Oregon Big Land Use Swindle

Oregon’s Big Land Use Swindle
By Margaret Goodwin
Oregon Tax News

Thirty-five years ago, the Oregon State Legislature decided that government must have more control over private property. Oregon’s economy was evolving and its population was growing. Liberal reactionaries feared the ensuing development would encroach on lands traditionally used for forestry and farms. Progress inevitably leads to growth. If growth is determined to be bad, then progress must be restrained, if not altogether halted. Development also posed a threat to viewscapes for those who felt a moral obligation to preserve the aesthetic purity of other people’s property. The legislature’s solution was to establish centralized control of resources to ensure that everybody’s land was used “properly,” rather than leaving it to the vagaries of the free market and personal inclination. So, in 1973, they enacted the Oregon Land Use Act (Senate Bill 100).

The Oregon Land Use Act required every city and county in Oregon to implement a Comprehensive Plan, and created a taxpayer-funded bureaucracy, the Land Conservation and Development Commission, to impose mandatory statewide standards with which all Comprehensive Plans must comply. One of their goals was to prevent urban sprawl, so the LCDC mandated the establishment of Urban Growth Boundaries and restricted all new commercial and industrial development to within the UGBs . To enforce the perpetuation of the traditional economy, the LCDC required every county to “protect” any undeveloped land outside the UGBs by zoning it exclusively for forestry or agriculture, thereby precluding future development.

The LCDC conveniently absolved itself of accountability to the citizens whose land was arbitrarily rezoned, by declaring that it was the counties, not the LCDC, that determined the zoning of individual lots when drafting their Comprehensive Plans. Nevertheless, the LCDC reviewed every Comprehensive Plan to compel compliance with its mandatory standards, leaving the counties little latitude. Noncompliance would result in an “enforcement order” to cut off state funding of mandated county services until compliance was achieved.

Some counties didn’t have sufficient resources to individually notify property owners that their land had been rezoned, but merely published notices in the newspaper. Property owners who missed the notices, or didn’t read all the fine print, didn’t find out their zoning had changed until they applied for permits to develop their land, sometimes years after the fact. Naturally, there was a huge outcry from citizens whose property rights had been yanked out from under them. Thousands of people suffered tremendous losses of property value; many lost their nest eggs for retirement.
After 30 years of legal battles, the voters passed Measure 37 in 2004, allowing citizens who could prove a significant loss of real property value as a result of regulatory changes to claim compensation for their loss. The state or local government had the option to issue a waiver, in lieu of monetary compensation, allowing the property owners to use their land as it was zoned at the time they purchased it. In most of the cases in which a claim was verified and approved, counties opted to issue waivers.

So many Measure 37 claims were filed that the Department of Land Conservation and Development’s sweeping plans for statewide control of private property were threatened. So, the DLCD came up with a plan. In 2005, they declared that all Measure 37 claims required a state waiver in addition to the waiver issued by the county. Then they bemoaned that there were too many claims to process within the six month time limit specified by Measure 37, and they needed to extend the limit by a year. Hanging the pending claims out to dry for another year bought them time to draft Measure 49, which would effectively repeal Measure 37. The state spent a lot of taxpayer money on a campaign to vilify and characterize Measure 37 claimants as greedy developers and evil capitalists. Their strategy succeeded and Measure 49 passed.

Measure 49 is patently absurd, setting arbitrary limits on the number of houses a property owner can build. Claimants were pressured to apply for a “fast track” permit, which would allow a property owner outside the UGB to build a maximum of three houses, regardless of whether their parcel was five acres or 5,000 acres. The only other option was to petition for the right to build up to ten houses, which entailed a much more complicated and expensive process, with an onerous burden of proof that could only be satisfied if the land had actually been appraised for development before the Land Use Act was passed. Claimants were to be notified in writing of these options within 120 days after Measure 49 passed, and only had 90 days thereafter to elect their option or permanently forfeit their right to any development of their property.

