Land Use: Why Plan?

by Robert Sherwood

The Travelers and the Plane-Tree  

Aesop

TWO TRAVELERS, worn out by the heat of the summer's sun, laid themselves down at noon under the widespreading branches of a Plane-Tree. As they rested under its shade, one of the Travelers said to the other, "What a singularly useless tree is the Plane!

It bears no fruit, and is not of the least service to man." The Plane Tree, interrupting him, said, "You ungrateful fellows! Do you, while receiving benefits from me and resting under my shade, dare to describe me as useless, and unprofitable?'  

Moral: Some men underrate their best blessings.  

Our use of land says a lot about who we are. More than arguments pounded home in courtrooms and stakes driven into the ground, land use is the place where histories, interests and visions of the future intersect, too often with dishea r tening results. From the Middle East to the American West, we are still fighting over land. Not surprisingly, our various views of the land arise from conflicting narratives, reflected in the language we use: homestead/investment, park/development, wilderness/property. The same dichotomy is revealed in the way we see its use: private rights/public trust. The past several years have seen a Supreme Court decision and a number of ballot measures trying to resolve the issues raised in this continuing conflict.

Much of this history reflects at least two narratives creating two very different kinds of heroes. The first we call the "rugged individualist," tamer of the wilderness and morphed in more urban settings into the self-made man. From James Fenimore Cooper' s Natty Bumppo to Ayn Rand's Howard Roark, he makes his own success from brains and/or brawn, courage, hardship and ingenuity, and he takes pride in having done it all with no help from anyone else. His strength was needed to carve out the homesteads of the West and his self-interest worked well with market forces to develop our current economic structure. In the world of land use, he stands with private rights. The second narrative we call the "social contract." From Teddy Roosevelt to Tom McCall, real characters whose mythic words and deeds proved inspirational to some, irritating to others, this hero reminds us of our duty to each other and to future generations , and that "with benefits come responsibilities," but as with so many great ideas, "the devil is in the details," or perhaps more accurately in the implementation. In the world of land use, he stands with the public trust. Though some have pledged their allegiance fully to one or the other of these narratives, most of us have a bit of both in us and perhaps it is at this juncture that solutions lie.

And this brings us to yet a third narrative. America is the land of the Fair. From playground on up, the plaintive "That's not fair!" can be heard almost any time a limitation is put on personal freedom, and it is a complaint which engenders a lot of sympathy -- especially when it strikes home. The value of the sacrifice of the individual to the greater good is often not appreciated by the individual involved. To be perceived as fair, the sacrifice has to be shared.

The current web of property laws, environmental laws, and land use regulations reflect our efforts, over the course of many years, to fit these narratives into one story. As recent developments at the federal and state level illustrate, we are still looking for a happy ending.

A Little World History

Our early ancestors simply wandered where terrain and temperature allowed, taking what was needed -- fish, game, plants. Then increases in population lead to an expansion of hunter-gatherer territories aided by a growing ability of people to construct clothing and shelter and thereby endure more variation in climate and to make the tools and weapons necessary to feed and defend themselves.

The wandering continued from hunting to fishing grounds as extended families formed into tribes, expanding languages and social organizations, forming societies and developing art and culture. Then group by group succumbed to the urge to cultivate the land. In so doing, they discovered that they could support ever-growing populations with agriculture as revealed, for example, in the remains of one of the first farming villages discovered near a spring-fed oasis at Jericho in the Jordan Valley . Believed to be 10,000 years old, the farming village covered an area of almost 6 acres and supported a population of at least 300 people with crops of barley. More villages grew in the Jordan valley near what we now call Damascus and along the Euphrates . People were able to settle permanently and in higher densities; other tribes threatened and they began to protect themselves and their work. Thus wandering tribes grew into villages, cities and finally nation states with boundaries and borders fencing themselves in and others out. In nearly all these early societies, land was recognized as sustenance, and the populations took care of their resource, often giving thanks through festivals of harvest and to gods and goddesses of forests and fields. In societies where it existed at all, the concept of ownership (whether communal, secular or religious) was often as tenuous as the lives and power of those who claimed it.

