Sidebar:
DETAILS, DETAILS: IS MEASURE 7 THE END OF THE WORLD AS WE
KNOW IT?
On a damp evening last month, true believers gathered at
Cinema 21 in Northwest Portland. Supporters of the land-use
defenders 1000 Friends of Oregon were there to watch
Subdivide
and Conquer: A Modern Western, a documentary about the
immoral, car-centered wasteland of America, a landscape
scarred by the greed of developers, speculators and the
intellectually lazy. The movie's villains were Phoenix and
Houston, Los Angeles and Levittown. The hero: Portland.
In the movie, as a MAX train moved quietly and safely
through the Skidmore Fountain area, pedestrians strolled
through the car-free zone. Some cities are doing things
differently, the narrator, actor Dennis Weaver, intoned.
You could almost hear the audience sigh with satisfaction.
Afterwards, the lights rose and Robert Liberty, the bearded
and tweed-wearing executive director of 1000 Friends,
stood before the audience. He warned of an enemy that
threatened to destroy the Oregon they all loved. Former
Gov. Tom McCall's 27-year-old legacy of land-use planning
was in danger because of Ballot Measures 2 and 7, which,
if passed, would turn Portland into Anytown, USA. Defeating
the measures would take money--and a lot of it.
On cue, like ushers in a church, volunteers moved through
the rows of the theater, handing out envelopes for donations.
After such a sermon, it seemed inconceivable that Oregon
voters would overturn the very thing that makes Oregon
different.
On Nov. 7, Ballot Measure 2, which would have allowed
people dissatisfied with state agency rules to call for
a legislative review, failed. But the so-called takings
initiative, Measure 7, passed 53 to 47 percent. In rural
counties, the spread was even more stunning. Places like
Grants Pass, Powell Butte and Heppner not only passed
the measure, they hit it out of the electoral ballpark.
Up to 69 percent of the voters there said that if the
government takes any part of their land, the government
ought to pay for it. The constitutional amendment failed
only in the urban counties along the Interstate 5 corridor.
Measure 7 seems like a simple tit for tat, but it isn't.
While both the federal and Oregon constitutions require
compensation when the government wholly condemns or takes
property, to date courts have ruled that a "partial taking"
requires no payment to landowners.
In every city in America, zoning laws and property regulations
help write the civic contract. In Oregon, such rules have
taken on a religious import, based on the land-use tenets
set in stone by former Gov. Tom McCall. In 1973, the Republican
governor convinced a Democratic Legislature to pass his
vision of protecting farmlands, creating open spaces and
planning livable, walkable cities. Over the past quarter-century,
this vision has defined Oregon more than the rain. Yet
on Nov. 7, Oregon voters proved that nothing is sacred.
James Huffman is the dean of the Northwestern School
of Law at Lewis & Clark College. He has written extensively
about what he considers unfair partial-takings laws. He
often butts heads with his more liberal colleagues at
the law school, and he supports the concept of Measure
7. Nevertheless, he was shocked that it passed.
"It's really amazing to me that it happened here in Oregon,
of all places," Huffman says. "To really go beyond what
any court now says is the constitutional requirement,
I find remarkable."
While most of the attention during the election was focused
on Bill Sizemore's anti-tax, anti-union and anti-teacher
initiatives, they all failed. Measure 7 was the sleeper,
brought to the ballot by a pair of down-home property-rights
zealots that few people had heard of. Yet Measure 7 could
ultimately have a greater impact on the state than anything
Bill Sizemore ever dreamed up.
In a nondescript Tigard office building, David Hunnicutt
leans back in a battered office chair. He is the director
of legal affairs for Oregonians in Action, the group that
pushed Measure 7.
Hunnicutt is suited up, looking like the lawyer he is,
except for his hair, which is buzz-cut survivalist-style.
At 35, what's left on his head has gone ghostly silver.
Next to him, Larry George snacks on chocolate-covered
hazelnuts. He looks relaxed, in jeans and a pinkish Ralph
Lauren shirt. The two come off more like Oregon college
buddies than renegades, an image that Hunnicutt is aware
of.
"I'm from St. Helens and Larry came from Newberg," Hunnicutt
smiles. "We're just good old boys from small-town Oregon."