The DLCD also asserted that Measure 49 invalidated all existing Measure 37 waivers, except those that were already “vested” by having developed the property. However, the definition of vesting was left conveniently vague, and property owners who had spent millions of dollars developing their property were told they were not vested and could not continue development. Furthermore, when one files a Measure 49 claim, there’s language in it that says no additional relief or compensation is due, and no waivers may be issued with regard to the property. It appears that the intent of the DLCD was to coerce Measure 49 claimants into signing away whatever rights they had been granted under Measure 37.

In light of the recent US District Court ruling that Measure 37 waivers are Constitutionally protected contracts, it doesn’t take a crystal ball to foresee lots of litigation in the future of the DLCD, and of all the counties they put in the middle between them and the citizens they tried to swindle out of the use of their land. And the Oregon taxpayers will be paying for it.

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Posted by at 06:00 | Posted in Measure 37 | 16 Comments |Email This Post Email This Post |Print This Post Print This Post
  • JohnIQ

    Все-таки потрясное изобретение – блог. Казалось бы обычный сайт, но изменили подачу информации, передали сайт в руки одного человека и открылась еще одна грань общения с миром.

  • Jerry

    We must stop growth at all cost.

  • John Fairplay

    “Liberal reactionaries feared the ensuing development would encroach on lands traditionally used for forestry and farms.”

    This is not what liberals fear with regard to land use, it is merely the seemingly plausible public reason they put forward for their support of restrictive land use laws. What liberals fear is freedom – a person who owns private property and can use it as they wish cannot be controlled as easily as one whose property has restricted uses. Terms such as “exclusive farmland” and “exclusive forestland” are terms of oppression.

  • eagle eye

    The land use planners, along with the ranchers seeking handouts, are the ones who want to fill Oregon with giant ugly wind turbines.

  • Rupert in Springfield

    The interesting thing is why the left gets upset when it is pointed out to them that all of this sort of thing is about control of the populace.

    I mean can anyone name a single effort other than abortion where the left has been on the side of passing laws to enhance peoples freedom rather than restrict it?

    Property rights? Nope

    Insurance? Big nope, you buy what they say (insurance mandates) where they say (no across state lines)

    Firearms? Nope, go to a gun store these days, you will get trampled quicker than a Wal Mart greeter, the shelves are empty in response to the election.

    1st amendment issues? Well, we all see what happens to you if you put up a Christmas tree. Freedom of speech? Forget it, look at McCain-Feingold. If you are making porn, that’s ok, total free speech there, political speech? Watch what you say.

    Ok, so I was wrong, abortion and pornography. The left will fight restrictions on those. I am not saying those aren’t worthwhile fights, I am just curious why those are the only freedoms of importance to the left.

    So I propose this, originally I proposed it only in conjunction with 2nd amendment issues years ago, but I now think it works across the board.

    I call it the “and abortion” postulate.

    It goes like this, since the only area of freedom the left cares about is abortion, try slapping the phrase “and abortion” onto all their other attempts to restrict freedom.

    You are in a restaurant with a liberal.

    You are talking about the recent wave of firearm purchases – “Gee, who could be against a seven day waiting period, its just common sense”

    “Sure, I can see having to wait seven days for a gun, and an abortion, give em time to think”

    The liberal will come across the table at you.

    Now about insurance?

    “No, we need state mandates on insurance, and to make sure you cant avoid them, no buying insurance across state lines”

    “Gee, you’re right, I mean we are talking about peoples health care here. The state has a perfectly legitimate right in regulating health insurance as a health care issue and restricting its citizens so they are safe…..so, no insurance across state line…oh, and no abortion across state lines either of course.”

    Sound good so far?

    How about zany property laws that restrict what you can do with your land?

    “”We need these laws to insure development proceeds within sane boundaries, people should have to go through these rigorous approval processes to make sure development is done the way we want.”

    “Oh I quite agree, I mean without a state process, people are liable to do anything. There should be an orderly, if extensive process to insure people don’t go off the deep end, I mean with all of their property, land and body, development and abortion”

    “Wait? What are you talking about?

    “Well, I mean shouldn’t their be a regulatory process with abortion approval? Lets look at how out of hand its gotten – partial birth abortion? You don’t think that needs to be reigned in a little?”

