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Anti-Sprawl Laws, Property Rights Collide in Oregon

By Blaine Harden
Washington Post Staff Writer
Monday, February 28, 2005; Page A01

HOOD RIVER, Ore. -- The nation's strongest laws against sprawl are beginning to buckle here in Oregon under pressure from an even stronger, voter-approved law that trumps growth restrictions with property rights.

In a collision between two radically different visions of how cities should grow, claims under Oregon's new law are pitting neighbor against neighbor, rattling real estate values, unnerving bankers and spooking politicians.

Heather Blaine-McCurdy says developing adjacent land for housing would force changes in the way she and her husband operate their pear orchard. (Photos Blaine Harden -- The Washington Post)

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The property-rights law, which was approved overwhelmingly by voters last fall and is known as Measure 37, is on the brink of wrecking Oregon's best-in-the-nation record of reining in sprawl, according to state officials and national planning experts. They say the new law illustrates a nationwide paradox in public opinion: Although voters tend to favor protection of farmland and open space, they vote down these protections if they perceive them as restrictions on personal rights.

"Measure 37 blew up our land-use system," state Sen. Charlie Ringo, a Democrat from suburban Portland, declared while presiding over a tense, standing-room-only hearing on the law that was held recently here in Hood River, a resort town in the Columbia River Gorge.

The law compels the government to pay cash to longtime property owners when land-use restrictions reduce the value of their property -- or, if the government can't pay, to allow owners to develop their land as they see fit. Because there is virtually no local or state money to pay landowners, Measure 37 is starting to unravel smart-growth laws that have defined living patterns, set land prices and protected open space in this state for more than three decades.

Although the unraveling is being watched with alarm by smart-growth advocates across the country, it is exactly what local backers of the new law say they want as recompense for what they describe as years of arbitrary bossiness in the enforcement of land-use restrictions. Smart-growth laws attempt to direct development to areas served by existing roads and utilities and curtail new housing and business construction that will sprawl out to rural areas.

"If you are going to restrict what someone can do with his land, then you have to pay for it," said Dale Riddle, vice president for legal affairs at Seneca Jones Timber Co., an Oregon firm that was the largest donor to the campaign for Measure 37.

Thanks to Oregon's new law, anti-sprawl legislation has lost political momentum across the country, according to Harvey Jacobs, a professor of urban planning at the University of Wisconsin. "It has really excited the property-rights movement and suggests to its supporters that they can challenge smart-growth laws everywhere," he said.

In the Washington suburbs, where only Maryland has passed smart-growth legislation, momentum for the enforcement of those laws began to wane under Gov. Robert L. Ehrlich Jr. (R) well before Oregon voters approved Measure 37. Ehrlich cut funds for acquiring open space, eliminated a smart-growth secretary from his Cabinet and, critics say, supported road projects that encourage sprawl.

Land-use restrictions first began to trigger a national voter backlash in the early 1990s, when a number of states -- Florida, Texas, Louisiana and Mississippi -- passed property-rights laws to protect landowners from monetary losses caused by zoning. But none of these laws was broadly written and none has had a significant impact on local land-use regulation, according to John Echeverria, executive director of the Georgetown Environmental Law and Policy Institute.

Oregon's new law packs a much more powerful punch.

"It is in a different universe," Echeverria said. "It has unleashed a whirlwind. Every single piece of evidence that has come down shows that this measure is destroying the state's land-use system."

In addition to being powerful, the new law is also proving infectious.

A nearly identical bill has been introduced this year in the Montana legislature. In bordering Washington state, which is second only to Oregon in the toughness of its land-use laws, farm and building lobbies are working to put a similar initiative on the state ballot.

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