Oregon Gets Taken

Frank Hardin may finally get his chance to dig up the 18 million tons of gravel beneath his land in the foothills of the Siskiyou Mountains. For nearly a decade, Oregon's Jackson County has denied him mining permits in order to keep scores of double-length mining trucks from rumbling through the tiny town of Jacksonville each day. The first town in the United States to be designated a national historic landmark, Jacksonville has more than 80 buildings on the National Register of Historic Places. When Oregon voters in 2000 passed Measure 7, the most radical "takings" initiative in the United States, Hardin filed a $50 million claim against the city and county for reducing the value of his property.

Standing at the mouth of the old Opp Mine, site of southern Oregon's richest gold strike, Hardin complains, "We've been making property payments for 12 years on this for $2,000 a month and haven't gotten a dime in return yet." The truck driver and his mother-in-law bought the abandoned site in late 1989 to open a gravel mine. "We'd still prefer to operate the property as what we intended for when we bought it, but if we can't do that, then we would hope that Measure 7 would force the county to purchase the property for fair market value and we could go do something else," Hardin says.

The Fifth Amendment of the U.S. Constitution declares that private property shall not "be taken for public use, without just compensation." Under Measure 7, most government actions in Oregon that reduce property values would be declared takings of private property. As a result, the state government and local ones across Oregon would face a stark choice: Pay property owners for the alleged harm caused by regulations or stop having a say in how Oregonians use the land.

Measure 7 has been tied up in lawsuits, and it is now before the Oregon Supreme Court. But if the measure survives, the most likely result would be a wholesale rollback of land-use regulations. Hardin's mine would send loaded gravel trucks down Jacksonville's historic main street, reducing the gold rush-era town's quality of life and its ability to draw visitors. Ironically, this outcome would likely reduce private-property values in a town dependent on tourism.

Jacksonville Mayor Jim Lewis, one of the co-plaintiffs in the lawsuit challenging Measure 7, says the town coffers couldn't possibly pay Hardin's $50 million claim. "We have no money for it," he explains. "Measure 7 would impose such high economic risk on a city or county or any other jurisdiction involved in land-use decisions that it would basically put them out of business in that field, and that's not what we need or want in Oregon."

The state government estimates that claims under Measure 7 could cost it $5 billion a year. Its supporters say these are just scare tactics. But the takings initiative could cripple Oregon's land-use protections. Before Measure 7 was tied up in a lawsuit, more than 60 local governments in Oregon adopted ordinances allowing them to waive any regulation for which they would rather not compensate property owners.

Ever since it passed the nation's first statewide land-use planning law in 1973, Oregon has been recognized as a leader in fighting sprawl and building livable communities. Among the many results of the state's comprehensive land-use law, every city in Oregon has an urban-growth boundary aimed at protecting farms, forests and coastlines from becoming tomorrow's subdivisions. Zoning that excludes affordable housing is illegal throughout the state. By integrating transportation and land-use planning, the Oregon law has also reduced the state's automobile dependence and has fostered a strong tradition of citizen involvement in land-use planning: 90 percent of people in Portland can tell you that "UGB" stands for urban-growth boundary.

Portland has become a mecca for urban planners. Since initially tearing down a freeway along the Willamette River and replacing it with a riverfront park, the city has successfully revitalized its downtown and become an icon of urban livability, with pedestrian-friendly neighborhoods of old houses, apartments and shops connected by bus, light-rail and streetcar lines. Despite projections of rapid population growth, regional planners intend to build less than 40 new miles of highway in the next 40 years.

David Bragdon, a councilman with Portland's Metro, the nation's only elected regional government, says that if Measure 7 survives legal challenge, Portland's successful urban design and livability would be at risk. "It would end land-use planning as we know it," he says.

Measure 7 is part of a crusade by conservative intellectuals and industry lobbyists to stretch the U.S. Constitution's stricture on the physical taking of property (as when government uses eminent domain to condemn land for a new highway) to apply to the mere regulation of property. This effort began in the mid-1980s, when conservative legal scholar Richard Epstein of the University of Chicago proposed the concept of "regulatory takings" as a novel means to rein in the modern state.

