‘We’ve got a partnership’: A history of Oregon land use law

By SAM LOWRY

For the Hood River News

November 11, 2006

The history of planning in Oregon tells of a unique effort, imperfect but honest, to preserve something huge and desirable — the physical character of a state — by pushing against powerful societal currents.

The effort has alienated many, and now finds itself between the devil and the deep blue sea. A debate has raged for a decade: Is the vision workable in a society of dynamic, mobile, maximizing individuals?

Three legislatures have failed to find compromise between conservation and development, centralizion and decentralization. Yet as 2006 draws to a close, ten citizens — the Big Look task force — try once again.

With hopes and expectations rising, maybe rightly this time, citizens are galvanized into forming opinions about land use issues, many for the first time.

Attorney Ed Sullivan says that Measure 37 — the subject of the series of which this thumbnail history is a part — heralds “the passing of an era, though perhaps it was time to move on to another planning paradigm in any event …”

For everyone forming opinions, that era is one worth knowing.

American-style planning and zoning are turn-of-the-century innovations. When the U.S. Supreme Court found zoning constitutional in 1926, the practice had spread from New York to the nation, its template — shockingly unchanged today — developed by then-Commerce Secretary Herbert Hoover. Oregon, though remote, had land law and zoning as early as anyone.

When the post-war boom hit, the under-populated state, conservative but progressive, reacted. Environmentalism started out conservative and conservationist, spurred by the agricultural community, a legislator who dropped mill effluent on the Senate floor in 1961, and a loud-mouthed Republican newscaster named Tom McCall.

In the late Sixties, despite a new youth-oriented movement, environmental legislation stayed mainstream. While the Nixon White House presided over sweeping pollution controls, Oregon launched the nation’s second statewide land use planning program, in 1969, with passage of Senate Bill (SB) 10.

The program always was a reaction to California’s post-war urbanization. Fear that development pressure could unstoppably convert farms to suburbs motivated both homegrown legislators and citizens who’d come for the beauty. The fear became a xenophobic mantra against California.

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Some say planning in Oregon was never a “movement,” but its birth generated energy and enthusiasm, Oregon identity, national attention, activists, devotees — and instant controversy. The program has rarely been on solid ground.

But it was strong out of the gates. If there are legendary events (besides riveting speeches by McCall, elected governor in 1967), they were passage of SB10’s follow-up, Senate Bill 100, in 1973, and the constituency-building road show that followed.

SB10 required cities and counties to develop comprehensive plans meeting 10 broad goals; proponents feared it was unenforceable. In his 1970 re-election campaign, McCall called for its strengthening while voters rejected repeal, 55 to 45 percent.

Once both survived, State Sen. Hector MacPherson, a Linn County dairy farmer, set out to make good on McCall’s promise. Ignoring efforts by Senate leadership to shelve the topic, he and McCall staffers redrafted the bill.

As the ’73 session opened, Sen. Ted Hallock got his wish to head a committee responsible for the new bill. Due to bad blood with the senate president, he also got four (of seven) committee members certain to vote “no”; compromise was the only option.

Most of today’s debates are traceable to that session’s wrangling. Hallock passed the state-focused program existing today, but only after thrashing out four key issues: local control, regionalization, public involvement, and agricultural lands.

He and MacPherson recognized they had to forego state-controlled planning, in favor of local control within state guidelines. Also out the window was regional authority, through Councils of Government. The cities had them; the rest of the state didn’t want them. “Counties are ordained by God, you understand,” MacPherson said later.

With the state and counties the only major players (cities had to coordinate with counties), focus fell on the 10 goals inherited from SB10. They would be the program’s constitution — and the state’s main leverage. Define them narrowly in session and the bill would get argued to death. The answer: Go to the people. Crafting the goals would take place later, through public input.

This meant citizens would decide the fate of resource land preservation. An SB10 goal was to preserve “prime farmland,” but that was provisional. The framers had it in mind there was more to it than that.

L.B. Day, a Republican senator and cannery union official, suggested the public process; appointed chair of the first Land Conservation and Development Commission, the citizen board created by SB100, he put his money where his mouth was. Day led 76 hearings around the state in 1974, receiving 60,000 comments that were crafted into 14 revised goals (five more were added by 1976).

MacPherson trusted local control. “We’ve got a partnership here,” he said later. “We’re not trying to take over.” Others thought county commissioners wouldn’t resist pressure from developers. Governments exist “to protect us from our unbridled selfishness that allows us to screw everybody and gobble up the planet,” Hallock said.

The citizen-crafted goals, and the LCDC, left the state with a lot of clout.

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The Seventies were raw and heady as planning an entire state fell to teams of county planners, many young and inexperienced, armed with aerial photos, soil maps, the new state goals, and conviction. The basic model was simple: urban uses belonged inside cities and towns, each (even the tiniest) with its urban growth boundary. Everything else should be farm and forest; most of it really was.

