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I. Introduction
Last November, in an election that had a large turnout of electors, Oregon adopted an initiated measure that appeared to be inconsistent with the state’s reputation as a leading planning state. Measure 7 provided that state or local governments that imposed regulations that had the effect of reducing property values could be subject to a 90 day claims process. If the regulation remained at the end of the 90 days and did reduce property values, the state or local government would be liable for compensation for that reduced value. The effects of the measure are unknown, and may be unknowable because, one day before the measure was to be certified as an amendment to the state constitution, a trial court issued a preliminary injunction against that certification and, more recently, issued an opinion making that preliminary injunction permanent.
The scene in planning and state and local government circles following the successful passage of Measure 7 with 53% of the vote was pandemonium. How could a state with more than thirty years experience in statewide planning adopt a measure that was so extreme that legislators in Florida, or Texas, or Louisiana would blanch at it? Had Oregon become subject to an ideology in which property rights trumped all others? Would such a measure, even after being declared unconstitutional in 2000, return and pass again?
Besides responding to these questions, it is important to consider how planners ought to respond to the latest assault on the role of government in the planning process. For we are passing from an era in which the federal or state constitutions were used to convert public regulations into private money. Largely, that effort was unsuccessful. The new game in town is to write laws which say in effect "We don’t care if the constitution doesn’t require compensation for takings, we want laws that pay property owners for any regulation that has an incidental effect of reducing property values. Moreover, we want this to be a one-way street. Only "the government" has an obligation to pay compensation and only losses trigger payment of money. Under the politics of self-interest, "the government" becomes the guarantor of land investments.
To understand what happened in Oregon, and which may come to a state near you, one must understand the history and politics of land use planning in Oregon, examine the vote on Measure 7 and the responses of the various participants in Oregon planning.
II. The Oregon Planning Experience
Oregon diverted from the usual path taken by other states in 1969. Before that time it had authorized its cities to plan in 1919 and did the same with its counties in 1947. Neither piece of enabling legislation was derived from the Standard Acts of the 1920s, promulgated by the federal Department of Commerce. In 1969, the legislature passed SB 10, which required every city and county in the state to have a comprehensive plan and zoning regulations for its territory. The measure was referred, but in 1970, the voters upheld the judgment of the legislature. SB 10 proved to be ineffective, due to lack of funds or enforcement tools. In 1973, the legislature passed SB 100, which put teeth into the requirements for planning and regulation. The state was then largely white, middle-class and had a remarkably homogenous value system and economically linked to its farm and forest resources.
The Oregon model begins with a state administrative agency, the Land Conservation and Development Commission (or "LCDC") which adopts statewide planning standards, called "goals," which cities and counties must incorporate into their plans and implement in their land use regulations, so far as they are applicable. If they don’t do it or do a bad job, LCDC has enforcement powers. LCDC has adopted 19 statewide planning goals, ranging from the procedural (citizen involvement and the planning process) to resource conservation (agricultural and forest lands and certain identified natural resources), to infrastructure (public facilities and services, transportation, housing, energy, and urbanization) to certain sensitive areas of the state (the Willamette River Greenway and the Coastal Area).
Once local governments have reviewed and amended their plans to incorporate the goals, they must submit the plans to LCDC for certification or "acknowledgment," a device by which local governments no longer risk challenges to their land use decisions against the goals, because, at least in theory, the goals have been incorporated into the local plans. While it took about twelve years, all 250 cities and 36 counties now have plans which are acknowledged.
That doesn’t end the obligations of local governments, however. To keep plans and regulations from being brought out of compliance by amendments, state law also requires proposed amendments to be sent to the state at least 45 days before the first hearing. The Department of Land Conservation and Development (or "DLCD") reviews them, and the amendments are also sent to those on a subscription list, so that the amendments may be commented upon before adoption. If someone disagrees with the amendment, he or she may challenge the same, so long as that person participated orally or in writing before the local government and raised the objection. Similarly, local plans and regulations must be comprehensively reviewed every five to fifteen years to assure they remain in compliance with the goals.
