Breemer is a staff attorney with Pacific
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Wisdom of Growth
What Can California Learn from Oregon...
[J. David Breemer] 12/14/04
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.
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.
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.
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
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.
the tension between private property owners and government
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.
people simply had no one to turn to except themselves. So,
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.
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.
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.
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.
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.
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.
embodies a basic American principle - that even the most worthy
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
commentary appeared in the Sacramento Bee.