Planning in the West

The Campaign Against Land Use Planning

By Dan Richardson and Sam Lowry, 9-08-06

	Caption: Demonstrators picket on the Washington statehouse steps against that state's property takings initiative. Though passed in Oregon, the pay-or-waive concept has gathered increasingly determined opposition. Photo courtesy of the No-On-933 campaign.

Editor's Note: This is the third of three-part series on the fallout from Oregon's landmark rollback of land-use planning, Measure 37. Click here to read the first installment, and click here for the second. This project was underwritten by the Orton Family Foundation in conjunction with the PLACEMATTERS06 conference to be held Oct. 19-21 in Denver.

For 30 years, Oregon had the nation's most restrictive land-use laws, and when voters in 2000 passed a property-rights initiative only to see it nullified by the courts, public officials should have seen it as a wake-up call that the rules were alienating citizens. But they didn't, and thus it wasn't surprising that the follow-up, Measure 37, passed in 2004 with 61 percent of the vote.

It isn't hard to see what drove Measure 37: Too many planners telling people they couldn't build on their property; too many rural retirement dream-homes nixed (and too many grand development schemes); a gradual erosion of equity as Oregonians saw neighbors achieve things they themselves had had to forgo. And many held a growing suspicion that the state's planning program was about protecting open space, at their expense. It galled landowners to think that their options might be severely curtailed for others' viewing pleasure - with nobody admitting it.

That's what happened here. But if Oregon's the restrictive state, how can others around the West be so concerned about the far less-demanding land laws they live with? As it turns out, they are at least concerned enough in six states - Arizona, California, Idaho, Montana, Nevada, and Washington - to have signed petitions to put similar initiatives on their fall ballots.

Never mind for the moment that the initiative campaigns are heavily, but surreptitiously, funded by a New York real estate developer and other Libertarian activists with only a tenuous connection to the West. The big irony is that Oregon has moved on, trying with stoic sincerity to turn the land-use war into civil debate and workable resolution. A committee of ten prominent citizens, representing all sides of the issues, is now engaged in a three-year review of the state’s planning system. Their effort, called the “Big Look,” amounts to treaty-making; their goal is to craft recommendations balancing conservation and property rights, probably ending in legislative action to keep but overhaul the current system.

Could their treaty-making serve as a model for all states in the West? Yes, it could. Whether the initiatives in the six states are approved or not, word of the Big Look’s work will undoubtedly spread. And it should. But some here in Oregon wonder why our Western brethren don't just skip the revolution and go straight to the civil debate.

This article presents the situation at press time in the six Western states with property rights initiatives on or heading for the fall ballot, with mention of two other initiatives that failed to advance.

The Reason Foundation Stirs it Up

	Suzette Kelo, the woman whose Supreme Court case has ignited a property rights movement. Photo courtesy of the Institue for Justice, which argued her case.

In 2005, the libertarian Reason Foundation circulated a document subtitled "Exporting Measure 37 to Other States." It was written in the angry wake of the US Supreme Court's Kelo v. New London case, which said governments can use their eminent domain powers to seize private property on behalf of a private company.

Reason's author, Leonard Gilroy, advised activists to consider a "Kelo-plus" approach to framing initiatives, combining eminent domain reform with other property rights agendas to "capitalize on the tremendous public and political momentum generated in the aftermath of the Kelo ruling."

Central to Kelo-plus was the movement's true driving motivation: to strike against land use planning, zoning, and all other government regulation of land, mostly through "pay-or-waive" measures such as M37. They general hold that if regulation limits the economic value of a property, in what is sometimes referred to as a "regulatory taking," government should pay for the damage, or waive the rules.

Kelo-plus is precisely what's in play this year, forming the heart of ballot initiatives around the West. Pro-planning forces say its equation of eminent domain with regulatory taking is deceptive, a way to mask a radical idea with a more common, more outrage-inducing one. Proponents defend the conflation. "They're absolutely the same issue," said Heather Wilhelm, a spokeswoman for Americans for Limited Government (ALG), a Chicago-based group that funds the movement.