Moreover, Oregon has devised an administrative system to review local government land use actions. In 1979, the legislature created the Land Use Board of Appeals (or "LUBA") with exclusive jurisdiction to review challenges to state and local government land use decisions for compliance with local plans and state law.
Finally, LCDC has the power not only to amend its goals, but also to make their broad requirements more specific through the adoption of administrative rules. For example, the goal of preserving farmland is carried out by a rule that requires $80,000 in annual gross farm income before one may build a new house on high-value farmland. While that is a relatively small portion of farmland in the state, the number is remembered, while its small range is not.
III. Measure 7
Measure 7, as mentioned previously, requires compensation to be given to owners of land which has had its value reduced by regulations on land use. Compensation isn’t given automatically, but is the product of a claim, which the state or local government must grant or deny in 90 days if the regulation continues to be applicable. The initial reaction of most local governments was to adopt ordinances allowing their local governing bodies to repeal or suspend the ordinances which created the claim and to provide an elaborate claims system. Both DLCD and 1000 Friends of Oregon, our land use planning advocacy group, appealed these ordinances to LUBA. But because Measure 7 was itself enjoined, those challenges lie largely dormant.
Measure 7 was one of 26 ballot measures initiated or referred to the voters. Oregon had one-quarter of all the measures in the nation in the general election of 2000. Besides the presidential election, there were two statewide offices on the ballot, all of the state’s five U.S. representatives, the entire state house of representatives (60) and half of the state senate (30). The more controversial measures had to do with tax limitations and the rights of unions.
Litigation was filed almost immediately to enjoin the certification of Measure 7 and, as mentioned previously, was successful at the trial court level. Law firms put on seminars for property owners with, I am sure, no business reason in mind. And just before the final trial court decision, the Oregon Attorney General released a 110-page opinion that illustrated just how badly the measure was written and the ambiguity that must be faced if it were ever to go into effect. A final decision from the Oregon Supreme Court on Measure 7 will take about a year; however, it is likely that the result will be the same as at the trial court level, as the trial judge used recent Oregon Supreme Court decisions in evaluating Measure 7. Those decisions have nothing to do with the merits of the Measure; rather, they deal with the requirements of the state constitution as to how a measure may be put before the voters. The two deficiencies identified by the trial judge were in failing to include the full text of the measure, i.e., the proposed amendment along with the portion of the constitution being amended, and the failure to require separate votes on the various parts of the amendment. These requirements are a story in themselves and must await another day.
IV. Why Did Measure 7 Pass?
Before Measure 7 passed, the Oregon Chapter of APA had formed a committee on the Oregon Planning Experience to evaluate the state’s program. The passage of Measure 7 made the work of that Committee more urgent. Over the next month, volunteers from APA will interview people on all sides of, and with different experiences in, the state’s planning program to determine what people think is right about that program and what needs to be improved. The interviews will also deal with the reasons for the passage of Measure 7, and the results should be available this summer. Without anticipating those results, my own discussions with program participants leads me to say there was no single reason for the passage of the measure. Rather, the vote on Measure 7 must be understood in its own unique context.
A. Analyzing the Numbers -- 1000 Friends of Oregon did an analysis of the vote on Measure 7. It found that the turnout was 79.8% of the registered, rather than eligible, voters. While Measure 7 was approved by 53% of those who voted, 24% of those eligible to vote were not registered while another 30% of those eligible were registered, but did not vote. Another 3% voted in the election, but not for or against Measure 7. As a result, it was only 23% of those eligible to vote who actually voted in favor of Measure 7. Measure 7 did not speak to rolling back existing land use, water quality, or forest practice regulations — only that people be paid for their exercise. In fact, as 1000 Friends points out, there was no mention of land use laws or zoning in Measure 7 at all. While these numbers may be comforting to some, the fact is that a majority of those voting favored the measure. We should thus be concerned and look deeper.
