side, where often only one house is permitted per 80 acres. To many it seems patently unfair for a government commission to draw a line that has such extraordinary impact on a given parcel’s destiny.
Four years ago this simmering anger found its voice in Dorothy English, a 92-year-old woman who hoped to subdivide some property northwest of Portland so that her grandchildren could live next door. She was tantalizingly near the edge of the growth boundary, but because she fell outside of it, her application was denied. In TV ads she urged support of Measure 37, which would require the state to waive property regulations that caused a loss in value—or else compensate her for that loss. Significantly, the measure was retroactive—taking aim at the growth boundary that had been in place since 1973. Few could resist the hardworking grandmother, who was not, after all, seeking to build a casino in precious wilderness, and Measure 37 passed overwhelmingly.
Though sold on fairness, the legislation substituted one kind of arbitrariness for another. “A lot of land could be developed into two- or five-acre housing tracts—anything allowed prior to 1973,” explained David Vanasche, a farmer whose fields lie just a short distance from Hillsboro’s high-tech office parks. “That will make it very difficult to farm here.” He points out a barely visible furrow that marks the line between his property and the otherwise identical parcel his neighbor farms. While Measure 37 was still in full effect, the neighbor filed a claim asking to be compensated; when he first acquired the property, the rules had permitted a house per acre. But housing and farms don’t mix, Vanasche argues: “We create dust and smells. Fertilizers and pesticides are issues—not that we believe they are a health hazard, but the public tends to.”
As Washington County got pocked with Measure 37 claims, Vanasche feared for the future of farming, even as his business thrived. “The vegetable-processing plants, the dealers for tractors, fertilizers, and pesticides, are all located here in Washington County because there is a large enough land base,” he says. “If you have to travel sixty miles for parts or fertilizer, it just puts more economic stress on the remaining acres.” Even if many acres turn into housing, the area couldn’t go wholly urban either because the rural zoning would remain on those bought after 1973.
Local governments could avoid such balkanized land uses by paying compensation rather than waiving regulations, but as claims accumulated to almost $20 billion, they soon decided waivers were all they could afford. Compensation would have been devilishly difficult to calculate in any event: Over years, what’s the loss worth? How do you separate it from other factors that determine value, like changing farm prices or the volatile ups and downs of the housing market?
Some 7,500 claims have been filed statewide, many for tracts covering almost 800,000 acres. “People didn’t realize that claims on that scale could be made,” observes Bob Stacey, executive director of 1000 Friends of Oregon, an environmental group that led the opposition to Measure 37. “They thought 37 was about a little old lady building a house for her son on her own property.” Nor did everyone understand what undoing regulations freed property owners to do: one claim demanded a waiver to dig a pumice mine that would deface the Newberry National Volcanic Monument.
Faced with the law’s fiscal consequences and vast impact on forests and farmland, the legislature crafted Measure 49 to void claims that had not yet been resolved. It still permits rural landowners to build a few homes. In other words, the new legislation limited claims to offer relief only to the Dorothy English category of owners. Measure 49 passed as overwhelmingly as 37 had.
The goal of the property-rights legislation that has found its way onto ballots in dozens of states is to broaden the reach of the “takings” clause of the U.S. Constitution’s Fifth Amendment. The clause requires “just compensation” when the government takes property for its own use. Property-rights activists have long argued that strict land regulations constitute seizure as surely as outright expropriation for a highway. Though some local courts have been sympathetic, these claims are difficult to prove (the Supreme Court has decided that only regulations that wipe out almost all value demand compensation).
Reducing carbon emissions played little role in the debates over Measures 37 and 49, but the legislation may soon loom large in the sustainability discussion: “Land-use planning plays an important role in reaching the greenhouse-gas-reduction goals the state has set,” notes Eric Stachon, 1000 Friends’ communications director. The goals are aggressive, and the state may not be able to meet them without some equivalent of 1973’s strict controls. However, David Hunnicutt, president of the pro-37 Oregonians in Action, warns, “If enviros push theories that limit private citizens’ ability to control the use of their own property, we’re prepared to counter such arguments.”
The rural and urban divide in Oregon makes especially vivid a clash between private interests and public welfare that has vexed the nation since its founding. In a presentation at the Lincoln Institute of Land Policy last spring, property-rights expert Harvey M. Jacobs, a professor at the University of Wisconsin-Madison, cited James Madison as an early advocate for giving unique status to private property in American laws and culture: “Government is instituted no less for the protection of property than of the persons of individuals.” He set that view against Benjamin Franklin’s demurral: “Private property is a creature of society, and is subject to the calls of that society whenever its necessities require it, even to the last farthing.” The founders didn’t resolve the property conundrum: the Declaration of Independence promises “Life, Liberty and the pursuit of Happiness” but not “life, liberty and property,” as Thomas Jefferson preferred.
Dozens of court cases haven’t untangled the conflict, nor has Oregon’s civics lesson in property rights. “The property-rights movement was quite successful at getting out its message,” Jacobs says about the state’s ballot issues, “which was to focus on the point at which the government asks too much of the individual in terms of regulations.” As for regulations aimed at cutting carbon emissions, he adds, “There is tremendous potential for fundamental conflict between what appears to be necessary for the greater good of neighborhoods, cities, and regions, and what individuals think of as their property rights and the protections the constitution affords them.” It’s human nature, Jacobs explains, to pursue our self-interest even when we know some personal sacrifice will benefit us all in the long run—a lesson climate-change idealists might well take to heart.