Monday, December 06, 2004

Something else to be depressed about from the election

In 1973, last Thursday's Christian Science Monitor reported, then-Governor Tom McCall warned the Oregon state legislature
that "coastal condomania, sagebrush subdivisions, and the ravenous rampage of suburbia ... all threaten to mock Oregon's status as the environmental model of this nation."

That year, Oregon enacted requirements that local plans meet statewide growth and planning goals. Several years later, a Land Use Board of Appeals was created to settle local land use disputes. Over the years, nearly a dozen states (among them, Florida, Georgia, Hawaii, Maine, Vermont, and Washington) adopted strong land use laws as well.
Most of those programs, including Oregon's, actually worked quite well in reducing sprawl and loss of open lands and farmland. But alongside those efforts grew a so-called "property rights" movement, wrapped in the rhetoric of individual freedom and fairness that cloaked an agenda holding that greenbacks for the few are more important than green fields for the many. It's argument is based the so-called "takings" clause of the Fifth Amendment - the one that says private property is not to be taken for public use without adequate compensation. Traditionally, such a "taking" was understood to be just that: actually taking land from its owner to use for a school, a road, a post office, whatever. But the greedheads behind "property rights" argue that any government regulation that reduces the market value of property is a "taking" under the Constitution for which the owner must be compensated, even as they continue to hold and make use of that property.

Consider, for example, a town by-law increasing the minimum size of a house lot. Under this logic, any property owner whose land could be subdivided could go to the town and say that because it could now be subdivided into fewer lots, it's worth less than before and so the town has "taken" an amount equal to the difference between those two figures. "And I want compensation!" Note that they do not actually have to sell the land or even contemplate selling it, nor have they actually lost anything tangible: They still own the land. And, in fact, they still can profit by its sale. But that, we're told, is not good enough. They've lost the possibility of additional future profit and therefore, it's pay up!

In November, Oregon, sadly, ran afoul of that movement as 60% of voters fell for the b.s. and agreed to overturn the state's land use law.
Now, local officials must either compensate owners for regulations that reduce a property's value or waive those restrictions.
The latter being the real purpose here. It's hard to imagine any regulation, anything that puts any restrictions on how a piece of land is used, which could not be labeled as reducing its market value. (The inconvenient fact that many land-use restrictions have ultimately increased land values by making the locality a more attractive place to live is a rude intruder that will not be allowed to enter the discussion.) The result - the intended result, I say - is to make it impossible to regulate land use, giving developers and other dealers in greed a free hand.

One possibly mitigating factor would revolve around how the changes might be interpreted in the sure-to-come court battles. (I say possibly because I don't know the details of the changes, so perhaps this option was closed off.) It would seem to me entirely reasonable to say (unless the measure specifically says otherwise) that no existing regulation is affected at least as applied to any land which has changed hands since 1973 - because that transaction took place under the land use law and the restrictions that it allowed, and property owners can't reasonably claim to have lost value they could not reasonably have expected to gain.

But the more important point here is that
approval of the controversial ballot measure here also signals what is likely to be a nationwide examination of government efforts to prevent sprawl, preserve farmland, and protect vistas.
Not to mention endangered and threatened species, as the Endangered Species Act, which also puts restrictions on human activity in vital habitat, is another target of the money-hungry using the same sort of illogic.

Just one more battle to be fought, one more front to be engaged. And in one sense, these are "now or never" battles: How much land do you know of which has been developed and then undeveloped? How many extinct species have reappeared?

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