Oregon’s Property Rights Law Kicks In, Easing Rigid Rules

By TIMOTHY EGAN
New York Times

July 25, 2006

BEND, Ore. — With 50,000 acres of lakes, lava flows and otherworldly rock features that offer a peek into central Oregon’s geologic tumult, the Newberry National Volcanic Monument is one of the more theatrical of the nation’s protected natural wonders.

In the eyes of James R. Miller, who owns a doughnut hole of private land inside the monument, all that volcanic energy just below the surface makes the big caldera a perfect place for a pumice mine and power plant.

And under a landmark property rights law enacted by Oregon voters two years ago, Mr. Miller now says the government must allow him to go ahead with his development or pay him $203 million in compensation.

The claim may be the biggest yet among hundreds of filings by Oregon property owners since voters approved Measure 37, the property rights proposal, in 2004. The measure says that when land rules reduce the value of property, the government must compensate the owner or waive the regulations.

Voter approval of Measure 37 was a shot heard around the property rights world. Several states, including neighboring Idaho and Washington, now have similar measures on their ballots this fall.

The Oregon law could remake the face of the state, where some of the most restrictive land-use rules in the nation are designed to keep forest and farm areas intact and cities compact. After a bumpy ride through the courts, backers of the measure were handed a clear victory this year.

Government officials say the measure has essentially knocked out “the Oregon way,” the distinct set of rules that have long angered many property owners but delighted the urban-planning community. It has made for chaos at the county level, many officials say, by taking away local government’s ability to plan for development in an orderly fashion.

In some suburban neighborhoods, residents say property claims would allow gravel pits, industrial plants and used-car lots to be built next to their parks and homes. And some farmers say Measure 37 threatens Oregon’s rural economy.

“One thing is clear,” Sheila A. Martin, a professor of urban planning at Portland State University, wrote earlier this year in a report on the initiative, “Measure 37 has disabled the tools used over four decades to prevent sprawl and preserve agriculture and forest land in Oregon.”

Since the measure was approved, Oregon property owners had filed 2,755 claims covering 150,455 acres, according to the university’s Institute of Portland Metropolitan Studies, which is tracking the measure’s impact. If all the claims were paid, state officials say, it could amount to more than $3 billion in compensation. But not a single claim has been paid, the institute reported.

Instead of paying property owners, local government agencies have routinely chosen to waive the regulations, clearing the way for numerous developments in rural areas.

“They want to put all these five-acre lots and build houses right in the middle of our valley,” said Bill Rynearson, a farmer who lives near La Grande, in northeast Oregon. He has been fighting a developer’s request to build a housing subdivision on 1,750 acres.

But supporters of the measure, which was approved by 61 percent of voters, say that the worst fears of opponents have not been realized, and that the law simply gives Oregon property owners the right to basic compensation when regulations harm the value of their land.

“This has turned out to be the most overhyped measure in the history of Oregon,” said David Hunnicutt, president of Oregonians in Action, which sponsored the initiative.

The number of claims was inflated, Mr. Hunnicutt said, because a single claim against both the state and county was counted by the Portland Institute as two. The real number is closer to 1,500, he said.

The imperious nature of Oregon’s slow-growth regulations brought on a backlash, Mr. Hunnicutt said, adding that voters fully understood the implications of countering those rules. “The mess created by Oregon’s land-use laws led to the passage of this measure,” he said.

While other Oregon groups have reacted with outrage to the request to drill and mine inside the Newberry national monument, Mr. Hunnicutt defended the landowner’s demands and said there were remedies that could keep the scenery intact.

The active volcano was made a national monument in 1990. Deschutes County, which regulates property in the surrounding area, designated Mr. Miller’s property as open space in 1992, limiting development.

A resident of Portland, Mr. Miller said he had had an ownership stake in 157 acres just south of here since 1969. “You could get a really good-sized geothermal plant in there,’’ he said, “and the only thing you’d see from afar is a big cooling tower with a nice little plume.”

Across Oregon, which has been accustomed to the praise of out-of-state groups that hold the state up as model for how to grow without destroying the state’s special features, the unraveling of the political consensus on property compensation is the subject of much soul-searching.

Oregon has protected more farmland than any other state, environmental leaders say, but it has lost the support of many farmers for those regulations.

“We’ve learned something,” said Elon Hasson, of 1,000 Friends of Oregon, an active antisprawl group. “It’s clear that some people have been hurt by the laws, and there needs to be a way to deal with that.”

Polls taken since Measure 37 was approved show consistent support for Oregon land-use regulations. But they also show that people want protection for private property and compensation for government actions.

“Oregonians are saying they want it all,” said David Bragdon, president of the Metro Council, which oversees many government functions in the Portland metro area. “They want to be able to eat chocolate cake three times a day and never get fat.”