B. Background Considerations -- Measure 7 is not just about numbers. Rather, it was a referendum on voter perceptions of the Oregon planning program and the role it plays in growth management. In Oregon, as in many other parts of the country, there is a disconnect between perceptions of people and the government. The people, like the customer, are "always right," while the government is something separate from the people — an alien or foreigner. As soon as it is elected, the government becomes the enemy, the "them" versus our "us," and we take no responsibility for that cognitive dissonance. It is as if we are bound to repeat the ideological battles of the early republic between the Federalists and Anti-Federalists. Jefferson won for the latter faction, but the legacy is not a good one. The people are good and their government is bad. It doesn’t make much sense, particularly to the idealistic planner called upon to hunker down in a survival mode. Planning is not just another job, but a calling to educate and identify and realize a public interest.
Adding to this background is the generational gap between those who lived and voted in the heady days of reform following Watergate and did many things to make the world a better place, from environmental laws, to open public meetings and records, to civil rights. The state added 20 percent of its population since the last census, so that now two-thirds of Oregonians were born out of the state. The new generation is less enthralled by those battles and is more likely to remember spotted owls, and forest lawsuits and endangered salmon. It is also more likely to have fears of unchecked growth. Further, that generation is more likely to turn into itself for fulfillment, while the older generation keeps the values, but is less willing or able to defend them. Similarly, Oregon has, in part due to its land use laws, become a highly livable place and has attracted a stream of new citizens who are less committed to its traditions and values or who do not understand those values and traditions in the context of the struggle to formulate them.
Then too, there are those who dislike the fact that, in Oregon, planning is meaningful, that plans are not to be placed on shelves, but to provide the basis for policy decisions. If plans are meaningful, then there is an emphasis on process, on legalisms, and, in the end, on lawyers. A friend of mine pointed out that the two planning directors for Portland from 1989 through 1999 were lawyers. The national disaffection with lawyers manifests itself in Oregon in Planning.
There is also the phenomenon of the use of the initiative and referendum, in the establishment of which Oregon played a leading role at the turn of the century. While these were devised as tools to keep the powerful from dominating the state in the legislature, these instruments have been hijacked by those same rich and powerful persons and interests who claim that money is speech and they can pay signature gatherers and public relations specialists to advance their political agendas. It is comparatively easy to get an initiative measure on the ballot in Oregon. Some use this process to control the political agenda. They place their adversaries on the defensive by obligating them to spend their money to defeat measures that may never pass, but which, if they did, would be disastrous. This clever strategy also means that money is not available for legislative candidates that will not support conservative causes. For example, labor must spend money in each election cycle to ensure public employee unions can collect membership dues and local governments must face tax-cutting or vote-on-every-fee measures or risk having those bad dreams come true.
And finally, there is that thing that Americans have about land. It’s a bit like the lottery — everyone thinks they are potential winners and dislike anything that prevents such a win, like regulations. The easy transition between a physical taking or taking of title on the one hand to taking by a regulation that reduces property value is perhaps too subtle for most of us to grasp. That confusion, which was present in the official statements on the measure, was a very real reason that Measure 7 passed in Oregon. As planners all too well know, a regulation that raises or lowers property values is part of the stuff of everyday life, like regulations of transportation, or apples, or securities. No tradition of American law requires that the regulated community be paid for those regulations made for our health, safety or welfare. The same should be said for land — unless it is appropriated in title or physically invaded, there is no ground for payment of public funds for governmental activity.