Oregonians in Action has but one purpose, according to
George and Hunnicutt: to unlock the hold that special
interests have over private property--especially on the
land outside of urban areas, which they believe has been
incorrectly zoned for farm and forest use just so city
folk can have a pretty view when they drive in the country.
Their conversations are peppered with class-warfare rhetoric.
"Our unofficial motto," George jokes, "is that we're
here to protect anyone who is getting screwed by the system,
by the Man."
To OIA, the Man includes big government, big corporations
and 1000 Friends of Oregon, their most direct opponent
in the land-use wars.
1000 Friends, which McCall established in 1975 to watch
over the planning system he created with Senate Bill 100,
epitomizes the urban-liberal dominance over state affairs,
according to George.
"We view ourselves as populist libertarians," he says,
"and view 1000 Friends as a bunch of blue-blood elitists
who want to tell everyone else how to live."
Robert Liberty says that's baloney--that the Friends
have more than 5,000 members in every corner of Oregon.
The reality, he says, based on the group's history, is
that OIA is a fringe group that got lucky with Measure
7.
"They are a right-wing, property-rights organization
that is unrepresentative of Oregonians and their quality
of life," Liberty says.
For the past decade, OIA has slowly been building a base
of grassroots property-rights activists who agree with
George, not Liberty.
Larry George joined OIA as executive director in 1992.
Son of Sen. Gary George of Newberg, one of the few ultra-conservatives
left in Salem, George the younger was raised on politics
and farming. A graduate of Oregon State University, he
worked briefly in California in food inspection for Smucker's
before coming back home at 23 to join OIA.
Where George is the back-slapping politician, Hunnicutt
is more reticent. A self-described St. Helens labor Democrat,
he says he provides a balance to George's right-wing tendencies.
Hunnicutt earned a law degree from Lewis & Clark and
went into practice with his father for a few years. He
joined OIA after he began representing landowners and
became convinced that the government was taking advantage
of them.
"OIA was the only group I'd come across that was fighting
for landowners," he says.
In 1994, the group made its name after winning Dolan
vs. City of Tigard, a case that went all the way to
the U.S. Supreme Court. John and Florence Dolan, who own
A-Boy Plumbing in Tigard, applied for a permit to expand
their store. The city said they would have to create a
public bike path on their property to get the permit.
The Dolans sued, with the assistance of OIA, and eventually
prevailed, winning $1.5 million.
In the past 10 years, OIA has represented, always at
no charge, numerous landowners who have been thwarted
in their attempts to develop their property.
Beyond the courts, OIA has dabbled in fighting the Endangered
Species Act and last year distributed the infamous "salmon-bashing"
video that was shot at an Oregon Department of Fish and
Wildlife hatchery. The group also used the bloody footage
in a series of television commercials paid for by eccentric
millionaire Loren Parks.
Today, the group claims a supporter list of more than
6,000 people and an annual budget of around $450,000.
OIA has been slowly building influence at the state level.
In 1995, the group supported a regulatory takings law
similar to Measure 7 that was vetoed by the governor.
In 1998, it sponsored and successfully passed Ballot Measure
56, which requires the government to notify landowners
if it makes any zoning change that lowers their property
value. In 1999, the group helped pass a number of bills,
most of which were procedural tweaks in the administration
of the Department of Land Conservation and Development.
Critics point out, however, that OIA has yet to exercise
any serious clout. For three sessions it has failed to
move its most important agenda--loosening the strict farm
and forest-land zoning on rural lands. One of OIAs bills
would create a set of "secondary" lands that OIA deems
unfit for farming or logging. The second would eliminate
the 1995 requirement that anyone who wants to build a
house on farmland has to gross $80,000 in farm-related
income annually. OIA's work puts it at odds not only with
1000 Friends of Oregon but with the Oregon Farm Bureau.
Still, Jon Chandler, lobbyist for the Oregon Homebuilders
Association and a frequent OIA ally, says the group shouldn't
be dismissed.
"They've passed ballot measures, they're in the courts,
they're in the political process," Chandler says. "They're
not backing away from any fights they can get their hands
on."
Still, Hunnicutt and George were not prepared for the
biggest fight of their careers--pushing Measure 7. It
wasn't even their idea.