A Little U.S. History

As European settlers emigrated to the United States they adopted English common law1 under which land they owned, their "property," meant a place in which they held a bundle of rights including:

1) the right to control and use the property,

2) the right to benefits from the property,

3) the right to transfer or sell the property and

4) the right to exclude others from the property.

However, those rights were not absolute; they were, as they still are, subject to the rights of society often as codified in law. (This list does not of course include the less tangible entitlements of status and privilege often accompanying such rights in land. Like the "landed gentry" in old England , property owners often were at the top of the heap. Even the republic our founders formed to govern themselves allowed only property owners to vote.)

In the early history of the United States, society placed few limitations on the use of land as it seemed an endless resource, especially with a limited population base. From Jefferson's Corps of Discovery to the Homestead Act to massive federal irrigation, road - building, and energy producing projects, the challenge was not limiting use of land but rather getting it settled, cultivated and developed. However, as the population increased and people began to congregate in cities, the need arose for local governmental control to put some limits on the movement of industry and commerce into residential areas and to keep residents from becoming nuisances to each other. These limitations generally took the form of zoning ordinances regulating incompatible uses, building heights, setbacks, densities, etc. However, as population density grew and spread, some began to recognize a need for planning. Noting the changing times Theodore Roosevelt reminded his constituents in the summer of 1910: "Every man holds his property subject to the general right of the community to regulate its use to whatever degree the public welfare may require it."

This concern reached a peak in the 1960s and 70s as members of Congress observed that the balance between economic growth and development on the one hand and protection of natural resources on the other had tipped too far in the direction of the former. As a result, they moved to expand legal limitations to address growing problems of dwindling natural resources and environmental degradation. During this time Congress enacted federal laws that have had significant impacts on land use: The National Environmental Policy Act, The Wilderness Act, The National Forest Management Act, The Endangered Species Act, etc . Many of the states passed their own versions complementing these laws.

These Acts, whether intentionally or not, inherently affect the balance between the public interest in environmental conservation and private interests in economic development of real property. It is particularly in this area of land use, where the police power that allows the state to regulate on behalf of the general welfare without paying property owners for lost rights butts heads with constitutional limitations on the taking of private property and the requirement that when such a taking occurs the owner be "justly compensated."

Oregon, Land Use Planning and Governor Tom McCall

At the same time Congress was enacting this legislation, Oregon was also addressing the balance between public and private interests in land with Oregon's Governor Tom McCall spearheading an effort to establish a land use planning system that would serve as a model for the country.

Nowhere has land use been more of an issue than in Oregon. From the passage by the Oregon legislature of the first Oregon statewide land use planning laws in 1969, when inquiries came in from across the world to use it as a template for planned and limited growth, to its threatened demise through M easure 37, passed in 2004, when inquiries came in from across the globe on how to avoid it, Oregon has been at the center of the action. And no one is more associated with Oregon 's land use laws than Governor McCall.

Now, more than two decades after his death in 1983, and over three decades after he left the governor's office, Tom McCall remains the defining figure of Oregon politics. It was during his tenure in office (1967-1975) that Oregon gained its reputation as a national leader in innovative public policy.

The McCall era saw Oregon provide public access to virtually all of its beaches; adopt the first bottle bill in the nation; clean up the Willamette River; and enact the country's first statewide land-use planning system. Although many of these concepts did not originate with McCall, he was the cata ly st and provided the leadership to make them a reality.

Born in Massachusetts in 1913, McCall divided his time between his grandfather, Massachusetts Governor Samuel Walker McCall's estate and his father's Prineville area ranch until he was nine, when he settled permanently on the ranch in the midst of a family that read the classics and played music together and for whom lively political discussion was a regular part of life.

Gregarious and dynamic through college, McCall, though conscious of being solidly part of the establishment, admired and befriended those on campus who challenged it, particularly those involved in campus journalism, his chosen field. He said that as he grew older and saw more of life he became more sympathetic to their point of view. It was as a young journalist in Moscow, Idaho that he first became actively involved in environmental issues. His years on the ranch had given him a respect for the land and an appreciation of its spiritual as well as practical value. It was in Idaho that he became publicity chairman of the Latah County Wildlife Federation, which advocated for the outdoor life including hunting, fishing and conservation. It was also there, in the middle of the FDR administration, that he started a Young Republican club.