Many just find pay-or-waive unreasonable. As blogging law professor Ben Barros has put it, proponents "never make a convincing transition from criticism of current regulatory takings doctrine that denies property owners compensation for substantial diminutions of value, to support for a statute that requires compensation for any diminution."

But deception or no, proponents took Gilroy's advice: Kelo-plus, with powerful pay-or-waive (or pay-only) provisions, shaped initiatives in five states, excluding only Washington's; in Measure-37 Oregon, eminent domain is on the ballot separately.

	Links Howie Rich & his initiative-funding Measure 37 Civil land-use debate Top-to-bottom review of Oregon’s land-use laws Kelo Supreme Court decision Kelo-inspired activism/anger Americans For Limited Government Howard Rich’s money supporting the initiatives Howard Rich, affliations Transferability (Measure 37 issue)

If Measure 37 is the precedent and Kelo-plus the property rights campaigns' guiding strategy, the political catalyst drawing them together has been big money from a wealthy New York real estate developer and Libertarian activist, Howard Rich. Most of the campaigns' funding came from Rich, or from his political action groups, particularly ALG, often through superficially concealed connections. In-state funding was often negligible, outraging many locals (Oregon's Gov. Ted Kulongoski, claiming ALG is toying inappropriately with regional politics, has challenged Rich to come debate an unrelated libertarian initiative he is funding in Oregon this year. Rich has demurred.)

The unmasking of both Kelo-plus and Rich’s influence has been the big story in the election run-up; both may have harmed the measures’ chances. Gilroy recently admitted to the possibility of overreach (suggested on New West months ago). He wrote on Reason's website that Kelo-plus initiatives "carry an ... element of political risk, as vocal opposition to the regulatory takings component could jeopardize the measures' passage."

But the fat's in the fire. And what are the measures’ chances? We did not include a survey of pollsters in the reporting for this article, but can offer two more lessons from Oregon. First, anyone who is overconfident, as planning proponents here were before the Measure 37 vote, may be surprised. The issues strike different people in very different ways that may defy intuition or calculation. And second, the swing vote rests with the quiet middle: if they have seen tangible signs of unreasonableness from either side, they’ll vote against them.

Our best guess? Thumbs-down everywhere except Nevada and possibly Montana. But we may be surprised. Here’s the breakdown.

California

On the ballot in California is Proposition 90, a Kelo-plus constitutional amendment combining eminent domain reform with broad regulatory-takings provisions. "We figured that if we are going through the effort and expense, we might as well do both," said Dave Gilliard, consultant to the campaign and political adviser to its sponsor, Assemblywoman Mimi Walters of Laguna Niguel. "California has been at the forefront of locations where environmental legislation has trampled on private rights."

	Locals angered at an eminent domain proposal in Gardena, Calif., demonstrate for roperty rights this summer. Photo courtesy of No Grab, the Gardena rights group.

The opposition campaign emphasizes Prop 90's costs. Passage would affect more than land use: crafters expanded the definition of "damage" to include all "government actions that result in substantial economic loss to private property." And California is one of three states opting not for pay-or-waive, but for a pay-only approach: if land value is reduced, government must pay.

"It will cost, and people don't know that yet," said No on 90 spokeswoman Kathy Fairbanks. "Howie Rich [ALG's founder] has a well- known agenda, to gut government and protect the little guy ... but if this passes it will do the same thing to the little guy - the taxpayer will have to pay out the claims," Fairbanks said. "If it were just eminent domain, we probably wouldn't have a 'No' campaign."

Washington

California's campaign received $1.5 million. Following a ballot-title challenge in March, property activists in Washington state qualified Initiative 993, the "Property Fairness Initiative," with half their funding from Rich.

I-993 is the closest cousin to Measure 37, as it would allow claims retroactively, albeit only from 1996 onward (Oregonians may file M37 claims back to the time they acquired the land). Other states' initiatives are "prospective only," requiring compensation only for value lost to future laws. As Reason's Gilroy has written, "if governments do not impose any new regulations that restrict private property rights, then the measure[s] will not impose direct costs to government."

