Halelujah! Medford Gets it on Measure 39

I'm not one of those people who voiced outrage or even clucked their tongues at the Kelo v New London Supreme Court ruling on eminent domain, mostly because I read it. What one discovers is that the precedent for private-to-private transfer in certain situations goes back to about 1954, and that the much more pressing concern of the founders was compensation rather than protection from acquisition--that government seizure of land wasn't viewed as the affront; usurpation was. It's this theory that helped Measure 37 get over the hump; the process of setting zoning and land use rules came to be described as a form of taking, when of course under Measure 37's rules nothing ever had to be actually taken from you for you to demand compensation for it.

Because of the strong legal precedent for eminent domain, and the willingness of individual states to monitor their own processes--processes over which Kelo declared the states had ultimate authority--Oregon's Measure 39 offers nothing if not feel-good redundancy. Medford's Mail Tribune editorial over the weekend echoes that sentiment:

Americans understand that governments sometimes must condemn private property for the greater public good, such as roads, parks or other public projects. But using the power of eminent domain to benefit a private party strikes most of us as unfair.

If only it were that simple.

In fact, no one has yet to point to a single condemnation in Oregon history that resembles the Kelo case. Eminent domain is used sparingly, usually as a last resort, for obvious reasons. There is no reason to expect that to change.

Also, many exciting and beneficial urban renewal projects involve public-private partnerships, such as Medford's Middleford Commons proposal, Portland's Pearl District and others. Such projects could become virtually impossible to achieve if Measure 39 passes.

The Trib also does an excellent job of pointing out all the little details of ramifications that would quietly change the way things get done, often to the detriment of good public development:

Even strictly public projects are complex, often involving many parcels of property that may pass through other private hands before ending up in public use.

The measure exempts road projects, but in some cases government buys more land than is required for right of way, and needs to sell some of it back to the original owner. The measure would not allow that.

The measure also amends existing law by adding a provision that would cost government, and therefore taxpayers, more money. It says that, in cases of condemnation for public use, if the sale price determined by the court is greater than the government's initial offer, the government must pay the seller's attorney's fees and other costs. Current law provides for such payments, but only if the price set by the court is greater than the government's highest offer, or if the court determines that the initial offer was not a good-faith offer.

This means that, even in the case of a public project, a government would feel pressure to make a high initial offer to avoid paying fees and costs later, or might decide not to pursue the project at all.

Here's another small detail: If your property is condemned through eminent domain, you can take up to two years to reinvest your profits without owing capital-gains tax. If the government has to buy you out without condemnation proceedings, you don't have that grace period.

I think it's actually rather rare for an editorial to be so specific and detail-oriented in terms of assessing the likely impact, and the paper's board should be complimented.

And they're absolutely correct to put a skeptical eye on the measure, because it comes from Dave Hunnicutt of Oregonians in Action, who sponsored the last land-use bill with unintended consequences and unanswered questions that naturally led to lengthy litigation. The Trib does not mention the sponsors, but directly compares the kind of property rights zealotry masked in M37 to the current proposal. The whole nuts and bolts of how cities and communities get built can be altered by one badly worded proposal, but as the Eastern Oregonian reports today, Hunnicutt wholeheartedly admits this is M37 Phase II, and is motivated by his Pleasantville isolationism:

"It's a natural outgrowth of Measure 37 and another example of the threat to private property rights," [Hunnicutt] said. "For most people property means their home and their business, and it's more than just dollars. It's where their families are raised. It's where they sweated and toiled. It's where they have memories."

Like the Tribune editorial, The EastO makes it clear that the things M39 proposes to attack rarely go on anyway, and also are often fairly straightforward transactions that ultimately serve the public good--so why mess with that?

I'm particularly curious to see what the Portland City Club's analysis of this measure turns out to be, because for a time I was on the study committee. I joined the Club to be on one of the committees evaluating the year's initiatives, but because the committee started a bit late and ran smack dab in the middle of my vacation back East, the committee decided I could offer little on the subject once I returned, having missed live witness testimony (and transcripts or summaries apparently not having been invented yet.) Despite the snub, I really appreciate the Club's effort to give serious study and reportage to the initiative process. So it's great to see local papers get more than cursorily involved in things as important but arcane as property rights law.

Update--
Lest Carla believe I don't read her excellent weekly Spanning the State digest, I did see the props given to Lebanon's paper on M39. Not to belittle their work or public reach, but for this piece I was concerned with the major state outlets, of which the Trib and EastOregonian are both members. Kudos to the Lebanese for adding to the chorus, however.