Measure 7 is the creation of Becky and Stuart Miller,
who have been longtime foot soldiers for Bill Sizemore.
The two of them penned Measure 7 after an environmental
overlay was placed on their land near Fanno Creek. Whether
intentionally or not, the measure attacks land use in
a different way than unsuccessful prior attempts. Measure
7 says nothing about overturning regulations. Instead,
it simply mandates that governments pay whenever a change
affects a property's value.
Earlier this year, Oregon Taxpayers United began circulating
petitions for the measure along with Sizemore's other
initiatives, but OIA saw this as trespassing.
"We've been working in land use for more than 10 years,"
says George. "This was our issue, and one that is very
important to our supporters."
After some behind-the-scenes grappling between OTU and
OIA, Sizemore handed the measure over once he had collected
most of the signatures.
Measure 7 was a risk to OIA. The group didn't have the
funds to mount two full-on ballot measure campaigns, and
it had already committed to Measure 2. In the end, Measure
2 fell by
the wayside.
"Explaining administrative rules to the public takes
more money than we have," Hunnicutt says.
For the Measure 7 campaign, OIA raised and spent almost
$450,000, largely on radio ads that featured land-use
planning "victims." In addition, Becky Miller of Oregon
Taxpayers United had her own political action committee
that raised, at last reporting, more than $365,000. George
created a second political action committee that solicited
donations from developer Robert Randall and timber baron
Aaron Jones to publish a $300,000 "voter's guide." This
four-color brochure, which failed to indicate who was
paying for it, offered opinions on a number of ballot
measures under the guise of objectivity. Mailed to most
homes in Oregon, the brochure had a profound effect. Polling
shows that support for Measure 7 continually eroded during
the campaign until the day the brochure hit.
It still baffles many that Measure 7 passed at all. No
one endorsed it. The Association of Realtors, a longtime
friend of OIA, stayed neutral, as did Oregon Homebuilders
Association. The Oregon Farm Bureau was against it, as
were all the major political, environmental and activist
organizations in the state.
The opposition, organized by 1000 Friends of Oregon,
spent $1.7 million, which may seem like a lot but is nothing
compared to the more than $8 million spent to fight Sizemore's
measures. Still, the No on 2 and 7 campaign ran hundreds
of thousands of dollars' worth of television ads. Measure
7 was opposed by nearly every newspaper in the state as
well as Gov. John Kitzhaber. In an emotional press conference,
85-year-old Audrey McCall asked the voters not to throw
away her husband's legacy.
Caroline Fitchett, who ran the No on 2 and 7 campaign
for 1000 Friends, acknowledges that few thought the measure
would pass and as a consequence, forces that would be
typically energized to oppose this measure were instead
focusing their efforts against Sizemore.
"In the last week of the campaign," she says, "people
became aware that this thing could win. There were farmers,
activists, teachers and elected officials from around
the state calling and emailing with offers to help."
In the last week, Fitchett says, more than $200,000 was
collected.
"If that would have happened 10 days earlier, if we had
had even another week," she says, "we would have won."
Today, lawyers, politicians and even OIA are trying to
sort out exactly what Measure 7 portends. Robert Liberty
repeatedly points out that the voters were voting on a
ballot title that mentioned nothing about land-use planning.
In fact, polling shows that Oregonians are still enthusiastically
behind the system.
"I don't know what the voters wanted," he says. "We don't
know if they wanted to overturn land-use planning in the
state."
Kitzhaber has made it clear that a 53 percent yes vote
is no accident and he won't support
a repeal.
Others are suggesting that there is a lesson to be learned,
that the signs of a voter backlash against land-use planning
have been in place for years. Henry Richmond, the first
director of 1000 Friends, says the voters of this state
have taken planning for granted. "It was just a matter
of time before someone knocked the Oregon land-use plan
out of the box," he says. "I think there is a very thin
level of understanding of the way many different interests
in society are affected and helped by land-use planning."
Others say the voters very clearly understand the effects
and they don't like it.