In Washington, as in California, a fierce fight is in progress, with I-993 facing a large counter-campaign and debate in newspapers and blogs. Financially, the Washington campaigns are well matched, with the pro-933 Property Fairness Coalition (PFC) supported by individual farmers, agricultural businesses, county farm bureaus, and ALG. The opposition group, Citizens for Community Protection, includes environmentalists, unions, and activist groups.

I-933 was launched by the Washington state farm bureau; farmers despise the state's chosen approach to growth management, which prescribes little direct limitation on land division but is hard-core about environmental protection.

But as Eric Pryne recently reported in the Seattle Times, they are also having trouble keeping their coalition, as home builders, real estate agents, and timber companies "have made their peace, to some extent, with ... land use and environmental laws."

Montana

Montana, least developed of all Western states, still found signatures enough for the Kelo-plus, pay-or-waive Initiative 154. Called the Protect Our Homes initiative, it "will get us back to the freedoms that America's founding fathers intended," said a press release by spokesman Trevis Butcher. (Those involved with Protect Our Homes, including Butcher, did not respond to calls or e-mail.)

Conservationists in Montana are wary of the potential I-154 has to unravel the community-based planning in that state. A group called Property Owners Against I-154 formed in July, financed initially by a coalition of conservation and environmental groups, with subsequent help from MEA-MFT, the state's largest employees' union.

As growth in the West continues to accelerate, the importance of good planning becomes ever more obvious. With the Orton Family Foundation, New West and Headwaters News have teamed up to produce this special editorial project on planning in the West. Measure 37: The History, the Future When Oregon voters approved Measure 37 two years ago, they made a loud statement against heavy-handed planning, and set the stage for both a comprehensive review of the state's land use regime and copy-cat initiatives across the West. In this three-part series, Dan Richardson and Sam Lowry look at the history and future of the measure and it's children. Part I: The Legacy of Oregon's Measure 37 Part II: Oregon's Hood River Valley: Life After Measure 37 Part III: The Campaign Against Land Use Planning Best Practices in Planning We looked around the West for examples of successful planning processes and found plenty to be proud of. Watch this space for a series of five case studies of people and places that have made things work. Part I: Land-Blending in Breckenridge Creates "Tasteful Goulash" Part II: Albuquerque's New Urbanist Central Avenue: Citizen-Driven Design Part III: Rocky Boy's Plan Conserves as Much Land as Possible Part IV: Boise's Harris Ranch Moves Forward With Structured Collaboration Part V: Boulder Weighs the Price of Open Space Headwaters News: A Western Perspective Daniel Kemmis, a Senior Fellow at the Center for the Rocky Mountain West, looks at the politics of growth management policy and University of Colorado-Boulder and Orton fellow William Travis writes about watch-dog groups and bridging the disconnect between concept and reality. Growth-Management Politics, by Daniel Kemmis A $5 Million Growth Solution, by William Travis

The problem with pay-or-waive, according to Craig Kenworthy, stewardship director for the Greater Yellowstone Coalition, a Montana conservation group, is that it favors developers and speculators over existing landowners. Unlike Oregon, Kenworthy noted, Montana has no state-run, top-down planning system. "Montanans want to preserve property rights, but it has to include both sides of the fence ... This is destroying the balance Montanans have already found."

Arizona

A Superior Court judge's rejection on Aug. 18 of a post-signature- gathering legal challenge to Arizona's Proposition 207, the Private Property Rights Protection Act, made that state's pay-or-waive, Kelo-plus initiative the latest to advance to the fall ballot. "The voters should be allowed to voice their views regarding this proposal," ruled Judge Paul McMurdie.

Facing off in the campaign are the Arizona Home Owners Protection Effort, beneficiaries of at least $850,000 in Howard Rich funding, and a broad No On 207 coalition including the several city governments that filed the legal challenge.

Prop 207 includes an express guarantee that waivers exempting people from land-use regulations, once granted, run with the land in perpetuity. Unlike Measure 37 claimants in Oregon, Arizona landowners granted rule waivers would be able to transfer the package – land plus freedom from regulation – to any buyer, including a developer.