Many of these early experiences seemed to coalesce when after a stint as a Navy war correspondent in the South Pacific, he got a job in Portland as a talk show host on KEX radio. Over the next twenty years, McCall built a statewide reputation as a journalist. In 1962 he produced the award winning documentary Pollution in Paradise, which called for measures to clean up the Willamette River . In 1967 he began his first term as Governor and tackled many of the issues noted above. But it was in a 1971 speech to the Jaycees that he uttered his famous

We want you to visit our State of Excitement often. Come again and again. But, for heaven's sake, don't move here to live."

A bit later adding the slightly mitigating

Or if you do have to move in to live, don't tell any of your neighbors where you are going.

One visiting family reported returning from a hike to their car parked at Timberline Lodge, only to find a business card attached to their windshield reading

"Tom Lawson McCall, Governor on Behalf of the Citizens of the Great State of Oregon, cordially invites you to visit.

..Washington or California or Idaho or Nevada or Afghanistan

This general sentiment was bolstered by other tourist warnings such as "Last year in Oregon 677 people fell off their bikes, and drowned." Similar experiences reached the national press, which dutifully spread them. The Governor's office began receiving inquiries asking whether special permits were required for out-of-staters to visit Oregon . Special permits aside, McCall, looking eastward at unbridled and unplanned development, was seriously concerned about growth. In fact, he changed the name of the state's economic development quarterly from "Growth" to "Quality" (later renamed again "Progress"). Concerned about a rising growth rate, McCall knew his attempt to stem the flow would not be easy; he saw Oregon as a major battleground for land use planning. He moved forward because he worried that Oregon would become the center of a megalopolis ranging from Seattle to San Francisco and that this would "be committing some of the richest farmland in America to supermarkets and suburbs," and because he thought the timing, with the rising tide of environmental consciousness, might be favorable to preserving the awe-inspiring natural beauty of the land.

Other influences also moved McCall. He was well aware and appreciative of the attitude of the Pacific Northwest Indian tribes who were astounded when the U.S. government tried to negotiate with them for the transfer of their lands, an act which they looked upon as preposterous, like trying to "buy or sell the sky." They were forced to sell their land anyway. And there was former Secretary of Interior Stewart L. Udall's book The Quiet Crisis arguing for land use planning to avoid the deleterious effects of unbridled development.

McCall was convinced that: "Unlimited, unregulated growth leads inexorably to a lowered quality of life." In 1969 the Oregon Legislature passed Senate Bill 10, which required every city and county in the state to have a comprehensive land use plan that met state standards. In 1973 State Senator Ted Hallock, chair of the Senate Environmental and Land Use Committee, and State Senator Hector Macpherson sponsored Senate Bill 100, which created the Land Conservation and Development Commission (LCDC) to oversee and implement Oregon 's land use laws by approving or rejecting land use plans from around the state. Opponents argued that the bill would result in interfering with and confiscation of private property. One opposition group referred to the bill as "the biggest land grab since our great-grandparents took this land away from the Indians.." On May 29, 1973, McCall signed the bill into law.

Far from being a draconian instrument, the plan was designed to provide flexibility. General statewide goals were established. Then it was up to the counties ( and cities to designate the land within their boundaries for uses that they, knowing the area, thought were most appropriate (i.e. establishing the best farmland as exclusive farm zones, etc.) Urban Growth Boundaries were established around every city, but there were provisions for expanding them if the need arose. There was recognition that the future would bring change and provision in the plan to accommodate those changes. Whether that accommodation was fair was to be a matter of implementation.

In 1976, 1978 and 1982, when he was dying from cancer, McCall actively opposed initiatives to repeal SB100 saying " if the legacy we helped give Oregon and which made it twinkle from afar--if it goes, then I guess I wouldn't want to live in Oregon anyhow."

