Planning in the West

The Campaign Against Land Use Planning

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

	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?

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