C. Some Reasons Measure 7 Passed -- Although many planners and friends of the Oregon program may not wish to hear it, and would ascribe the passage of Measure 7 to voter ignorance or confusion, I believe this was not the most significant reason for the vote. Let me review some of the reasons I believe Measure 7 passed, in no particular order:
1. Some Voters Actually Knew What They Wanted and It Was Not a Vote of Confidence in the Oregon Planning System -- Measure 7 passed in 34 of Oregon’s 36 counties. The general disaffection with the Oregon Planning program is most pronounced in the large portions of the state that are outside the Willamette River Valley — the Coast, Eastern, Central and Southern Oregon, the area sometimes called the "Other Oregon" because it shares much less in the economic expansion of the Valley. Although many of these areas joined the rest of the state in rejecting efforts to repeal or "gut" the program, some of these residents blame planning for the loss of timber jobs, or the denial of relief from economic hardship affecting our farmers because they can’t sell off a few acres for a house to keep the farm afloat. Similarly, there is a very real urban/rural split in the state, with the suburban areas providing the swing votes in the legislature to the rural conservatives. And even in the urban areas, there are those who have had a bad brush with the system — whether it’s the developer who thought she paid too much in development exactions or the homeowner who can’t build a back deck because it’s in one of Portland’s complex environmental zones. The passion of resentment is far greater than the passion of contentment, and those who resent tend to coalesce at election time.
2. Voter Apathy -- The proponents of Measure 7 overstate their case if they suggest a mandate against the planning system. As I’ve mentioned, almost 55% of the eligible voters didn’t vote and nearly 60% didn’t vote on Measure 7. Oregon has a vote-by-mail system and no polls. Many voters never get around to the voter materials mailed weeks in advance of the election. Some also say that citizen involvement, always the sacred cow of the Oregon system in theory, but an orphan child in practice, has been so lacking that voters felt little contact with the system, unless it was negative. Particularly in "the other Oregon," people tended to feel that planning was the "top-down" imposition of social policies to make most of the state either a farm or a game preserve and to keep money (and power) in the Willamette valley. The passion to support farm and forest land preservation was simply lacking.
3. Some Voters Were Fooled -- Besides being very badly written and but one of 26 measures on the ballot in an election year with many decisions before the voters, the campaign against Measure 7 encountered a series of disasters. For one thing, the ballot title for the measure was not challenged and the conflation between "taking" and "reduction in value" was allowed to stand. A ballot challenge, even if unsuccessful, would also have delayed the measure and probably kept it off the ballot for lack of signatures. Then, too, there was a 3-2 split on the explanation of the measure in the voter’s pamphlet, sent to every voter a few weeks before the election. The "swing" vote by a judge, went with the description of the measure propounded by its supporters.
The campaign was heroic, but it had to be, as the early tests of voter opinion showed that most thought it was quite reasonable that government should pay for "taking" property, which wasn’t what the measure was about. The measure was pitched by its proponents as an issue of fairness. Who could be against that? Because of all the other campaign money spent in Oregon, a battleground state in the presidential race, this measure was largely off the voter’s radar screen.
There was some unfortunate, and incorrect, reporting on the application of the planning system in the state’s largest newspaper just before the election. And then there was Measure 56, passed by the voters in 1998, in which the legislature avoided a gubernatorial veto and placed a measure on the ballot requiring notice to individuals whenever LCDC changes its rules or goals. The measure prescribes the form of notice, which was buried deep in its provisions, and says that this action will affect the uses allowed on the owner’s land and may reduce the value of the property. This created a groundswell of fear and resentment, which is what was intended.
Finally, the reasons the Circuit Court overturned the measure should be considered. The measure didn’t contain the full text of the constitutional provision amended, in this case the state’s just compensation clause, by which people could see just what was proposed being placed in the constitution. Similarly, the exclusion of property involved in liquor, gambling, or pornography from the protections of the new provision were made to confuse and inflame voters against these uses. Proponents of Measure 7 were too clever by half and got what they deserved.
