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Sunday, May 29, 2005, 12:00 a.m. Pacific

Guest columnist
Washington must resist the lure of Measure 37

By Joseph W. Tovar
Special to The Times

According to popular Northwest myth, as they approached Fort Hall in present-day Idaho, immigrants traveling the Oregon Trail reached a fateful fork in the road. A pile of fool's gold marked the southern trail that led ultimately to California, while the northern route was posted with a sign that read simply, "To Oregon." The greedy and illiterate went on to California, while those who could read settled the Oregon Territory.

This wry sentiment resonated in 1971 when Gov. Tom McCall invited his southerly neighbors to "please visit, but don't move here." Later that decade, a popular bumper sticker pointedly urged: "Don't Californicate Oregon."

Since the Nov. 2 elections, Californians may be sporting bumper stickers of their own — warning about the perils of emulating Oregon.

On that date, Oregon voters passed Measure 37, the so-called property rights law. The ballot title seemed simple and fair on its face: "Governments must pay owners, or forgo enforcement, when certain land-use restrictions reduce property value."

However, on closer inspection, the measure is far from simple. It is undemocratic, unworkable, and unfair. It tilts the regulatory balance way off the scales in favor of the development aspirations of certain property owners at the expense of the quality of life for all residents of the state.

What does this portend for us in Washington? Will such a property-rights law migrate across the Columbia? Would our voters support such an initiative? How do we guard against the enactment of such a similar approach to perceived inequities in our state's land-use system?

Answering these questions requires a brief review of Oregon's experience, the constitutional limits on land-use regulation in America, and our own recent history with growth management and property rights.

While gold mining actually did play a minor part in Oregon's history, the state's economy was built on agriculture and forestry. Farming communities thrived in the Willamette Valley and timber towns dotted the forested mountains and Pacific coastlands. Astoria, and later Portland, became portals of trade linking the region's markets to the world beyond the Northwest.

Oregon's legacy of strong and distinct communities within working landscapes, and the vision to conserve both in the face of unprecedented growth, came into sharp focus in the 1970s. Under McCall's leadership, Oregon adopted one of the country's first growth-management laws. For almost 30 years, other states looked to Oregon to learn how to reap the benefits of growth without destroying communities and landscapes in the process.

Fast forward to 2005. Seven months into Oregon's new property-rights law, over 500 claims have been filed, leaving local governments with two choices: Allow developments in places where they would otherwise be prohibited, or else pay claims totaling in the millions. Neighbors, investors and lenders can no longer rely on local zoning to assure that subdivisions won't pop up on farmland or Wal-Marts on residentially zoned land. Fire, school and utility districts are less certain about where infrastructure investments should be made.

The Oregonian published an aptly titled article, "All that Measure 37 has developed so far in Oregon is a mess." It summed up the impact of the new property-rights law this way: "The Legislature, the courts and local governments are left to wade through the pandemonium."

The chief land-use restrictions affecting private property in this country are local zoning ordinances, many of which were first adopted in the 1920s and '30s under the authority of state statutes. Most state land-use planning and zoning laws were modeled on standard state enabling acts published during the Coolidge administration by the U.S. Department of Commerce. The department was under the direction of then Secretary of Commerce Herbert Hoover.

The Standard State Zoning Enabling Act provided regulatory power to local legislative bodies; authority to divide the city or county territory into land-use zones with discrete permitted uses; a statement of purpose for the zoning regulations; and procedures for establishing and amending them.

Some may find it ironic that the concept of government land-use restrictions on the use of private property was advanced by two of the most conservative figures in American political history. Yet, when one considers that the meaning of conserve is "to protect or preserve from loss, damage, or neglect," it makes sense that a true conservative would seek to protect the rights and needs of all property owners, through a rational, fair and predictable land-use system.

Property-rights advocates of Hoover's era argued that zoning restrictions on the use of private property violated the "takings clause" of the Fifth Amendment to the U.S. Constitution. That clause reads, "... nor shall private property be taken for public use, without just compensation."