For decades rural Oregon has felt the brunt of environmental
regulations. Critics have often made a connection between
these rules and the decline in the state's resource-based
economy, whether or not this is a fair conclusion. In
addition, the split between urban and rural sensibilities
continues to grow. Travel anywhere outside an urban growth
boundary and you'll hear grumbling about how, on one hand,
small forest-land owners have to let timber rot in order
to provide buffer zones along streams to protect salmon,
but on the other hand, the city continues to dump its
sewage into the Willamette every time it rains.
"I believe there are an awful lot of folks who believe
that government regulation considers public interest paramount
over landowners," says state Sen. Ted Ferrioli, who represents
Gresham and points east. "They believe the government
has grown too fast and is inequitably administered over
urban and rural areas."
Outgoing Metro Council member Jon Kvistad says Measure
7 is a wake-up call.
"If we don't listen to that voice of frustration out
there," he says, "I think we're going to lose it all.
This is just the first salvo, and if we don't listen,
groups like OIA will be more successful and we could see
cracks in Oregon's land-use law that could become fissures."
DETAILS,
DETAILS
IS MEASURE 7 THE END
OF THE WORLD AS WE KNOW IT?
The Measure 7 claims have started.
Last week Jackson Creek Sand Co. filed a $50 million
federal lawsuit against the city of Jacksonville because
the town denied it a permit to expand its sand and gravel
extraction business. The town was trying to limit the
mining trucks roaring through its historic downtown. Fine,
say the miners--pay up.
While this isn't exactly what Larry George and David
Hunnicutt had in mind with Measure 7, the two maintain
that fair is fair. Property owners should be allowed to
control the use of their land, and if state government
action interferes with that, the state should pay.
That sounds straightforward, but it isn't. For one thing,
the language in Measure 7 is so vague that there is widespread
disagreement on the interpretation of nearly every aspect
of the new law, including whether or not it is retroactive
for property owners.
OIA will publish its white paper on what it interprets
the measure to mean this week. The state attorney general's
opinion is due before Dec. 7, the day the measure officially
becomes law.
City and county governments are already holding meetings
to see what the law means for their zoning regulations
and figure out how to pay the claims. Conservation groups
are strategizing. Lawyers are offering opinions.
"There is a lot of headless chicken activity right now,"
observes Randy Tucker of 1000 Friends of Oregon.
Some observers predict that Measure 7 is so confusing
it will have to be rewritten and sent back to the voters
for approval, much like Bill Sizemore's Measure 47 in
1996. Hunnicutt disagrees, saying that a minor legislative
fix to clarify the language and set up a claims procedure
is all that is needed at this point.
There is no question, however, that Measure 7 will disrupt
the balance between competing and often equally compelling
interests that zoning laws and regulations now try to
provide.
Case in point: the Widow Hackett.
During the Measure 7 campaign, OIA featured 76-year-old
June Hackett as a victim of land-use planning. Hackett
owns two adjoining lots near Forest Park. On one lot,
sized at less than 2 acres, is the house where she lived
with her husband before he died last year. The second,
slightly larger lot has nothing on it but trees. For years,
her husband wanted to develop and sell off the second
lot for retirement income. In 1993, Multnomah County refused
his permit application because the second lot had been
rezoned, since his purchase, as multiple-use forest land.
"I can sell it," Hackett says, "but who is going to buy
the property if they can't do anything with it? It's very
pretty but it's just sitting there idle."
Hunnicutt of Oregonians in Action says this is a classic
case of regulatory takings, and he says it will be among
the first claims OIA files under Measure 7.
"If the county wants open space," he says, "they should
buy it straight out."
OIA's critics say that the Hacketts received notification
of the zone changes and could have attended several public
meetings on the proposal. Others point out that the rezoning
saved the area from over-development and may have increased
the value of the lot on which the Hacketts' home sits.
"This is a beautiful neighborhood," says neighbor Arnold
Rochlin. "It isn't that one [additional] house would make
all that much of a difference, but the problem is it becomes
one house, then another house and then another. It would
be such a shame if that street were to become urbanized."
Whatever happens, Robert Liberty of 1000 Friends is clear
on one thing. Any local government that tries to get out
of paying the Measure 7 bills by backing off of land-use
planning will be sued.
"One of the things 1000 Friends does not have to do is
figure out how to cut budgets or raise taxes to pay for
this," he says. "But we will be there saying this is what
the voters voted on. You must pay for it."
--PW