    Fun game huh?

    And you can do it with almost anything, since the left wants to restrict everything.

    So anyway I’m talking to Parker Brothers about it, I think it could be made into one of those party games with cards. Something like Taboo or Apples and Oranges.

    For the record I am not all that anti abortion. I am definitely anti infanticide, such as partial birth abortion or 8.5 month abortion. I could say I am 100% against that. The morning after pill? Probably ok with it. In between? It varies. Porn? A total free speech issue. I dont give a rip what someone looks at. Id rather someone set up a porn store next to me than a muffler shop.

  • Anonymous

    Even in this collapsing economy the left won’t free up some rights to build a few thousand houses scattered around the state.

    If all of the M37 claims, for at least the 1 to 3 houses, were fast tracked with a super-siting like approach many of them would be under construction soon.
    More work for planning/permit agencies, architects, surveyors, all the building trades etc., and a net gain in revenue for the state and many taxing jurisdictions.
    Thousands of jobs and a boost to our economy.
    And despite the endless Bullshit from the left there would be no downside effect to Oregon’s landscape.

  • dean

    Margaret’s summary of the history of land use laws in Oregon is so one-sided and plan wrong on many accounts one would need all day to correct her. As a start, Counties are not limited to zoning lands exclusively for farm and forest uses. They also zone land under “exceptions,” such as rural residential and commercial. They take a number of factors into account, including the viability of land for farming or forestry.

    Land use controls are not a “liberal” invention. They date back to the middle ages and were part of the first colonial settlements in the United States. Every homesteader that got free or heavily subsidized land from the government, which took it from the original owners by force or through treaty, had to “prove up” by clearing the land for farming. Land use zoning has been upheld at the Supreme Court level since the 1920s numerous times. And Oregon’s land use system survived 6 attempts at elimination at the polls. Since only around 25% of Americans self-identify as “liberals,” I don’t think this is a classic “liberal-conservative” issue. How many “conservatives” would want to eliminate land use controls in and around their own homes?

    Measure 37 was sold to the public as a way for a few elderly Oregonians to get some money for their retirement. It passed, and when a number of large developments, casinos, big box stores and billboards were applied for people were given a chance to modify their decision, and they did so overwhelmingly. Again…it could not have been just “liberals.” There are not enough of us.

    The vast majority of M37 claims were pretty small, and these can go forward under M49. Limiting the number of homes in rural areas is not “arbitrary.” Rural subdivisions make commercial farming and forestry more difficult and suck limited aquifers dry.

    • Steve Plunk

      I always find humor in the critic who has so many complaints they just don’t have time to say list them all.

      Counties are severely limited in how they can grant those exceptions. The pressure in the early seventies to get all land zoned resulted in a good deal of unproductive land being classified as EFU or Forest. Getting those changed is now very difficult thanks to the LCDC and DLCD.

      Oregon’s land use and zoning systems are liberal inventions. Early land use regulations were more common sense than we see today so don’t blame the colonists for the mess we have.

      Measure 37 was not sold to me as anything more than giving rights back to the people who should have never lost them. Maybe Willamette Valley people saw old ladies getting the benefit but the more educated among us knew what was going on.

      The fundamental problem with Oregon’s land use system is the unfair burden it places on the few for the benefit of the many. Those many people receive those benefits without paying for them. That is robbery in my book.

      • capor

        “Again…it could not have been just “liberals.” There are not enough of us.”

        I have to agree with Dean on that statement. And to be fair, there are a number of us conservatives that voted against M37 and for M49. Alot of us realized that M37 was flawed and would impact our counties substantially. That is what happened. Alot of us supported M49, though realizing it was not a solve all for the problems experienced by some elders that intended to parcel their pre-73 lands. M49 has been able to meet the needs of a substantial number of land owners that did choose to fast track. A vast majority of them simply wanted to build a second home for themselves or a family member on their parcel. M49 has met that goal.
        A large number of us involved in agriculture and forest management have opposed significant changes in land use practices in Oregon, poor as they are, because we fear the loss of ability to practice the ag or forestry trade in a common sense manner. The more we allow SFD’s (single family dwelling) to encroach primary land, the harder it becomes to keep agriculturally viable.
        M49 will work for the majority, and they ruled.

