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J. David Breemer
Mr. Breemer is a staff attorney with Pacific Legal Foundation. [go to Breemer index]

The Wisdom of Growth
What Can California Learn from Oregon...

[J. David Breemer] 12/14/04

All Thomas and Doris Dodd wanted to do was build a retirement home on 40 acres of land they purchased in 1983 in Hood County, Oregon. But the county wanted the land as a forest preserve, so it passed an ordinance banning construction on the Dodd’s property, destroying their American dream. When the Dodds sought compensation from the county for being forced to donate the value of their land to the community, the county, the state and the federal courts all said the same thing: too bad.

Although the U.S. Constitution requires the government to pay just compensation when regulations take away the use of private property for a public purpose, bureaucratic arrogance, judicial bias favoring the government and legal technicalities conspired to defeat the Dodds’ constitutional claim. The final court decision, leaving the Dodds with no meaningful rights in their property except the right to continue paying taxes on now useless property, occurred in 1998 — 14 years after the county regulated their property.

If Measure 37 had been in effect, the Dodds’ story might have turned out differently. Passed by an overwhelming majority of Oregon voters on Nov. 2, Measure 37 requires the government to pay landowners compensation when it passes regulations that destroy the value of their private property. To qualify for compensation under the measure, landowners must have purchased their property before the enactment of the harmful regulation. No one receives compensation for regulations designed to prevent pollution or some other threat to human health and safety.

Measure 37 forces the government – the public – to choose between enacting severe restrictions on property and compensating the landowners, or allowing people like the Dodds to build on their land.

Because the possibility of more building is unthinkable to ardent environmentalists and other no-growth forces, these groups have expressed shock at the passage of Measure 37. But these are the last groups that should express surprise; their decades-long efforts to force rural property owners to provide public open space for free is exactly why Measure 37 passed.

Nationwide, the tension between private property owners and government land-use regulators traces to the early 1970s, when states began passing comprehensive planning schemes. The goal was to ensure that development proceeded in an orderly and environmentally sound fashion. But the process was soon hijacked in Oregon and elsewhere by “smart-growth” bureaucrats and activists who figured out that planning could be used to stop all or most building on rural lands.

Oregon’s planning scheme began by requiring minimum 40-acre lots, upon which a single home might be built. But when it became clear that some building would still occur, Oregon regulators designated vast areas of rural land for “farm” use only. In these farm zones, a landowner had to actively farm for three years before applying to build a home. Today, the rules are even stricter. Many landowners must prove that they earn $80,000 a year from farming to be able to build a single home. Since only one out of six Oregon farmers actually earns $80,000, many Oregon farmers cannot even live on their own land.

Faced with such burdens, Oregon property owners did not initially appeal to the populace; they went to the courts. Unfortunately, the few property owners able to shoulder the enormous expense of taking on the government and its taxpayer-funded attorneys have received a chilly response. State courts have refused to apply the spirit of U.S. Supreme Court decisions holding that the Constitution requires compensation to be paid for excessive environmental regulation. Federal courts have been no friendlier, telling property owners they must seek relief from excessive regulation from the same state courts that have made it clear they will not help.

The Oregon people simply had no one to turn to except themselves. So, they did. Measure 37 is the people’s logical reaction to decades of regulation, and bureaucratic and judicial deafness to the claim that if the government wants to restrict private property as open space for the public, it should pay for the land it takes. It was designed to help individual landowners like the Dodds who have long shouldered the burden of providing environmental benefits for the general community.

Contrary to the claims of its opponents, Measure 37 has little to do with whether more development should or will occur. The measure does absolutely nothing to prevent local governments from restricting development. It simply imposes a condition of fairness - just compensation - on that power. And so, the issue of future development remains entirely in the hands of the people.

If “smart growth” – i.e., cramming development into urban areas to leave rural areas open - is so “smart” in providing public benefits, then the public will surely be willing to pay for some of its costs. If not, this will be because the public has consciously decided, when faced with the real cost of regulation, that some growth restrictions are a luxury, not a necessity. Thus, when opponents label Measure 37 a recipe for more rural development, their real beef is with the wisdom of the democratic majority, not Measure 37.

Voters in other over-regulated states may soon follow Oregon’s lead. Already, the property rights revolt has spread to Washington. The spark that set off Washington property owners was the decision of Seattle politicians to pass an environmental protection ordinance forcing the owners of outlying rural land to keep 65 percent of their land undeveloped - forever. The remaining 35 percent of their land is already subject to an array of state and local rules that often precludes any use of property. As in Oregon, no compensation is provided. Property owners, including farming families who have lived in the county for generations, retirees and self-proclaimed environmentalists, are fighting to put a referendum on the ballot to overturn the ordinance.

With the help of the Pacific Legal Foundation, they are also challenging the ordinance in court.

Can California be far behind? Like Oregon and Washington, California has seen layer upon layer of regulations forced on property owners over the last three decades. The experience of the California coast is particularly similar to that of Oregon and Washington. In the 1970s, the state created the California Coastal Commission to protect the coastal environment and the public’s ability to use the public beach, while respecting private property and necessary economic development. But, for most of its existence, the commission has acted as if it has a holy mission to prevent all building, which justifies it in trampling on the rights and dreams of property owners.

The Healing family found this out the hard way. In 1977, they purchased a 2.5-acre lot along the coast. Their plan was to build a modest three-bedroom home. What they got was a long-term nightmare.

Panicked by the environmental consequences of the home, the commission refused to process the Healings’ permit until a local government agency signed off. The catch was that the local agency did not exist. When the Healings sued to force a decision, the commission had the nerve to claim that the courts could not do anything until the commission got around to making a decision on the permit, which it had no intention of doing any time soon. The court would have none of it, and forced the commission to finally make a decision.

Unfortunately, with the exception of a few decisions like the one in the Healings’ case, California courts have been unwilling to hold the government accountable. Consequently, as in Oregon, regulation has gotten more and more severe, especially on the coast. Currently, no building is permitted near a stream or on a slope, or between a stream and slope.

There can be no building if your home looks different from your neighbors’ or the natural setting, or if your land contains common plants, such as coastal chaparral or pine trees. No building is allowed if it can be seen from a public trail or road. The latest rule is that there can be no building if the proposed structure can be seen from a boat at sea.

By and large, California county regulators have adopted similar restrictions. All of these regulations are implemented to benefit the public, but when landowners ask for compensation from the public, they are told to get lost. This is the very situation that led to Measure 37.

Measure 37 embodies a basic American principle - that even the most worthy governmental goals must be pursued by fair methods. That principle is not limited by state lines. One day soon, California regulators and no-growth forces may wake up to find that they have pushed the state’s property owners too far for too long. The people of this state know how to use the initiative process when the government fails to respond.

If the Coastal Commission and other government agencies continue requiring California property owners to leave their land untouched for the public, and the courts insist on turning their backs, coastal property owners may unite with valley ranchers and farmers in a ballot box revolt.

And nobody can predict, as the recall election demonstrates, how that would turn out. CRO

This commentary appeared in the Sacramento Bee.




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