6. Proponents Got Their Message Across; Opponents Didn’t -- Focus groups who attempted to find out why Measure 7 passed found voter perceptions drowned out by the other candidates and measures on the ballot. Voters liked planning but didn’t see Measure 7 as a threat to planning. Rather, they had little passion for the issue and, when they came to describe it, did so in broad terms of "fairness" and "balance." I myself remember the brief commercial for Measure 7 given by Florence Dolan, who said that she spent a million dollars trying to get "the government" to play fair. Unfortunately, I heard no response, nor any real demands by the press to highlight this measure. Nor apparently did the state’s media. The fairness issue cut against planners, because of the power of the anecdotal — the farmer who couldn’t move into a house on his property, the Portland homeowner who couldn’t build her back deck in the environmental zone. To some it was a case of killing the messenger, the planner who delivered the bad news. To some extent, this was a case of "Send ‘em a message." The problem is that we can’t decipher the message.
Sometimes overlooked in this debate is a longtime battle between the governor, who is a strong supporter of planning (but who did not put himself "on the line" much during this struggle), and a more conservative legislature, which would like to tinker with the planning system to the advantage of landowners. The governor had set new records for vetoes, particularly in the land use area, so the legislature has attempted to put measures on the ballot to get around the vetoes. That’s what happened with Measure 56. The governor can’t get his legislative program through and has resorted to the use of administrative rules, some of which have made policy decisions that many feel ought to be made by the legislature, such as requiring that a farmer achieve a gross in come of $80,000 for three years from the farm before a building permit for a house in conjunction with farm use on high value farmland (about a quarter of the 18 million acres in the state zoned for exclusive farm use) may issue. There’s enough game-playing and blame to go around; however, it has led to cynicism and a distrust of planning in the state.
V. LESSONS FOR PLANNERS
What should planners learn from the Oregon experience with confusing a compensable taking with reduction in value. The primary answer is vigilance. We might have stopped Measure 7 if we had challenged its ballot title, changed the voters pamphlet, run a better campaign and not left it to the other guy. We must frame the fairness question properly to the voters and not allow ourselves to be undermined by slick characterizations of the issues. We can’t rest on our laurels or assume that the electorate is the same now as it was thirty years ago, or that they agree with us. Moreover, the program cannot depend on planners for its support, for many of them work for government and are debarred, practically if not legally, from the debate.
On the merits of Measure 7, I think we should put the proponents on the spot by making them explain what class or classes of measures justify compensation, what those costs will be, and where those funds will come from. To coin a phrase, it is taxpayer money they want to give for reduction in value, when neither the state or federal constitution requires such a gift. It is a legislative judgment, which must decide between money for schools, and police, and landowners. However, planners need to look at regulations from the perspective of the regulated community as well. Too often, we see regulations added to existing regulations without an appreciation for their cumulative effect or their workability. The public may not be able to get at a specific regulation; however, it can tell us loudly when it is unhappy.
Finally, we cannot allow the benefits of planning to be taken for granted when someone insists in continuing to accept the benefits but claims a right to compensation when faced with the burdens. There is too much at stake. This is not the "me" generation; it is our generation and our country and our policy. Unless we are passionate about those things that we feel strongly about, we will be the constant victim of those who label us as the enemy, the "them" against "us." If there is an enemy, it is the politics of self-interest. As that old philosopher Pogo said, we have met the enemy and he is us. Thank you.
Author and Copyright Information
Copyright 2001 by Author
Edward J. Sullivan is a partner with the Portland office of Preston Gates & Ellis LLP specializing in planning, administrative, and state and local government law. He also teaches planning law at Northwestern College of Law and Portland State University. He has participated as an editor and author in all four of the Oregon State Bar Continuing Legal Education publications on Land Use. He was admitted to the Oregon Bar in 1969 and was Washington County (Oregon) Counsel and Legal Counsel to the Governor of Oregon before entering private practice in 1978. Mr. Sullivan has written widely on municipal and planning law topics throughout his more than 30 years of practice. He is the Chair of the International Municipal Lawyers Association Section on Land Development, Planning and Zoning and Co-Chair of the Subcommittee on Comprehensive Planning and Growth Management of the Land Use, Planning and Zoning Committee for the American Bar Association Section on State and Local Government.
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