    • Anonymous

      “Margaret’s summary of the history of land use laws in Oregon is so one-sided and plan wrong on many accounts one would need all day to correct her.”

      Well, Dean go ahead. You don’t have a job so you’ve got plenty of time.

      “were part of the first colonial settlements in the United States”

      Dean lies again.

      “Every homesteader that got free or heavily subsidized land from the government, which took it from the original owners by force or through treaty, had to “prove up” by clearing the land for farming”

      I would call this a lie, except for the fact that the untruth of it is probably more due to Dean’s total ignorance of historical fact than his compulsive lying.

      All the homesteaders had to do was to (sometimes) pay a filing fee and then go back and file some paperwork 3 to 6 years later.

      “I don’t think this is a classic “liberal-conservative” issue.”

      Well, you got the first three words right.

      “Measure 37 was sold to the public as a way for a few elderly Oregonians to get some money for their retirement.”

      Another total lie. If Dean was pinnochio he’d be able to scratch his ass with his nose.

      “Limiting the number of homes in rural areas is not “arbitrary.” ”

      God man, don’t you ever get sick of yourself?

    • cc

      “Margaret’s summary of the history of land use laws in Oregon is so one-sided and plan wrong on many accounts one would need all day to correct her.”

      Well shoot, daen, you’ve got all day – show us all how “plan wrong” she is, you helpful little troll. While you’re at it, why don’t you explain how “one-sided” accounts are OK for you but not for others?

  • JesseO

    Our land use system was created by Republican Hector MacPherson and Republican Tom McCall. Attempts to directly repeal it were turned down by voters in 1976, 1978, and 1982. To claim it’s liberals doing it is simply not supported by the facts.

    Zoning was created to protect property values in the 1920s, and used over time to restrict what people could do, so that everyone benefits.

    I suggest people read Rypkema’s speech here, as he’s a “crass, unrepentant, real estate capitalist Republican type”

    here: http://www.law.georgetown.edu/gelpi/current_research/documents/RT_Pubs_Other_Rypkema.pdf

    • Steve Plunk

      Jesse,

      With due respect Tom McCall was a liberal and the original intent the land use system might have had broad support but the system we have now is very different than what we were sold. The fact attempts were made to repeal the system tells me many are unhappy with it.

      I would argue the very idea that restrictions benefit everyone makes no sense. Restrictions by definition keep someone from doing something and that something may have benefited them. To deny them that benefit is a cost they incur.

      I have seen land use laws in effect become rent seeking devices used by those with the resources to exploit them. Sometimes the laws stifle competition and the expense of the consumer, sometimes windfalls are realized through accident, sometimes political influence dictates who wins and who loses. Making the government arbiter of success will lead to corruption.

      True conservatives understand how granting the government this much power could only come at the expense of individual liberty.

    • Tim Lyman

      The “zoning” laws of the 1920s were almost exclusively in the form of property covenants preventing the sale to or occupation of property by racial minorities.

  • Rupert in Springfield

    Oh good Lord. The origin of something has nothing to do with who may or may not be abusing it in the present.

    Example – The Davis Bacon act.

    Then – Originally put into place by Racists ( Republicans in this case ) to keep blacks from being hired on Government projects.

    Now – An act used by liberals ( Democrats mostly ) to buy the votes of their union base by using federal and state ( in states that have “Little Davis Bacon laws ) dollars.

    I don’t care who put the Oregon land use laws into effect, the fact is it is used now mostly by those on the left to stifle any development they don’t like. Sure I have seen some conservatives who seem to like the states land use laws, but by and large it is the left who went ga ga over measure 37 and predicted an end no less dire than if it were proclaimed in Al Gorean terms by the prophet himself.

  • Geezer

    There are two basic problems with Senate Bill 100 and what followed – firstly it was not followed = rule making expanded it beyond the original intent.
    And secondly many of the field people sent out were “a youthful blend of arrogance and ignorance.”

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