It's clear to most observers that governments have neither resources nor will to compensate every resident claiming their development schemes have been limited, or "damaged." The point isn't payment, but getting governments to back off from rules that hinder development - or in the case of "prospective-only" initiatives, never again to create such rules.

Nevada and Idaho

But activists in Idaho and Nevada, like those in California, don't think pay-or-waive goes far enough. Idaho's takings initiative, Proposition 2, says that any property owner whose ability to use, sell or divide land is impacted by law, "shall be entitled to just compensation, and shall not be required to first submit a land use application to remove, modify, vary, or otherwise alter the application of the land use law ...."

Nevada's "Property Owners Bill Of Rights" initiative, the only other proposed constitutional amendment besides California's, is also the last to have a legal challenge still pending against it. On Aug. 9, a local judge declined to rule in a suit filed by government agencies against the People's Initiative to Stop the Taking of Our Land (PISTOL). He passed responsibility to the Nevada Supreme Court, which heard arguments on Aug. 24 and was expected to rule by Sept. 18.

Nevada crafters also chose a pay-only approach and added the season's most expansive definition of damage: "Government actions which result in substantial economic loss to private property shall require the payment of just compensation." This prompted the suit, which argued that the proposal would bankrupt local governments.

"If there are policy evils in this initiative, that's going to be for the voters to determine," said Judge Mark Denton of his ruling.

Napa Valley and Colorado Say No

Two other Western property rights initiatives have ended in failure this year. Voters defeated "Measure A" in Napa County, Calif., in June; and Initiative 86, in Colorado, did not make it to the ballot. Reasons cited lend credence to the post-Measure-37 Oregon tack - negotiation, compromise, balance - but, ironically, also call Oregon-style statewide planning into question.

"If something happens to the agricultural preserve [a local zone], our quality of life goes away," said Tom Shelton, a Napa Valley winemaker who campaigned against Measure A. "Even non-wine folks agree. Without it we become Santa Clara." Opponents argued successfully that Measure A would do away with local control. "Local community control leads to a reasonable discussion," Shelton said.

"Joe Sixpack doesn't feel there's a big infringement here," said Eric Bergman of the Colorado Office of Smart Growth (under the current Republican governorship). "We are a low control state; most land use is local. Zoning and building codes are not even required here."

"They don't have this big state thing to rail against," echoed Elise Jones of the Colorado Environmental Coalition, "Eminent domain riled up the private property folks, but we dealt with it in the legislature."

Had other legislators - say, in Oregon earlier this decade - acted as proactively as those in Colorado, there might have been no Western property rights movement this year. There still would have been the mass anger at the Kelo decision, and Howie Rich's millions available to bankroll activists, but much of the steam might have been released.

Voters will have their say, and soon. Will they follow Oregon's path, lurching this way and that on property and planning? Or will they learn Oregon's lesson, skip the revolt, and sit down to find a thoughtful resolution that takes broad needs seriously, from conservation to sensible development? [End of article]

Dan, I find your series both supperficial and misleading by lumping all these initiatives into a grand conspiracy. As for I-933, not 993, you fail to address the sequenced process whereby the hammer is to encourage the governmental authorities to talk and negotiate with the landowners to find a solution. That has been sorely missing in many of the enactments in Washington. Leaving out the intent of the I-933 movement and the mechanics of the process is a disservice to those that want a more consultative, responsive government that affects property rights. The hammer is intended to smash governmental arrogance and bring them to the table. :>(

Thanks for your comment, Mr. Moore. Local anger is genuine, and we try to make that point. It's not all about Howard Rich. Next, yes, most here believe that without Measure 37, we wouldn't have had the Big Look. But our point is that means this particular hammer has now been used, and shown to be a much larger one than the suituation requires. There is now a real and less polarizing alternative - as the Big Look is showing. Other states have no obligation to do as we say, not do as we do - but it makes no sense not to learn from our lessons. - SL

Sam, you are welcome. It makes no sense to throw everything into the bass-o-matic and come out with a homongenized conspiracy. I-933 says to consult and negotiate or pay. Without the hammmer the ordinary citizen has NO bargaining position.

