Oregon’s Measure 37 Gets Its Day In Court

By Dan Richardson, 1-10-06

Today is the day. Measure 37's day in court. Today, Tuesday, the Oregon Supreme Court is hearing arguments that the 2004 ballot measure which upended state land-use regulations is, and is not, constitutional.

Waiting in the balance are more than 3,000 applications under Measure 37. Each one is an Oregon landowner — including a couple hundred in the Gorge — who wants to bypass land-use rules, for everything from putting a second home on his property to subdividing his land for a hundred houses.

If the Supremes uphold an autumn ruling from Marion County Circuit Judge Mary Mertens James, they will strike down Measure 37 as unconstitutional for favoring longtime landowners over more recent landowners, and for trampling on the duties reserved for the Legislature. If they reverse James and uphold Measure 37, they will confirm the voters who agreed that landowners shouldn't be bound by land-use rules that limit their property value.

Measure 37 said that governments must waive such rules, or else compensate owners. Since compensation en masse is beyond the reach of government, Measure 37 essentially releases most checks on development.

The Supreme Court's answer will either throw the doors wide to development in rural areas — Central Oregon, the Hood River Valley, the Willamette Valley, etc. — or else close them part-way. Regardless, both sides in the land-use debate are preparing future ballot measures, The Oregonian reports.

Measure 37 might be decided by the Supreme Court, but given the state Legislature's lack of resolve and the passions of the electorate, the struggle over development will probably be fought out at the ballot box.

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I'VE RECENTLY WRITTEN that Measure 37's outcome, and the related ballot measures we're likely to see in November, will be one of the Gorge's top news stories this year. The more I think on it, the more I'm inclined to reassess that statement; Measure 37 may well be the story of the year.

The issue is cast as one of property rights versus centralized land-use planning, and that's how the politics of it are expressed. In reality, this is a struggle, I fear, over unchecked development. Can we all do what we want with our land, without hindrance — that's the push. And if you ask me if I should be able to, well of course I should. ... But that gets us to throwing open the doors to every casino and condo builder, too, and that should give us pause.

Measure 37 isn't just about land, it's about soul. Are we building an Oregon of libertarian pioneers whose highest goal is to live on five-acre parcels? Or an Oregon that recognizes that restraint and long-term preservation sometimes trumps what I, you, we individually want? Do we say "property rights or death!" Or, do we suppose that some of the scenic lands, those valleys and mountains and oceanfront areas, are worth preserving as they are, even at the cost of saying no to someone's dream home? (Or more likely, someone's dream subdivision.)

A dramatic person might argue it this way: We must save some open and beautiful areas for our children. Many of us answer, damn straight. Problem is, most of us also want someone else to do the saving. "Keep your land undeveloped, mine’s my retirement fund."

Land-use regulations are unpleasant. They are too often cumbersome and impact smaller landowners harder; they’re frustrating to all involved, that's a given. The question, though, shouldn't be, can we get rid of all these stupid rules on my land? The question is, are these regulations worthwhile? Is keeping some farm and forest land beyond the reach of the bulldozers worth the frustration of government rules?

Or maybe the question is simply this: What do we want Oregon to look like in 20 or 30 years?

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IS THERE A THIRD WAY that recognizes property rights while keeping a check on rampant development and sprawl?

The answer might be no. We might have to bite the bullet and throw our collective weight behind one or the other. There are plenty who want us to do so.

But I'm a conservative. Preservation, prudence, moderation — these are principles I believe our society should live by.

Philosopher Russell Kirk balanced these interests, saying in one essay that "freedom and property are closely linked," while pointing out that the thoughtful conservative "acknowledges that the possession of property fixes certain duties upon the possessor; he accepts those moral and legal obligations cheerfully."

We hear much about the link between freedom and property from Measure 37 supporters, and very little about it from antidevelopment forces. Curiously, we hear little about a property owner's "certain duties" — because those are inconvenient to developers on one hand, and because on the other the antidevelopment crowd sees its remedies in centralized planning and regulation.

Perhaps just as instructive is Kirk's admonition that, "Any public measure ought to be judged by its probable long-run consequences, not merely by temporary advantage or popularity."

With those guideposts, the idea of a third way remains lodged in my mind. It's a half-formed thought, but here goes: How about a two-tier land-use system?

Most people recognize that certain places have scenic value. The Oregon coast is more beautiful, and valuable, than the desert around Boardman. Some places are simply more special, and more worthy of protection. Rural areas; quiet areas; the Wallowas, the Hood River Valley, the Willamette Valley, Central Oregon's hills and mountains.

Naturally, these are the places under the greatest development pressure.

Might a two-tier system be enacted to classify "special places" with stricter land-use protections, while opening up large swaths of rural areas to freer use?

That's my thought. I'm not sure it's workable. But I am sure we need to find a third way between the poles of development and centralized planning. An Oregon way.



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