Plain truths about Oregon property rights

A few nights ago my wife and I went to a standing room only talk by Ralph Bloemers of the Crag Law Center, one of Oregon's premiere public interest attorneys.

Now, it was a small room at the West Salem Public Library. But still, I was impressed by how many people turned out for this Friends of Marion County meeting about vesting and land use issues under Measures 37 and 49.

Some Measure 37 claimants even came, wanting to learn how their development efforts are likely to fare under the new property rights climate ushered in by the passage of Measure 49 on November 6.

They heard some truths from Bloemers that probably startled ears used to the lies, dissembling, and legal misinterpretations that's an Oregonians in Action (OIA) trademark.

My favorite Bloemers quotes were:

This isn't about property rights people versus anti-property rights people. We all have property rights.
It's property rights people against property rights people.

Right on. As I've written about endlessly in the "Measure 37" category of this blog, neighbors of Measure 37 claims have just as many property rights as the claimants.

Like, in our neighborhood's case, the right to not have our springs and wells go dry from a large subdivision on groundwater limited farmland.

And in the case of a couple who lives near a Measure 37 claim near Rickreall in Polk County, and told their tale at the meeting, the right to not have their house condemned because it lies in the path of a road that would have to be re-designed if the claimant's commercial development were to become reality.

Which, it almost certainly won't.

Because Bloemers explained that it will be very difficult for Measure 37 claimants to be "grandfathered in" under that law and avoid the restrictions of Measure 49 (such as no commercial or industrial development, and a limitation of three home sites on farm, forest, and groundwater limited land).

The director of the state Department of Land Conservation and Development has said that no more than 10 claims statewide have a hope of being vested, the legal term for being "grandfathered in."

This is out of more than 7,500 claims statewide, so those who think they're going to get rich quick with Measure 37 are facing long odds. Not quite as bad as the lottery, but pretty darn close.

One problem facing the claimants is that vesting decisions fall under the common law of Oregon. Meaning, legal precedents are going to rule, not, as Bloemers put it, "midnight decisions by a county saying you're vested!"

In other words, political shenanigans won't be able to tilt a vesting decision in favor of a Measure 37 claimant. It's going to take solid facts and a good understanding of case law.

Thus the advice that Oregonians in Action has been proffering to claimants – rush ahead with construction – is going to lead to money being wasted by would-be Measure 37 developers.

As I've written before, "Hardly any Measure 37 claimants will have vested rights." (And now I've learned that the DLCD director, who knows a lot more about land use than I do, agrees with me.)

This is as it should be, a point hammered home by Bloemers when he talked about how the U.S. Supreme Court has repeatedly ruled that government zoning laws are eminently constitutional. So OIA's contention that Measure 37 restored rights Oregonians had under the U.S. Constitution is completely wrong.

Regulating land is a valid use of police powers, Bloemers said. Everyone is burdened and everyone is benefitted by land use regulations, just as is the case with speed limit regulations. It's a system of reciprocal burdens and benefits.

The individual and the community each have rights. He used the example of Grand Central Station in New York, a historic building.

If the owner had been allowed to tear it down, then the community of train fanciers who get much satisfaction from seeing Grand Central Station would lose their right to view a part of history. So the owner was required to build a new use on top of Grand Central Station – balancing individual and community rights.

Here's another way Bloemers asked his audience to look at land use regulation. When someone thinks they've lost money because of a regulation, and wants to be free of it, the question to be put to them is: "What if nobody was regulated, not just you?"

This is why I've said Measure 37 makes no sense (as 62% of Oregonians agreed when they voted for Measure 49, which went a long way toward fixing the flaws of Measure 37). I put it in terms of lemonade stands.

It's a hot summer. Every kid on the block gets the bright idea, "I'll set up a lemonade stand on our lawn next to the sidewalk." They all go to their parents for permission. The block is full of naysayers. "No way, kid. Find something else to do."

Except for one accommodating couple: "Sure, honey. It's fine with us if you sell lemonade." The child starts her business. She does great.

Because she's got the only lemonade stand on the block. All of the strict parents made it possible for the kid with permissive parents to make money. If there was a lemonade stand in front of every house, the limited number of cold drink buyers would be spread out among many competing sellers.

This isn't rocket science. It's basic economics. Which is why Oregon's Measure 37 is founded on illogic. This law says that owners must be compensated when land use laws reduce the value of their property. Or, the laws have to be waived.

The big flaw in this logic is that the very land use laws that prevent people from using their property as they want to—putting ten houses on a five acre parcel instead of one house, for example—is the reason why their property is so valuable if those laws are waived.

Measure 37 proponents like to spout platitudes such as, "When a government regulation reduces the value of your property, you should be compensated." What isn't said, but should be, is: "That same government regulation also is responsible for increasing the value of properties."

Bottom line: Both the community and the individual have property rights; both the community and the individual add value to property; both the community and the individual have a say in how property is to be used.

Comments

[Amused in Salem]

"Premier public interest attorney?" Gimmie a break. Bloemers is a tool. You'd kiss anyone's ass if they agreed with you.

He may be a premier "special" interest attorney...but certainly not the public at large.