Why don't you and Dan give some thought to continuing your series and consider bringing the federal process of conservation easements to the state and local levels. The program is voluntary, compensates landowners, and makes govt. taking competitive with other uses. That is Pete Geddes idea. The tax incentive could be against property taxes. Just a suggestion to leave the subject on a high note rather than a stinking pile and walking away.

Thanks, Mr. Moore. There's only so much differentiation possible in a short space. Is it possible that the Washington growth managers' big and alienating flaw has been their stance on Columbia River water for irrigation? Okay. But don't throw the baby out with the bathwater. With I-933 (and in response to commenters on installments 1 and 2), you put still-thriving farm areas such as the Centerville plain at risk from developers. Farming is so far from a dead letter. Regarding the hammer concept, the goal of negotiation is to come out with tradeoffs and a set of new understandings and tools that everyone can live with. Those tools should certainly include conservation easements; Washington's used those better than Oregon has. But they must include government's ability to legislate in a way that follows changing times. - SL

Sam, you wrote: "But they must include government's ability to legislate in a way that follows changing times.

Power corrupts, absolute power corrupts absolutely. --Lord Acton

To ask government to consult, negotiate, and possibly compensate for impaired property rights does not take away their ability, only their arrogance and disrespect of basic constitutional rights. If you are ever on the receiving end of a condemnation proceding you will learn quick how little bargaining position you have.

One problem with this discussion is that is it assumed planning de facto diminished the value of land; that just isn't true. What is needed is some in depth accounting in order to compare the lost value due to planning and the enhanced value. The last time I looked lots next to city parks were worth more than those next to trailer courts, land next to a protected area (state and federal planning) is worth more than land that is not.

In fact, if left to individual discretion I would guess that land next to "Happy Acres Pig Farm" is go to sell for less than that next to a well-planned communty subdivision. What do you do if you end up next to the pig farm? Likely, you will go crying to the county for legal relief.

If the above is true then perhaps those landowners whose property values are enhanced through public planning processes would be willing to pay the city or county for that enhancement. Or does this work in only one direction?

Not a conspiracy? Like many people, I don't believe in coincidence. Of course all these extreme, anti-government ballot initiatives are part of a conspiracy! They've all showed up at the same time, all use Kelo as the bait for the switch, all are backed by the same tiny mob of well-heeled financiers and anti-government jihadists, and they all share the same goal -- make government irrelevant -- even though there may be some nuances among the different measures that are different. As for these initiatives just being a hammer to get people at the table to talk about the supposed excesses of government control over private property, puh-leeze! If these guys wanted to get together and solve problems, how come in my state, Montana, they formed a shadowy political group, got money from shadowy outside real estate developers, hired bands of non-Montana gypsy signature gatherers who deployed fraudelent methods to badger people into signing their initiatives, employ the same shallow but selective claptrap about our "founding fathers" and "constitutional guarantees" everywhere these measures show up, and use a front group in our state that refuses -- refuses! -- to say where its money comes from. Ironic. The very guys who always say government is corrupt, and that money corrupts it, are using money to buy our citizen's ballot initiative process -- $600,000 in my little state alone, just to collect signatures. They buy their government. That's because when their ideology and whining are exposed to the sunlight, they rarely survive in the market place of ideas. Takings legislation has died many ignominious deaths in our Legislature since the early 1990s, even though the body was controlled by conservatives. Even wingnuts say this stuff is extreme.

This just in: In my state, the heavy hand of government is hardly a problem for development. Look at the chaos of strip malls, Box Store Hells, trophy-home lined rivers (public rivers), subdivision sprawl, highway neon, growing congestion, weed infested lots of roadside attractions, and other wonderful examples of free enterprise that now plague what were once some of the most beautiful valleys in the West -- the Bitterroot, Gallatin, Flathead and Missoula Valleys. It's getting so bad that those who once railed about government when it did measely things to protect our state, are actually saying, DO SOMETHING! And that's why we now have a growing number of rural and conservative, Republican ranchers, as well as business people, now supporting land-use planning, river setbacks, smaller box stores, and, gasp, zoning!

