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January 19, 2005


Why is it that when we point out that people are prone to be selfish we're told that we're negative, but when other people want to reserve the right to use torture on people, they are just being prudent?

All of this is a classic illustration of the "tragedy of the commons". It's also very tragic is that we have elected officials who apparently think that the best way to govern our wonderful state is to assume that people will just do the right thing.

I'd bet that most of the people who could be trusted to use their land in ways that would be congruent with their neighbors' happiness are people who voted against this measure in the first place.

If you subtract the few people who have honest land use grievances that should be addressed, we're left with all the people who would sell their grandparents'pride and joy to developers in an instant if it would mean fattening their wallets.

I don't think it's necessary to frame it as government protection from abusing laws. If it can be widely abused, it is a loophole. If it's got a bad enough loophole, it's bad law. Measure 37 was half a solution to a tenth of a problem. That's one of the major drawbacks to an initiative system that I otherwise like--nobody has to really take a look and study the potential impacts. It passed, it went it, bang.

It's bad law because it creates inequity and land use chaos.

I have taken the opportunity to quote some of the previous article and intersperse the counter arguments. As I am a foreigner to your county you may take my comments as more or less dispassionate, except that I am a landowner currently burdened with land use restrictions.

“Neighbor is going to be pitted against neighbor, since land use rules now can be applied inequitably. If one person bought property in year X, the rules that apply to his or her land may be quite different from those that apply to a neighbor who bought property in year Y. “

Neighbor was pitted against neighbor when the land use rules were first applied. Consider an old time landowner, like myself, whose family has been successful in maintaining at least part of the land for hundreds of years. (Other parts were sold off periodically in times of financial or health crisis.) Over time his neighbors (and some that are quite far away) have previously sold their land in order that people might have a space to live of their own.

Not satisfied with that, these new neighbors pass ordinances that make their property more valuable by virtue of being near open space and pleasant views. Losing the ability to subdivide is of no consequence to the new neighbors, since that has already been done for them. The old timer is now prevented from doing exactly what his neighbors have previously done. He has been placed in the position of providing services and scenery for his neighbor’s benefit, for which he is not compensated.

In addition he is frequently REQUIRED to remain in farming in order to prevent a large tax bill from being applied to his property, even though farm prices indicate this is an uneconomic expenditure of labor. Even if he has other skills he might better put to use he must remain in farming or sell his primary asset at a huge discount to what his neighbors paid for their house land. Then if that is not bad enough, he is told that farms need to be “protected” because they pay $3 in taxes for each $1 in services they get. When does HE get protected?

When his land was purchased, certain land use rules were in effect and enforced by the county, and his payment for the land was based on his estimate, not just as its use as farmland, but on its potential value for other uses allowed by the county. In that sense he considered the possibility that he might be surrounded by development and that too, was a consideration in his purchase price. As the first purchaser he reasonably expected that everyone else would conform to the same rules.

“At the time of purchase the second person reasonably expected that the regulations which he or she has to conform to would apply to everybody in the neighborhood. But Measure 37 created favored classes of landowners. If you bought your property before a land use rule went into effect then you can be exempted from the rule, while those living next to you who bought their property later have to put up with whatever you decide to do with your newfound freedom.”

When the land use rules were passed, many of the original owners complained bitterly. They were told that they should have expected that land use rules might change, and so they had no cause to complain. Now that the shoe is on the other foot, the secondary owners have conveniently forgotten their previous argument. Either they were wrong then, or they are wrong now. By their own previous argument (and actions) the secondary owners should have had no expectation that the rules might not change (again).

Even if the laws never changed again, the first owners would still face an injustice that increased over time: his neighbors home properties are likely to increase in value much faster than his farm property. Each year this occurs the burden he faces is larger with respect to his residential neighbors. Note that this is true even if his residential neighbors are miles away.

“Like, put a factory in a quiet residential neighborhood. Or build a subdivision in the middle of prime farming land. After last week’s hearing Laurel asked one of the county commissioners, Patti Milne, why she was so firmly on the side of people desiring to profit from a Measure 37 exemption, and seemed to be disregarding the effects of such exemptions on other people harmed by these exemptions.”

A factory in a residential neighborhood is a red herring argument because it is first of all highly unlikely and second there still exist nuisance statutes that can be applied. Much of the angst directed against the laws originally was from farmers who objected to the possibility that they might want to subdivide someday. Farmers recognize that it is no longer prime farmland, not when the soils go bad, but when it is no longer economic. The South Carolina Dept. of Agriculture suggests that at $4500 per acre only the most astute farmers can succeed. At $7000 per acre a farmer is better off to sell the land and put the money in a money market. Prime soil or not, why would anyone face the risk, labor, and hazards of farming under those conditions, and more to the point why would we expect him to do so for our benefit?