The meaning of the "takings clause" relative to land-use restrictions was answered in 1926 by a landmark U.S. Supreme Court decision in Village of Euclid v. Ambler Realty. The court upheld the constitutional validity of a local zoning ordinance that restricted the use, and therefore reduced the value, of property.

In a string of "takings" cases since then, the Supreme Court has consistently held that local land-use regulations are legitimate exercises of local government authority so long as the restrictions, in the court's words, do not go "too far." The court has interpreted that a regulation goes "too far" when it serves no legitimate public purpose and/or leaves no reasonable economic use of the property.

Proposed laws such as Measure 37 are not needed to assure protection from "unconstitutional takings" because the Fifth Amendment already does that. What such state laws really aim to achieve is a dramatic lowering of the bar for when compensation must be paid. Rather than require payment only in situations when no reasonable economic use remains, such measures would instead require that government pay in all instances when any "reduction in value" occurs.

The number of instances in which zoning restrictions may result in some, but not all, reduction in value is astronomical. Strip malls or casinos would be more profitable for certain property owners than homes in many residentially zoned neighborhoods. Farmlands would have greater market value as subdivisions or industrial parks. Flood plains are attractive locations for car dealerships and truck stops. Building-height caps, billboard bans or construction setbacks from salmon-bearing streams would also "reduce the value" of properties when compared with the absence of such restrictions.

Although the language of Measure 37 states "government shall pay," in reality this means "taxpayers shall pay." In view of the scarcity of tax dollars for needed roads, parks, police, firefighters and libraries, laws such as Measure 37 present communities with a Hobson's choice. As is playing out now in Oregon, cash-strapped local governments would waive enforcement of regulations against claimants — regulations that would continue to apply to everyone else.

It takes little effort to imagine the landscape that lies at the end of this fork in the road: a spot-zoned landscape that could warm the hearts of only those who benefit from sprawl, care little about the environment and are indifferent to the larger community.

Would Washington citizens support a property-rights initiative like Oregon's Measure 37? Two encouraging signs suggest that the answer is no: First, 10 years ago, Washington voters rejected Referendum 48, a similar property-rights measure, by a wide margin. It was even defeated in Eastern Washington counties. Second, recent polls indicate that a majority of Washington voters support the Growth Management Act (GMA), our statewide framework for local planning and zoning. A majority of those polled also believed that the GMA should be more strictly enforced, not less so.

There is nevertheless reason for concern. There was a startling disconnect between Oregonians' support for Measure 37 and their continuing strong support for their state's growth law. They did not grasp that Measure 37 essentially gutted local governments' ability to regulate land use in a predictable, fair and effective way. As the compensation claims continue to roll into city halls and county courthouses, waivers will be issued and the consequences of the voters' disconnect will become all too apparent.

It would be a mistake for Washington to overreact to the specter of Measure 37. Certainly, there is no call to roll back the Growth Management Act, which retains strong support among our citizens. Local governments here typically include "reasonable use exceptions" in their zoning codes to assure that the rules will always leave some reasonable economic use of private property. In the high-growth Central Puget Sound region, the Cascade Agenda is now promoting an ambitious transfer-of-development-rights (TDR) program to help sustain rural landscapes while simultaneously addressing the perceived inequity between rural conservation and urban concentration. Under a TDR program, a rural landowner could transfer (i.e., sell) the development rights to a portion of his or her property to a "land bank," which would then sell them to a receiving site in the urban area.

Meanwhile, many in Washington will be watching with interest as the unfortunate events continue to unfold across the Columbia. We must learn from Oregon's painful experience — and resist the lure of fool's gold like Measure 37 if we are to continue on our path toward a future that is livable, sustainable and fair to all, not just the few.

Joseph W. Tovar is a city management and planning consultant who presently serves as director of special projects at the University of Washington's Northwest Center for Livable Communities. E-mail him at jtovar-@u.washington.edu