Sure, we all have gripes about government. And yes, of course it is often blockheaded and over-reaching, if not inefficient and inept at times. But it's OUR government. We change it. Not with the money of NYC developer/ideologues and manipulative initiatives using scare tactics about government stealing homes, but through democracy and votes. You don't like the rules and regulations? Vote out the guys who created them.

As for the "market place" being the solution, When will these free market pontificators start saying that it's appropriate for developers of private land to PAY US when our taxes go up and our quality of life goes down in order to accommodate the demands of their projects. When was the last time somebody's taxes actually went down after the new development came in? When was the last time somebody was compensated because his or her property values went down because the nearby new development -- subdivision, casino, strip mall, gravel pit, dirt-bike track, etc. -- has made the place just a bit less attractive. We have a balance in our nation between the interests of private property and the interests of community and national good. You know the balance, it's what we preach, albeit hamhandedly, to the rest of the world. Sure, it ain't perfect. Sure occasionally somebody gets screwed. But we can tweak it where we have to using democratic principles. We don't need to apply corrupt sledgehammers like these initiative efforts to fix anything.

Bruce Farling, Missoula, MT

Bruce, you wrote: "As for these initiatives just being a hammer to get people at the table to talk about the supposed excesses of government control over private property, puh-leeze!"

My comment was limited to I-933 in Washington. However, your confusion illustrates the effect of the homgonization process of Dan and Sam's bass-o-matic approach to emulsify all states into one blender.

What strikes me as disturbing in this discussion, beginning with the article, is the adversarial attitude "the people" cultivate toward "the government." In other words, it seems that the perception is real people are milling around in front of the "government," which is evoked in the spirit of Mount Olympus, Zeus or "Planners" hurling down decrees, then running and hiding from the "real" people.

The real cause for lack of progress is the lack of discussion and inability to see the "government" as you. What also seems to be adding to confusion is the misperceptions of what the legal rights are that we call property rights. It would be good to keep in mind that they are considered a "bundle" of rights. Owning property does not mean that you can expect to do whatever you wish without regard to the effects and conseqences, short-term and long-term, to the land you own and the greater environment. Land, like water, air, and animals, is not owned in a vacuum, and never has been.

Kate has captured the emphasis exactly. Thank you. It is a very, very polarized and polarizing set of issues. But as we are trying to show here in Oregon, it is possible for the sides to sit down and work it out. It is remarkable to witness. It won't be easy. Folks like Craig are fearful of not having the chance to bargain from a position of strength, as property rights proponents here in Oregon now have the chance to do, following passage of Measure 37. And that is understandable. But I would argue - have - that passage of Measure 37 DOES give them a good bargaining position, throughout the West, and they should take advantage of it right now. If their measures fail, they will be in a weaker spot. - SL

Because of the Growth Management Act and the appointing of unelected officials to give their "green" interpretations of the Act to counties, has led to I-933 in Washington State. There was no listening by government. Everything was left to the interpretation of unelected officials and they nailed the property owner every time. Even if there is negative fallout if the initiative passes it still will be on the side of the property owner. The government did not want to come to the table and resolve any differences so now the people have spoken. The legislature has taken no initiative to resolve the disputes created by the Growth Management Act and interpreting officials. Therefore, it it time for them to face the music.

I missed Bruce Farling's name at the beginning of his comment, but my eye caught some faintly familiar themes and intelligent rantings, which I found myself agreeing with and joining in on, so I kept reading til the end. Hi Bruce! Dave Haire down here in Whyomin -

If only we had JUST nasty subdivisions, strip malls, and trophy houses to worry about - if you haven't already, take a look at the articles on the gas well blowout in the Clark area, north of Cody (Billings Gazette).

