Land-use ruling puts issue back at Square One -- Measure 37: The question of how Oregon will balance property rights and livability now seems destined to return to voters or legislators

(Note: "Judge" James is apparently thumbing the nose at Oregon voters by this action. Has she been too long on the bench? One must wonder if she can also throw out a ruling by voters if voters "send a message" and vote her out of office...)
October 16, 2005
By Peter Sleeth or 503-294-4119
The Sunday Oregonian
1320 Southwest Broadway
Portland, Oregon 97201
Fax: 503-294-4193
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A judge's ruling throwing out Measure 37 reopens the question of whether Oregon will resolve its struggle over land-use laws in the Legislature or force the fight back to the ballot box.

A growing population has strained the nation's strictest zoning laws, creating more conflicts for property owners. Voters, in sympathy, twice since 2000 gave them more rights to develop their land, only to see courts strike down the measures.

The first was dismissed on technical grounds. On Friday, Marion County Circuit Judge Mary James said Measure 37 violated the state and federal constitutions.

Oregonians in Action, which authored both measures, says it will try again with voters in 2006. If the group succeeds, its opponents will bring the issue, once again, to the courts.

Although the 2005 Legislature's attempt at compromises to Measure 37 disintegrated, lawmakers may have provided one glimmer of hope. They created a 10-member commission, known as the Big Look, charged with holding public meetings and bringing to the Legislature proposals for reformatting the entire land-use system.

It would be the first comprehensive examination since voters approved the laws in 1973. That could allow for new rules that address the state's variety of geography and growth patterns, rather than a one-size-fits-all ballot measure.

"One of the problems when you rely on the ballot box for public policy, is you never get a chance for compromise," said Tom Eiland, who has done polling on land-use issues for the Portland public relations firm of Conkling Fiskum & McCormick.

The firm's latest poll, completed in March, found that Oregonians remain conflicted about land-use planning. Although two out of three said growth management has made the state a more desirable place to live, about the same number said protecting the rights of property owners is very important.


Growth strains system


As Oregon's population grows -- it is expected to reach 4.8 million by 2030 -- those seemingly contradictory values will clash even further. The Oregon Coast is under intense development pressure, as is much of Western and Central Oregon. As land is approved for development, parcels outside the legal boundaries look more tempting to developers who want to satisfy the demand for housing.

"The people of Oregon clearly want to protect the rights of property owners," said Arnold Cogan, a Portland land-use consultant. "But they also want to maintain the land-use laws that have created the livability we have here."

Cogan and others consider the 2005 Legislature's lone surviving piece of land-use legislation a chance to bring all sides to the bargaining table. Then, the land-use system could be tailored to fit Oregon's current needs, rather than the Oregon of three decades ago.

Formally known as the Oregon Task Force on Land Use Planning, the Big Look is required to survey Oregonians through public meetings before forming recommendations to the Legislature.

Many observers doubt the commission can succeed, saying its $600,000 budget is too meager. Further, it must do its work during a 2006 election year that includes a governor's race and an expected bitter campaign for control of the Legislature.

Others see it as the best hope.

Governor Ted Kulongoski, who is up for re-election next year, is expected to name the Big Look board quickly in an effort to gain momentum from the ruling against Measure 37. Kulongoski opposed Measure 37 and is putting his faith in Oregonians' ability to come together again -- as they did in the 1970s and 1980s -- to preserve the state's quality of life.

Almost certainly, Oregonians In Action and 1000 Friends of Oregon, which fought Measure 37, will revisit the ballot box to shape land-use law in 2006. Both groups had drafted initiatives aimed at moving the property-rights line again, and were preparing to put them on the ballot. Those were derailed by Friday's ruling.

Another option -- calling a special session of the Legislature -- is unlikely.


Prospects for progress


For more than half a year in the 2005 Legislature, legislators haggled over how to implement Measure 37 -- and, potentially, solve broader questions about Oregon land-use planning. They ended the legislative session with nothing to show for it, except bruised egos and a stack of abandoned bills.

Both sides were unwilling to give any ground: Democrats insisted they couldn't scale back farmland protections, while Republicans insisted they couldn't scale back rights gained under Measure 37.

Sen. Charlie Ringo, D-Beaverton, labored throughout the session to rewrite Measure 37. He took a political battering on the subject that left him deflated about the possibility for political compromise

"I would like to think both sides would say, 'OK, we are going to put down our swords and reach some accommodation,' " Ringo said. "I did not see that in 2005, and I don't see that coming in the future."

Among the problems with the Big Look, critics say, is that because it may not produce results until 2009, proponents of the ballot measures won't wait. Richard Benner, who headed the state Department of Land Conservation and Development from 1991 to 2001, says the process must be quicker, nimbler and force the public to confront the consequence of its choices.

Benner advocates using the Internet and advances in software technology to allow people to take part in the discussion at a more rapid rate.

"We can have it all if we are just more intelligent about it," Benner said. "We have the tools to do it."

Cogan, the first director of the Department of Land Conservation and Development after its creation in the 1970s, says the late Gov. Tom McCall, who helped shepherd the land-use system into being, would favor its evolution.

"He was great at coining phrases," Cogan said. "If he was alive today, he would say we need to fix this system so it survives and thrives."


Laura Oppenheimer of The Oregonian staff contributed to this report.

Copyright 2005,
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