During his time, it was said about McCall that when he arrived on the scene, Oregonians hadn't really defined who they were but when they heard it from the mouth of Tom McCall, they said: "Yes, that sounds right; that's what I'd like to be." They bought in, and their actions reflected that buy-in. There was a pride in who they were -- people who recognized and appreciated and were working to protect the unique and powerful beauty of the land.

Now, over three decades later, more people than ever are moving to this "State of Excitement." Many have never heard of Tom McCall and do not understand to what degree the farms and forests and open spaces they enjoy are due to his and others' attempts to plan for the future and how easily, without careful thought in making changes, all that can be lost.

The push for changes to the land use planning program comes from various directions. To be sure, some are speculators, who look forward to taking advantage of land whose development value has been greatly increased through the years by the very land use laws they seek to circumvent. But others are individual landowners who have born e the burden of those laws and believe the burden has not been fairly shared by others in the state.

The tension between these forces reached a climax in 2000, when Oregon voters passed Measure 7, a citizens' ballot initiative that restricted the power of state and local governments to prevent development. The Oregon Supreme Court struck down Measure 7 on a constitutional technicality. But voters enacted a similar law - Measure 37 - in 2004. Measure 37 ensures that if the state or a local government wants to apply development restrictions to private property, it must either pay the landowner for any reduction in value resulting from the restrictions or drop the restrictions -- the latter being the only realistic alternative as state and local governments cannot afford to satisfy the claimed reductions in value of the properties in question. The concept behind the measure was that landowners should be compensated for any reduction in property value caused by a land use restriction . So far, many thousands of claims for compensation under Measure 37 have been made (Currently, the amount of compensation requested for claims is over $15 billion.) and no compensation has been paid; therefore, the practical effect of the measure is to remove land use regulations, thus seriously limiting the power of state and local governments to control land use decisions.

The Supreme Court and Kelo v. City of New London

Oregon 's Measure 37 is not the only new chapter in the story. In its 2005 decision, Kelo v. City of New London , the U.S. Supreme Court supported the local government's use of eminent domain even when property taken from a private party is given to a private development corporation. In Kelo, the City of New London, Connecticut had approved an integrated development plan intended to revitalize the city's struggling economy. Under the plan, certain private properties were to be purchased and razed. Several of the affected property owners refused to sell their homes, arguing that, because their property was to be transferred to a private development corporation the land was not being taken for a "public use," and thus the city did not have the right to condem n their property. The Court disagreed, finding that given the nature of the development plan, the process the City employed and the nature and degree of the public need, the city could use its power of eminent domain to implement the plan. It should be noted that in Kelo the property owners were not interested in compensation; they did not want to sell under any circumstances. In deciding that given this set of facts a local government could use the right of eminent domain to force property owners to sell, the Kelo court seemed to broaden the power of the state.

What Next?

Voters across the nation have had the most recent say in how to balance the various narratives at play in the land use debate. Property rights questions were on more state ballots in 2006 that any other single issue. Those ballot measures primarily addressed the two distinct issues described above: the use of eminent domain and how far regulations may restrict the use of land without compensation. In general, the eminent domain measures -- many in direct response to Kelo -- were designed to prohibit the government from taking private property for private economic development, while retaining the right to take property for public use (e.g. schools, roads, etc.). Many of these measur es adhering to the "rugged individualist" and "fairness" narrative s passed around the country. The initiatives aimed at regulations followed the lines of Oregon's Measure 37. The failure of all but one of these measures around the country is an indication that voters - many of them aware of the unfolding Measure 37 drama in Oregon - continue to search for fairness between unfettered property rights and the benefits to society from limitations on those rights.

Whatever direction we as a society decide to take, there can be no question regarding the impact of our human behavior on each other and the land on which we live. In this integrated, interdisciplinary, interdependent world, all signs point to the wisdom of collecting our best thinkers and trying to plan for the future. We are all in this together, and our children and grandchildren look to us to develop a land ethic for tomorrow as farsighted as possible and as fair as possible to landowners, to those who share their community with them and to those who will come after us.

1. Except for Louisiana, which is still bound by law derived from the Napoleonic Code.