By the early 1990s, nearly every state legislature had debated takings measures. About half adopted some type of takings law, though most were largely symbolic and none was as extreme as Measure 7. The sweeping anti-takings provisions of Newt Gingrich's Contract with America passed the House of Representatives three sessions in a row, but not the Senate. The North American Free Trade Agreement's potent but little-noticed Chapter 11 (which allows foreign investors to sue a national government if their company's assets, including anticipated profits, are damaged by virtually any kind of law or regulation) enshrined into international law what property-rights advocates could not achieve at the federal level. [See Chris Mooney, "Localizing Globalization," TAP, July 2, 2001.]

Since then, the property-rights movement has won court victories -- ending only this April when the U.S. Supreme Court rejected the argument that temporary bans on construction should be considered takings of private property -- but its legislative campaigns ran out of steam in the mid-1990s. No state has passed takings legislation or initiatives since then -- except Oregon.

Measure 7's victory took many observers by surprise. It was the nation's only takings measure in 2000. Property-rights-movement watcher John Echeverria of Georgetown University Law Center called Measure 7 "the last gasp of a bad idea," and it attracted little press attention or attack advertising. Environmentalists blame a November 2000 ballot crammed with 26 statewide initiatives, not to mention the heated Bush-Gore presidential contest, for letting Measure 7 slip under voters' -- and most activists' -- radar screens. But property-rights advocates see the victory as a backlash against overregulation.

Even if, as many legal observers expect, the Oregon Supreme Court rejects Measure 7, Oregon's land-use planning programs -- models for sprawl fighters around the nation -- are at risk. Last fall the property-rights group Oregonians in Action (OIA) and other conservative backers of Measure 7 filed several statewide initiatives -- all aimed at reviving Measure 7's provisions should it be overturned -- in anticipation of the court's ruling. Environmentalists filed several of their own aimed at nullifying Measure 7 should the court fail to do so. (Oregon makes it so easy to file ballot initiatives -- it takes only 25 signatures to file an initiative with the secretary of state -- that political groups often indulge in what's known as "ballot title shopping": They file multiple initiatives before deciding which one to campaign for in hopes of getting it on the ballot.) Though the deadline for gathering signatures for this November's ballot passed in July without a court ruling, both sides are sure to continue the Measure 7 fight into next year.

Dave Hunnicutt, OIA's director of legal affairs, warns that even if Measure 7 is struck down on a technicality, it's only a matter of time before the state Legislature, or voters themselves, correct what he sees as the fundamental unfairness of Oregon's efforts to channel growth into existing communities and away from undeveloped areas. "If we continue on with the same scheme we have now, whether it's my organization or the home builders, somebody's going to come along and blow up the system, and I don't think that's in the best interest of any of us," he says. OIA has tried to use the threat of Measure 7 as a bargaining chip to get legislators to weaken Oregon's land-use program but has been unsuccessful to date.

But the right-wing group is nothing if not dogged. It has pursued its agenda on behalf of rural industries and property owners through litigation, lobbying and a political action committee. This year it expanded into urban metropolitics by running an (unsuccessful) initiative campaign to strip Portland's Metro of its ability to influence how densely neighborhoods and cities develop. It has also started running its own candidates for key races. Hunnicutt, who is prone to vitriol as far as government planners are concerned ("Metro's concept is that the masses are stupid," he told the Portland Oregonian. "If they don't direct planning, the masses will screw it up, and the region won't be livable."), ran for appeals judge and lost in the primary in May. This November, property-rights activist Kate Schiele will face off against Metro councilor Bragdon in the race for Metro president. The contest will essentially be a regional referendum: the Portland model of urban planning versus the right's vision of property rights unfettered by community values or responsibilities.

Oregon politics has its idiosyncrasies, not least of which are its green leanings and its strong tradition of passing ballot initiatives. (Of the 24 states that use the initiative process, only California comes close to passing as many ballot measures as Oregon does.) Yet sprawl watchers nationwide take a keen interest in the state's property-rights battles. If Oregon's pioneering and widely imitated land-use program is taken down, it will set back efforts to protect open space, fight sprawl and promote affordable housing around the nation, according to Robert Liberty of the pro-planning group 1000 Friends of Oregon. "Many other states and regions have looked to Oregon for ideas and leadership on stopping sprawl and replacing it with smart growth, and that example would come apart before their eyes," Liberty says. "I think it would set back the smart-growth movement by years if not decades." Indeed, if "no regulation without compensation" can become law in Oregon, it can happen anywhere.