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 Anti-Sprawl Laws, Property Rights Collide in Oregon
 
 By Blaine Harden
 
  HOOD RIVER, Ore. -- The nation's strongest laws against sprawl are beginning to buckle here in Oregon under pressure from an even stronger, voter-approved law that trumps growth restrictions with property rights.
 
 In a collision between two radically different visions of how cities should grow, claims under Oregon's new law are pitting neighbor against neighbor, rattling real estate values, unnerving bankers and spooking politicians.
 
 The property-rights law, which was approved overwhelmingly by voters last fall and is known as Measure 37, is on the brink of wrecking Oregon's best-in-the-nation record of reining  in sprawl, according to state officials and national planning experts. They say the new law illustrates a nationwide paradox in public opinion: Although voters tend to favor protection of farmland and open space, they vote down these protections if they perceive them as restrictions on personal rights.
 
 "Measure 37 blew up our land-use system," state Sen. Charlie Ringo, a Democrat from suburban Portland, declared while presiding over a tense, standing-room-only hearing on the law that was held recently here in Hood River, a resort town in the Columbia River Gorge.
 
 The law compels the government to pay cash to longtime property owners when land-use restrictions reduce the value of their property -- or, if the government can't pay, to allow owners to develop their land as they see fit. Because there is virtually no local or state money to pay landowners, Measure 37 is starting to unravel smart-growth laws that have defined living patterns, set land prices and protected open space in this state for more than three decades.
 
 Although the unraveling is being watched with alarm by smart-growth advocates across the country, it is exactly what local backers of the new law say they want as recompense for what they describe as years of arbitrary bossiness in the enforcement of land-use restrictions. Smart-growth laws attempt to direct development to areas served by existing roads and utilities and curtail new housing and business construction that will sprawl out to rural areas.
 
 "If you are going to restrict what someone can do with his land, then you have to pay for it," said Dale Riddle, vice president for legal affairs at Seneca Jones Timber Co., an Oregon firm that was the largest donor to the campaign for Measure 37.
 
 Thanks to Oregon's new law, anti-sprawl legislation has lost political momentum across the country, according to Harvey Jacobs, a professor of urban planning at the University of Wisconsin. "It has really excited the property-rights movement and suggests to its supporters that they can challenge smart-growth laws everywhere," he said.
 
 In the Washington suburbs, where only Maryland has passed smart-growth legislation, momentum for the enforcement of those laws began to wane under Gov. Robert L. Ehrlich Jr. (R) well before Oregon voters approved Measure 37. Ehrlich cut funds for acquiring open space, eliminated a smart-growth secretary from his Cabinet and, critics say, supported road projects that encourage sprawl. 
 
 Land-use restrictions first began to trigger a national voter backlash in the early 1990s, when a number of states -- Florida, Texas, Louisiana and Mississippi -- passed property-rights laws to protect landowners from monetary losses caused by zoning. But none of these laws was broadly written and none has had a significant impact on local land-use regulation, according to John Echeverria, executive director of the Georgetown Environmental Law and Policy Institute.
 
 Oregon's new law packs a much more powerful punch.
 
 "It is in a different universe," Echeverria said. "It has unleashed a whirlwind. Every single piece of evidence that has come down shows that this measure is destroying the state's land-use system." 
 
 In addition to being powerful, the new law is also proving infectious.
 
 A nearly identical bill has been introduced this year in the Montana legislature. In bordering Washington state, which is second only to Oregon in the toughness of its land-use laws, farm and building lobbies are working to put a similar initiative on the state ballot. 
 
 Measure 37 was sold to voters last year as a matter of fairness. On ubiquitous radio ads, the frail, woebegone voice of Dorothy English, who bought land in 1953, explained how land-use laws had blocked her from dividing her 40 acres for her children. "I'm 91 years old, my husband is dead and I don't know how much longer I can fight," she said. The ballot measure won with 61 percent of the vote.
 