And PUBLIC rivers? Oh that's right, in Montana there's no barbed wire strung across every river right at neck level - good thing I'm short - even in a canoe!

And what's this about planning? And zoning? We don't need no stinkin rules!
We live in Whyomin! Where "Real" Republicans get fewer votes than surreal Democrats - at least for Governor anyway.

And where we don't (can't) vote directly for the state Attorney General, but the County Coroner and County Sheriff are partisan elections.

Eminent domain? Local (or as my Montana wife says, "loco") control? So your property's value goes to shit after they (state, federal, or private interests) put - wells, disposal pits, roads, compressor stations, powerlines, and pipelines - on it, adjacent to it, and/or through it.

The public was recently told that "the oil and gas industry was here first." That was spouted by a local "official" following a "voluntary" evacuation due to the well blowout mentioned above.

Hearing such crap, and working as I do with Indian tribes, I can only think of the annual re-enactments at the Little Bighorn. And that in turn makes me reaffirm my decision to never own land on an Indian Reservation. Weren't THEY here first?

Dave Haire
Powell, Whyomin

p.s. Take it easy Bruce!

Sam, you wrote: "Folks like Craig are fearful of not having the chance to bargain from a position of strength..."

As Dave Dahlke accurately illustrates, it is not fear, but real world fact. The detached, insulated powerful do not negotiate with the powerless without a little attention grabbing persuasion.

Mr. Moore: Not wishing to put you on the spot, I’d be very interested to hear your story. What is it that happened to you, or that you have seen happen? Oregon government is learning the lesson of losing touch with citizens; what are your experiences with Washington government?

Also, for you, and for others who’ve commented on these articles – and for anyone tuning in for the first time – I’d be interested to hear your reactions to the following excerpts from a recent article by Eric Freyfogle, a law professor in St. Louis (who is speaking here tomorrow night, and who spoke the other day to folks on both sides of the debate in Nevada):

“A lot of Americans are plainly worried about private property these days. Not many of them pay dues to property rights organizations but they nonetheless sympathize with the movement and its complaints …

“The current conflict has deep … roots, having to do with the the ideas people have about private property – ideas that are incomplete, even flawed … America today needs a new understanding of private property rights in land, both to deal with current squabbles and to lay a foundation for sensible regional planning. It needs new ways to think and talk about this vital, flexible institution. It also needs, in order to address current worries, something like a bill of rights for property owners – a charter that respects their legitimate interests while at the same time reflecting the complexity of property as an institution and protecting the important, competing entitlements of communities, taxpayers, and citizens …

“So who gets to manage a particular parcel of land? The individual owner? Some governmental body? The two together? Maybe neighbors have some role? The issue is about managerial control, about how we divide up power to manage nature. That’s what our country is debating today.

“Most everyone realizes that the public deserves a role here; we can’t just let landowners do whatever they want. But by the same token, the government can’t take control and push the owner out of the picture. Somehow we need to find a middle ground. And we’re having trouble doing that, finding this middle ground where the owner has clear powers, protected and secure, while the public has just enough power to protect the public’s interest in land.”

- SL

Americans have designed their cities for the past 50 years based on cheap oil and gasoline. It has lead to unsightly low density sprawl where 2 hour commutes are common. But cheap oil is soon going away which is becoming more obvious with every year. This could lead to a crash in suburban real estate if gas prices keep rising at such rates. Portland OR is now considered the most liveable city in the US because of our land use laws to control uncontrolled sprawl. Vancouver BC even has more restrictive land laws than Oregon and they are now considered the most liveable city in the world.

Erik B,
Portland, OR

Sam,
I agree there has to be a happy medium between government and property owner. The problem we have in Washington is that the government has put in place the Growth Management Act which is a blanket coverage for the whole state. This is wrong. Each area should be considered on it's own merit. The least the legislature could have done is designated each county or city to manage their own land. They did not do this since they believe they know best. That is why they have a government appointed committee to oversee land use throughtout the state. That way, they are in control and the land owner, county and city must deal with how their appointed board interprets the Growth Management Act. What we are seeing is the true greening of Washington State, at the expense of the property owner, thanks to the appointed board.

