Input needed on Big Look task Force

By Oregonians In Action Education Center
Looking Forward Magazine ,

With the “Big Look” Land Use Task Force “looking” at Oregon’s land use system, it’s time for all Oregonians, especially rural Oregon land owners, to take a big look at the system, and get involved in reforming it.

Let’s start back in 1973 when the land use system was launched.  This is the year Senate Bill 100 was enacted.  It created the Land Conservation and Development Commission (LCDC) and empowered it to impose mandatory statewide land use controls over every acre of private land in the state.

The system is called a “planning” system, but the reality is the system is so inflexible very little “planning” can take place, especially on rural land.  It is primarily a system aimed at “preserving” the state as it was in 1973.  The two basic underlying objectives are (1) preserving “open space” in rural areas, and (2) urban containment.  These objectives are achieved by strictly limiting expansion of existing cities, banning new cities and urbanized areas, virtually outlawing new highways, and severely restricting uses on all rural land.

Here’s what happened.   In 1975, LCDC adopted nineteen Goals which included Goals 3 and 4.  Goals 3 and 4 led to imposing highly restrictive farm and forest zones on nearly 97% of all private rural land in the state.  These zones were imposed with little regard for the actual productivity of the land for farm or forest purposes, with no regard for economics, and with no respect for the property rights of the owners of the land.

It’s clear LCDC greatly exceeded what most supporters of Senate Bill 100 intended or expected in 1973.  At that time, the major concern was protecting good farm land, especially the prime farm land in the Willamette Valley, and there is not a single word in Senate Bill 100 about protecting forest land.  Nevertheless, LCDC forced counties to zone about 16 million acres into highly restrictive “Exclusive Farm Use” zones (even though less than 2 million acres are prime farm land and less than 5 million acres are suitable for farming).  Also, under Goal 4, LCDC forced counties to zone about 9 million acres into highly restrictive forest zones without regard to its productivity.  Goal 4 provides such zoning is not only for “commercial forest purposes,” it is also for maintaining “wildlife resources.”

All such highly restrictive zoning was imposed without any compensation whatsoever for the loss of use suffered by the landowners.  Almost all rights to development and land divisions were taken away.

How did LCDC get away with taking private land without compensation in violation of the U.S. and Oregon Constitutions which protect property rights?  LCDC was able to do so for two reasons.  First, the Oregon legislature failed to enact a “compensation” program that was called for by Section 24 of Senate Bill 100.  Second, the courts failed to require compensation for “partial takings” of private property by regulations.  Basically, the courts say that if governments “physically” take private property, full compensation for lost value must be paid, but if government merely restricts the “use” of property (by imposing  regulatory controls), no compensation need be paid so long as the landowner is left with  “any economic use”.

This means that government  can use regulatory controls to literally “steal” over 90% of the use and value of private land.  For example, the government can take away the right to a dwelling and pay nothing if the landowner can still grow crops, graze a cow, or grow some trees.  Some controls are justified to prevent harm and protect public safety, but not to provide public benefits.

What about opportunities to alter or change regulatory restrictions under the system?  They are very limited.   The so-called “exceptions” process which could allow some flexibility in rural zoning actually allows very few exceptions.  Efforts to bring about flexibility through LCDC or  legislative action have had very limited success.  Efforts to restore rights of landowners through the initiative process have also had limited success.   The courts threw out Measure 7 on a technicality.  The Attorney General frustrated relief provided by Measure 37 with a contrived opinion letter which limited “transferability,” and then the legislative-drafted Measure 49 took away most of the property rights protection provided by Measure 37.

The Big Look Land Use Task Force has a great opportunity to recognize the need for flexibility in the system, and  recommend reforms.  Here are factors it should consider:

(1) There are tremendous variations in forest and farm productivity throughout the state based on differences in soils, slopes, elevation, moisture availability, climate, size of ownerships, conflicts between land uses, changing land uses on nearby land, and many other factors.  The land use system did not take such variations into account, and it is so inflexible it is virtually impossible to change the system to deal responsibly  with such variations.

(2) There are also changing local, regional and world markets for farm and forest products which necessitates having a land use system that can adapt to such changes.

(3) It doesn’t make sense and isn’t fair to force owners of private land to use their land exclusively for forest purposes when the federal government bans harvesting on millions of acres of good forest land in the state, and the state is putting no pressure on the federal government to lift the ban.  Also, it’s certainly isn’t fair to force private landowners to provide habitat for wildlife without compensating them for the loss of use and value.

(4) Local governments retain virtually no authority to decide what is the best zoning for their community.  The state is simply not equipped to be deciding land use policies for every city and county.

Rural landowners who suffer from overly restrictive land use regulations and the lack of flexibility need to express their concerns to the Task Force which is holding hearings around the state.  One approach is to reduce state control over less productive rural land and allow counties to modify farm and forest zoning to bring much needed flexibility on the less productive land.

As the Task Force moves to public meetings in September, examples from rural Oregon property owners are needed to convince Task Force members that they must make bold recommendations to the 2009 legislature.  Your attendance at Task Force meetings and insistence on changes is critical for Oregon’s future.

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