Those people who now claim they are being harmed by the exemptions are those that caused the inequity and unjustified assumptions in the first place. 60% of Oregon voters recognize that.

“Commissioner Milne said, “If Measure 37 claimants saw that their claims would hurt others, they would probably not go ahead with the claims.” Laurel was amazed and asked if Milne was serious. “Yes, I am optimistic about people.” When Laurel said that this was unrealistic, Milne said that Laurel had a negative view of people. Laurel replied that her thirty years as a social worker and psychotherapist gives her a pretty realistic view of people, and makes her confident in asserting that some people can’t be trusted to do the right thing.”

First we have to agree on what is the right thing, and then we have to agree on who is going to benefit and who is going to pay. Is it the right thing for us to put our neighboring farmers in a kind of serfdom for the benefit of many, when the many do not share their costs?

“It’s disturbing that an elected official would have such a misunderstanding of human nature. Patti Milne has such a rosy outlook, one might think she believes that society doesn’t need to have rules to curb human greed, ignorance, and selfishness. Does Milne believe that police should be abolished and the armed forces disbanded? Probably not. I bet she would say that we have to protect ourselves from criminals and threats from abroad. “

I think it is petty and mean to compare our neighboring farmers with terrorists and criminals. I work hard to protect my farm, but I know the history of the farm and I know I am mortal. One day I may need the farm to protect me, and I would like the means to have it do so. Otherwise, I expect those that removed the means from me to make an equivalent dispensation.

“So why isn’t society entitled to protection from people who want to harm the environment and the rights of neighboring property owners? Just as there are law-abiding citizens as well as criminals, so are there property owners with positive development motives as well as owners with negative motives. Land use rules are designed to protect the social fabric from ignorant, selfish people. Measure 37 has created the potential for a massive rip in this fabric. The 2005 Oregon legislature needs to get out needle and thread and fix it.”

In your opinion land use rules are designed to protect the social fabric from ignorant selfish people. From the viewpoint of one who has had his opportunities removed – the same opportunities the rest of society enjoys- land use rules appear to be designed by people who are ignorant and selfish. Selfish, because they want to preserve their viewscape, watershed, and uncrowded highways, an ignorant because they have no understanding of what it costs their neighbors.

“The January 3 issue of “The New Yorker” has a fascinating book review of “Collapse: How Societies Choose to Fail or Succeed” by Jared Diamond. “ ……” societies fail, in Diamond’s view, when they mismanage those environmental factors.”

“Measure 37 gets mentioned at the end of the review as an example of how a society screws up. Gladwell calls the Measure “intellectually incoherent.” He thinks that the debate in Oregon over so-called property rights “values” misses the point: “

As far I know we don’t know why the Mayans disappeared. The Aztecs and American Indians were pretty much wiped out by Europeans, one way or another. The Anasazi may have been butchered over a few carrots and potatoes or because they held an unpopular religious view. Whatever the case these issues can be seen as a superior economic force willing to pay more for a resource than an earlier inhabitant. Whether the payment was in money or blood was is more or less irrelevant.

In the case of land use laws, the new inhabitants elected to use force at the ballot box rather than negotiate a fair payment to the Anasazi to begin with. Measure 37 represents a counter assault.

Slave owners once thought slave uprisings were wrong too, because in their mind slavery was legal. Today we have a different view with regard to slavery, but the same view with regard to land use.

“Rivers and streams and forests and soil are a biological resource. They are a tangible, finite thing, and societies collapse when they get so obsessed with addressing the fine points of their history and culture and deeply held beliefs…that they forget that the pastureland is shrinking and the forest cover is gone.”

Unfortunately for the old time farmers you consider your house to be your property, and the streams and forests to be your property as well. Their land came with a promise from society that it contained the rights to build houses like the one you claim you own. Are you willing to give up part of your house in order to replace the promise of one that you as a member of society took? Are you raising the value of the forest and streams above the value of his (potential) house, or are you raising it above the value of your own?

In my area many people who were previously in favor of land conservation now find that the value of their homes has increased to the point they can no longer live in them and enjoy the views they once had. Then when they move to the far suburbs they are surprised to find it difficult to build a home on account of housing restrictions.

Be careful what you ask for. You may get it.

Ray Hyde
Ashby Glen Farm
Delaplane, VA

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