The Libertarians (Howard Rich , ALG) are partially funded by big oil which explains why they campaign so much against land use planning. Why would big oil be so interested in uncontrolled sprawl development? Because that means more roads needing asphalt which is made of oil and especially more auto commuting requiring gasoline. Follow the money.

Erik,
This is the first time I have heard the Big Oil theory. Better get your tin foil hat on. Big Oil doesn't need to fund urban sprawl. There is hardly enough gasoline to go around now, what with no new refineries in what, 25 years? And as for Portland being the most liveable city, who makes this evaluation? Some greeny sitting on the "no urban sprawl board"? I'd much rather live in amongst the trees than in Portland. You can have it and your stifling development laws.

Idaho's Forced Annexation law & Eminent Domain have much in common. Both are Takings without compensation, denying citizens involved of their voting & property Rights.
As in Eminent Domain battle, our Legislative & local government opponents also come from the influential Realtor, Developer & Contractor Cartel.
Citizens for Annexation Reform has challenged the constitutionallity of this law, our case has been awaiting a decision in the San Francisco 9th District Court for over a year.
Our http://www.voteforabetteridaho.org website provides documentation of Corporate & Political corruption in Idaho.
Idaho is a 97% Republican run state, however 55% are RINOS and an equal portion of the Democrats are equally corrupt.
These figures provide a strong case for Term-Limits.
Chuck Thomas 9-25-2006

The imperial arrogance of government continues to rear its ugly head in Washington. I-933 is meant to contain that arrogance and stimulate real discussion and negotiation between property owners and planners. This past weekend the Seattle Times ran an article that only 25% of the people favor replacing the viaduct along Seattle's waterfront with a tunnel. The tunnel option would cost about $2 Billion more than a new viaduct. A ballot measure on this was headed for the fall elections to pulse the public. The politicos struck the measure when they became concerned that it would not pass to support a tunnel. Those politicos then went into a huddle and declared that their chosen option is the tunnel and sent that decision to the governor for approval. Now the Seattle Times has thrown a monkey wrench into their plans by exposing the lack of public support. The issue of regulatory takings is at the heart of I-933, which is meant to get the attention of government and encourage constructive discourse. Those seeking to defeat I-933 raise the specter of cost but those same people are willing to throw $2 Billion away without skipping a heartbeat. Perhaps there really is spare cash available to compensate landowners as the constitution requires.

The issue of regulatory takings is at the heart of I-933, which is meant to get the attention of government and encourage constructive discourse.

Suuuuuure.

The lawyers constructively discoursing all the legal problems with the wording, constructively discoursing their fees, constructively discoursing how many years it will take to solve...

The neighbors constructively discoursing the nuisances threatening their property values with no remedy...

Anyway, it is clear that this initiative is to eliminate land use regulations. Everyone can see that. Come now.

Perhaps there really is spare cash available to compensate landowners as the constitution requires.

" But the measure provides neither a method for determining
the extent of those losses nor a method for financing them. In many cases, the losses estimated by claimants are based on scarcity value that was actually created by the development of the land use system. But with no guidelines for determining the value of claims and no funds for paying them, city councils, county commissions, and state agencies making decisions on claims throughout the state are left with no option but to waive regulations for some classes while keeping them in place for others."

Ah, well. I'm sure there'll be lots of constructive discourse then.

The real issue with these "reforms" is the fact that its the little guy that gets nailed at the end. Changes to existing regulations on property are done to fix problems of the past: think of all the things that are required that use to be optional...landscaping, sign limits, parking lot paving, etc. Back then it was a "unreasonable regulation" that "devalued property"...well, now it is a cost of doing business. While I just love the I can do whatever I want with my land arguement, which is usually from one guy on one lot that doesn't like to get a permit for a shed, the real winner in this is the sign companies (billboards anyone?) and that jerk property owner that never fixes his building up (that house at the end of the block). I think that the Libertarians are on to something...we should, as the public, demand payment for any increase in property value by government action. Then its all fair...ha!