 State financial records, though, show that small family farmers contributed virtually nothing to the Family Farm Preservation political action committee that bankrolled Measure 37. Most of the money came from timber companies and real estate interests that stand to profit if, as many here expect, large tracts of forests and farmland are unlocked for development. 
 
 This mirrors a national pattern, according to Jacobs, at the University of Wisconsin. He says that property-rights campaigns are often sold to voters as compensation for struggling small landholders, while the support money comes from large companies seeking ways around regulations that limit resource extraction and property development. 
 
 As Measure 37 percolates through Oregon's legal and political system, it is stirring up bad blood of a kind that was on public display here in Hood River during a hearing convened by members of the state Senate committee on land use.
 
  The star witness at the hearing was John M. Benton, whose family has been growing fruit near Hood River for nearly a century. This town, a destination resort for Columbia River wind surfers, has experienced a steep rise in real estate values caused, in large measure, by land-use laws that prevent orchards on the edge of town from being turned into subdivisions.
 
 To take advantage of this market, Benton wants to convert 210 acres of his family orchard into housing. The resale value of his orchard, if it continues to be zoned exclusively as farmland, would be about $8,000 an acre. But if it were sold for housing, Benton said, it would fetch $284,000 an acre.
 
 Benton and his family have filed a Measure 37 claim demanding that they be paid $57 million for their land or else be allowed to build as many as 800 houses. State and county officials say that they have no money to pay and that building appears to be the only option under the law.
 
 The Oregon legislature, Benton told the hearing, should "quit trying to be social engineers and let the market forces and the good people in this state realize their potential."
 
 His testimony appalled many of his neighbors, who are also longtime fruit growers in the gorge. They testified that Benton's plan to inject suburbia into orchard country could push the local fruit-growing economy into irreversible decline. They also said that development unleashed by Measure 37 would desecrate scenery that makes the gorge one of the major tourist destinations in the Pacific Northwest. Tourists, they said, do not come to the gorge to look at subdivisions.
 
 During a break in the hearing, Benton was asked about the fury that his plan has unleashed among his neighbors.
 
 "Life is not equal," he said. "There is a law that got passed, and there is going to be a good amount of whining going on."
 
 Indeed, a major complaint about Measure 37 is that it has created a privileged group of landowners in Oregon.
 
 "A whole class of owners has special rights and they can exercise them whenever they feel like it," said Ethan Seltzer, director of the School of Urban Studies and Planning at Portland State University.
 
 Oregonians whose families owned property before statewide land-use laws were imposed (beginning in 1973) can take advantage of the monetary and development relief offered under Measure 37, but those who bought land afterward cannot.
 
 About 200 claims, mostly from small farms, have been filed statewide under Measure 37, according to the Oregon Land Conservation and Development Commission.
 
 But the director of the commission, Lane Shetterly, said there are probably many more claimants -- some with major development plans. They are biding their time, he said, waiting for a number of uncertainties in the new law to be worked out.
 
 First among those uncertainties is whether a qualified property owner can sell his development rights under the new law. Banks would be very reluctant to lend money, Shetterly said, if resale voids the benefits of Measure 37 and subjects new owners to land-use restrictions.
 
 Another major problem with Measure 37 is that it requires no public hearings or notification of neighbors when a longtime landowner decides to turn a farm into a strip mall. The law, in fact, says nothing about the rights of neighbors.
 
 In Yamhill County, an exurb of Portland where vineyards produce the state's pinot noir grape, the absence of neighbor notification has provoked emotional exchanges among neighbors and elected officials.
 
 "My heart hurts over the lack of public notice," Mary Stern, chairman of the county Board of Commissioners and a Democrat, said during a recent hearing. "We are creating another class of victims."
 
 In response, Kathy George, another member of the board and a Republican, said, "I am very sick also over the way our land-use laws have abused private citizens over the past 30 years."
 
   

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