Rural residential development quickly became an anathema. Planners knew how desirable “five acres and a creek” could be (McCall had excoriated “sagebrush subdivisions”). They also saw how enclaves of houses already dotting the rural landscape used up land, had water and septic troubles, and conflicted with neighboring farmers. They sensed pressure for more would perpetually mount — a slippery slope.

From the goals evolved the “exceptions” process. Blocks of land already committed to non-farm (and non-forest) patterns became the places for rural residences; a jurisdiction could take an “exception” to Goals 3 and 4, governing agricultural and forest land. Small lots and non-farm dwellings outside these areas would be restricted.

From this, the state program’s central tenet — resource land there, non-resource land there — evolved, arguably, the most rationally, productively, attractively laid-out state in the union … and enough upset to engender an entire Western property rights counter-movement.

The real estate industry was not pleased. Neither was the timber industry; for them, by rights, land was a commodity. Bill Moshofsky, a timber executive, thought the evolution from saving “prime agricultural land” to restrictions on all agricultural (and forest) land was wrong. Many agreed.

In 1976 and 1978, initiatives tried to repeal SB100. Opposing them was a newly formed land use “watchdog” group, 1000 Friends of Oregon, founded in 1975 by McCall and Henry Richmond, a Portland attorney. But the 1974 road show had been effective in persuading citizens that planning was, on balance, good; both initiatives failed.

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Another came in 1982. Governor Vic Atiyeh (a “no” vote on Hallock’s committee), feeling pressure, appointed a group chaired by Stafford Hansel to find out how the program was doing. After 400 interviews, the skeptical committee found broad support — and no businesses avoiding Oregon as feared. They chided government heads for shirking collaboration with planners. The third repeal attempt also failed.

Land use disputes have long been settled in courts. Local commissions have “quasi-judicial” authority but appeals go up the chain. Oregon created the specialized Land Use Board of Appeals in 1979, resulting in consistent case law (and as PSU historian Carl Abbott notes, a legalistic system); still, further appeals go to state courts and, occasionally, to the U.S. Supreme Court.

One such was Dolan v City of Tigard; in 1994 it publicized the question of regulatory “takings.” Five years before, Moshofsky had persuaded the citizens’ rights group Oregonians in Action to focus on land use. When the Dolans objected to city demands to dedicate a bikeway in exchange for building permits, OIA helped them appeal clear to the highest court. They won: Justice Rehnquist said such an exaction must be “roughly proportional” to a development’s impact. Property rights advocates were emboldened.

It was a bad moment for the Land Conservation and Development Commission — still fighting residences on farmland — to tighten restrictions. In 1993 they’d upped minimum lot sizes in most Exclusive Farm Use zones to 80 acres; in 1994, tired of supposed farms becoming suburbs on giant lots, they imposed a net farm income requirement of $80,000 for dwellings to be built.

The effect was to switch standards, from preserving development patterns to prescribing activities. Planners had to say “no” to longtime landowners who’d always been told they could build.

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By the mid-1990s, Oregon’s program was in considerable trouble. Measure 5 in 1990 limited property taxes and funding for state programs, including planning. The 1995 legislature clipped the system’s wings; 1996 saw Measure 47, the “Son of 5,” further limit funding; 1998’s Measure 57 required public notice of rules that might lower property values.

Planning proponents soldiered on: The Oregon chapter of the American Planning Association sponsored a “Statewide Planners’ Dialogue” in 1997; Gov. John Kitzhaber commissioned two reports in 1999, harking back to the McCall era: Choices for the Future, from the Willamette Valley Livability Forum, a public officials’ group; and Growth and its Impacts in Oregon. Neither made a splash.

Oregonians In Action placed Measure 7 on the 2000 ballot, written to require compensation for regulatory takings, including zoning. Ads featured Dorothy English, an elderly woman “mad as hell” that planning had removed her ability to divide land among her children. Audrey McCall spoke for the measure’s opponents — and for her late husband’s legacy.

Measure 7 passed, but was invalidated — two years later — by the state Supreme Court on a constitutional technicality. Meanwhile the legislature, in 2001, and again in 2003 and 2005, tried but failed to find compromise between planning and property rights.

That failure set the stage for passage in November 2004 of Measure 37, by 61 to 39 percent, requiring governments to pay for regulatory takings or waive planning laws retroactively. Proponents, led by OIA President Dave Hunnicutt and Vice-President Moshofsky, consider it to have restored rights taken when SB100 passed in 1973.

Sullivan, the planning advocate, sees it this way: “Oregon’s land use program still is a national leader. Measure 37 is the antithesis, (but) the two now coexist … It is unlikely that the Measure will be completely repealed, just as it is unlikely that the state’s planning program will be repealed … (A) synthesis … will reconcile these seeming opposites. The future of planning lies in this synthesis.”

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Sam Lowry of Portland writes about land use issues, and works for Portland State University. An Oregon native, he worked for 18 months as editor/reporter for the Goldendale Sentinel in 2003-04. In 2003 he wrote articles for the Hood River News on the wine industry, Pine Grove fire department, and other topics. Lowry formerly worked as a planner for Yamhill County.

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