Wednesday, August 30, 2006

OR's Prop-Rights Lesson Is WA's Better Angel

I suppose this isn't a story about Oregon per se, but we're anti-authoritarian at LO, and it does have some relevance to the state. For better or worse, Oregon is a national leader in bellwether legislation, and although its star has faded somewhat recently in that regard, it's still the home of the bottle bill and death with dignity and all-public beaches. And now, based on the number of eyes watching the fallout from implementation of Measure 37, Oregon's recent take on land-use issues is becoming bellwether legislation--a law that influences other states one way or the other in their own legislative efforts, based on the bellwether state's experience with it.

Every time one state jumps a bit off the grid, similar-minded legislatures in other states want to copy the original, like NFL coaches trying the Run n Shoot offense or '46' defense. For instance, Oregon is currently part of a multi-state rush on TABOR-style spending limit legislation, ironically based on a bellwether from over 10 years ago that Colorado has actually stopped using. But TABOR efforts are going on all over the country. Another example would be South Dakota's full ban on abortion. Several states are watching the legal scrum going on there, with an eye to trying it for themselves.

So it was with great interest to see this item from The Oregonian, liberally copped and digested from a earlier Seattle Times piece two days beforehand:
The Washington Association of Realtors says its members are deeply divided on I-933. The head of the Master Builders Association of King and Snohomish Counties says the initiative is poorly drafted and could create as many problems as it solves.

Western Washington University political scientist Todd Donovan says those organizations' minimal involvement in the I-933 campaign may signal they have made their peace, to some extent, with the land-use and environmental laws that pushed them into the property-rights camp a decade ago.

"The Growth Management Act has been around a long time," Donovan says. "It's the status quo now."

Aaron Toso, spokesman for the anti-933 campaign, said many in the building and real-estate industries share opponents' concerns that the initiative would create regulatory chaos: "They see this is going to be costly and bring instability to the real-estate market."
These concerns didn't just materialize out of thin air--they've been watching what's gone on in Oregon, with all the claims and counterclaims and overwhelmed county offices and capricious decisions, and are understandably wary about copying the idea. And make no mistake; the petitioners are explicitly copying M37:
Initiative 933 was inspired by a similar measure Oregon voters approved in 2004. In many instances, it would require state and local governments to compensate property owners when regulations reduce property values — or governments would have to waive those rules.

Regulations to which the initiative's pay-or-waive requirements would apply include those that:

• Require that any portion of a property remain in its natural state.

• Restrict logging.

• Prohibit any uses that would have been legal before 1996.

I-933 is reminiscent of a measure that reached the Washington ballot in 1995 as Referendum 48. It would have required government to compensate landowners for regulations imposed for "public benefit" that reduced property values.
1996? That's an even broader recipe for trouble than Oregon's. Oregon bases its claim structure on rezonings or redrawings that happen after the landowner purchased the property. Washington's is apparently a blanket waiver on any rule promulgated since 1996, whether you lived there to be affected by it at the time or not. That's a lot larger pool of potential claimants, given how many people spend 10 years owning property (as opposed to 30 years or more, back to the genesis of most of Oregon's land management laws).

The hard facts of implementation in Oregon--particularly the issue of transferability, whereby the waiver, once secured, could be passed to a new owner for development--have effectively jolted builders from their dream of new territory ready for unfettered constructuion. The reality turned out to be just one more layer of delay and court battles in trying to get something built, one more set of paper hoops to jump through and one more set of lawyers to retain.

Astutely, from this report the building and housing industry in Washington therefore isn't gnashing its teeth for passage of I-933. Their lack of support (read: money) can only be the result of seeing Measure 37's effect on Oregon, and not liking what they see. The article tries to foment the idea that part of the lack of fight is the result of builders and developers giving up the ghost and being resigned to working under some framework of land-use rules. But their slip shows a bit--rather more cravenly, they like their profits and litigation savings better the old way:
[BIAW Exec VP Tom McCabe] said some builders are more comfortable now than they were 11 years ago operating under the state's 1990 Growth Management Act, which established urban growth boundaries and severely restricted development beyond them.

"Let's just say there are some builders that do very well when property values increase," McCabe said.[emph mine]
Are you listening, Oregon?

Update, 3pm--
In my typical late-night, half-assed way, I neglected to root around for other points of reference supporting my contention that other states are watching Measure 37's implementation warily. I should have stopped by the nicely focused blog Land Use Watch, and followed some of their coverage. I would have found and relayed items such as a Columbian editorial by the editor emeritus,warning against I-933:
Look at Oregon: After Measure 37 was passed Nov. 2, 2004, and upheld by the Oregon Supreme Court, 1,994 claims were filed, seeking $4.2 billion in compensation. That is the summary through July 7, 2006, according to the Oregon Department of Land Conservation and Development.

Then check out for Measure 37 effects: Bill Rose, who lives 20 miles south of Portland in the Willamette Valley, supported the measure to relax regulations. Now, a neighbor has filed a claim to convert a 40-acre berry farm into 280 houses. "Measure 37 will destroy this valley the best place to live and farm that I know of," Rose said.

Renee Ross of Molalla, southeast of Portland, liked Measure 37. Two neighbors filed claims, one to build 10 houses on 60 acres, and the other for a gravel mine on 80 acres. Clackamas County approved both. Ted Schroeder, a doctor in the Grande Ronde Valley of northeast Oregon has serious regrets: " People got bamboozled, they got suckered in. I kick myself for being so naive."
Via 1000 Friends, there's also the good news that another similar measure failed in Napa County, CA. And guess what the locals cited as the reason for such a strong defeat?
“When we looked to what has happened in Oregon, Napa voters saw through this irresponsible attempt to dismantle community protections and voted it down,” said Nicole Arnold, Solano-Napa Field Representative for Greenbelt Alliance, the Bay Area land conservation and urban planning non-profit organization.