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Passage Of Measure 7 Plugs An Unfair Loophole --
Brings Much Needed Balance To Land Use Regulations

By Bill Moshofsky, Oregonians In Action

Despite a highly funded campaign of misinformation and distortion against Measure 7, Oregon voters approved this property rights measure. It requires that government compensate landowners when regulations reduce the value of their property. It forces government to pay when it "takes" private property by denying its use -- just as it does when it "takes" property for a building site, road or park.

Measure 7 plugs a loophole that evolved because of a bizarre court interpretation of the Constitution which provides that "no private property shall be taken for public use without just compensation."

Here’s what happened.

The courts do require government to compensate landowners when government acquires land by physically occupying it (i.e., taking possession ). Government must pay full value for whatever it acquires.

But, when government acquires an interest in land by imposing regulatory restrictions on the landowner’s right to use his land (to provide wildlife habitat, viewscapes, open space, or whatever), the courts take an entirely different approach. Generally, the courts require compensation to landowners only when the regulations deny "all use" of the land. This means that government can literally confiscate over 90% of the use and value of private land and pay nothing -- i.e., no compensation for "partial takings."

The famous Dolan case illustrates what’s happened. The City of Tigard required the Dolans to give up 10% of their land for a public bike path as a condition to getting a permit to expand their plumbing store. Ultimately, the U.S. Supreme Court held this was an unconstitutional "taking" because the condition was not proportional to the impact of the development. But -- to put this in perspective -- if the City had simply imposed a streamside buffer (with no physical occupation of the land), Dolans could not have challenged the "taking" because they could still use 90% of their land.

This is grossly unfair and inconsistent. Land has no value if the owner can’t use it. For landowners, the impacts of "regulatory" takings and "physical" takings are the same.

Ask Ed Cox who owns a residential lot in Portland on which the city imposed "environmental" overlay restrictions that reduced the value of the lot from $50,000 to $2,000.

Ask Belva Coblantz an 83 year old widow who owns 5 acres in St. Helens zoned for residences (like land around her) -- but the state now says over half her land is unbuildable because it is "wetland" (damp a couple weeks during the growing season).

Ask a disabled worker who owns land in rural Oregon that was buildable when he bought it. Thereafter, it became unbuildable because it was zoned "forest" even though foresters say it is worthless for timber growing.

The list goes on.

Using the "regulatory" loophole, governments at all levels are imposing all kinds of regulatory restrictions on the use of private land to benefit the public. The objectives are or may be justified. But that’s not the issue. The issue is whether individual landowners or the public should bear the burdens of achieving the objectives -- is it fair or right to deny a landowner the right to live on his own land to provide habitat for wildlife the public desires?

Measure 7 not only plugs the loophole in takings cases, it finally implements a section of the 1973 "land use planning" law Governor Tom McCall and the Legislature enacted. That section required a program to compensate landowner for losses caused by land use regulations -- a section that was never implemented.

Opponents are already backing away from their grossly exaggerated and inaccurate claims that Measure 7 would be extremely costly, outlaw zoning, bust urban growth boundaries, take away beach access and protection, etc.
 
 

The measure has passed. Let’s work together to make it work, to bring much needed fairness and balance to land use regulations throughout the state.

(Bill Moshofsky is Vice President, Government Affairs, Oregonians In Action is a statewide, nonprofit organization seeking protection for property rights and balance and realism in land use laws and regulations.)