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November 10, 2004

Lessons from Measure 37

Environmentalists feel like they have been sucker-punched with the overwhelming passage of Measure 37 in Oregon.

Measure 37 was an initiative sponsored by some large timber companies and property-rights advocacy groups that requires state and local governments to compensate property owners when land use and other regulations reduce the value of property by limiting its use. Alternatively, governments can rescind regulations. Because of the way the measure is written, the potential damage to environmental and land use protections that  the public otherwise values is great. Polling shows that voters did not know or did not believe the full reach of the measure, which has given rise within the environmental community to debate over what to do. (Here are some links to arguments pro and con.)

The face of the measure presented to voters was an elderly lady denied use of her property or compensation when land use and other regulations reduced its value or limited its use. To environmentalists, the sinister soul of the measure was an ambush of Oregon’s much-valued land use planning system.

How did it happen? Was it nothing more than a clever sneak attack by the property-rights movement and developers that fooled voters by presenting a falsely benign face? Did voters really know what they were voting on? Surely they didn’t understand the consequences for land use and protection of the environment in Oregon.

If so, we will be tempted to conclude, the correct response is to undo the damage any way possible. Get the courts to overturn the election (it worked the first time, with Measure 7 in 2000). Get the Governor and friendly legislators to hack and trim and hedge the measure (it is not a Constitutional Amendment so it is open to legislative amendment or even repeal). After all, one good sneak attack deserves another.

Tempting. But wrong. Wrong politically. Wrong ethically. Wrong for the policy direction to which it constrains us.

Taking a few steps back, Measure 37 is the latest “teacher” of these lessons:

·        For all the support the environmental community has built up over the years, it digs itself into a hole when it fails to recognize the spread of both apparent and real grievances with our land use and environmental legal apparatus

·        No matter how good our laws and regulations, they are weak reeds without a nurturing and supporting public

·        Our reliance on law and regulation has limits that behoove us to explore other pathways, including better use of the market and incentives (broadly taken)

These lessons are at the heart of two immediate junctures for the environmental community in Oregon (and maybe one in Washington). First, how will the environmental community respond to passage of Measure 37? Secondly, will Metro pursue habitat protection in the Portland urban area through a strict or much-looser regulatory regime?

Fortunately, we have guidance on both from two of the wisest and most committed stewards of the environment and community I know of.

Congressman Earl Blumenauer is preaching that the correct response to Measure 37 is not to overturn it with some legal or legislative maneuvering, because all the public will do is tell us even more emphatically, “damn it, we meant it.” While it is true that the public did not know the full potential consequence of the measure, they did emphatically mean what they said about the principle of compensation. And voters had experienced enough ham-handed government regulation to be sympathetic.

But, Congressman Blumenauer rightly points out, those who sponsored and supported the measure should bear some responsibility for its consequences. Typically, one of the great things about sponsoring an initiative is that you get to escape responsibility. So, he argues, put the sponsors on the hot seat for coming up with a plan to implement the measure that does what voters do want: provide relief for property owners with legitimate beefs, preserve fairness and certainty in local zoning and permitting, preserve the benefits of Oregon’s land use system—and find a way for governments to pay when necessary without gutting the rest of government.

There are risks with this, of course. But it does one important thing: it treats the decision of voters as legitimate, if imperfect. And, just as importantly, it begins to put pressure on the more responsible of those on the other side.

At the same time, it is important to continue to give the public an honest look at what is at stake and the consequences of Measure 37 as they unfold. I stress honest. The public is wary, even disbelieving, of claims that the sky is falling. We have to get out of the mold of focus-testing the cleverest slogan as a means of conversing with the public.

That’s the ethical part. It is also, in the long run, smart politics.

David Bragdon, Portland Metro Council President, is the other leader who is giving us smart environmental politics. Politics with an eye on the larger, longer-lasting consequences of decisions for both community and the environment.

As David faced the prospect this year that Metro might declare fully one-third of the Metro region as wildlife habitat subject to a full panoply of regulation at the regional level, he awoke to the realization that this was short-sighted and would undoubtedly be short-lived. And would undermine the capital Metro has built up.

So, he has proposed a much softer, more flexible approach that focuses more on the largest threats (much less on individual residential property owners) and relies more on local rather than regional implementation and enforcement, This has engendered a strong, to put it mildly, response from some in the environmental community who believe they have been betrayed.

In fact, David read the lessons of Measure 37 before the votes were cast. To his credit it wasn’t just about avoiding a public backlash, it was equally about finding alternative pathways that build toward a more enduring reconciliation of environment, economy and community.

Which is the third main lesson we must heed. Looking forward and realizing that many environmental issues reach to our individual behavior, we should also admit how clumsy and self-limiting regulatory approaches can be in these circumstances. We need to be happy warriors exploring alternative means to the same ends. (NEW has a number of ideas along these lines to offer.)

Now, none of this is to argue that regulation is not critical to sustainability nor that Measure 37 will not have grave consequences. It does argue that a narrowly defensive posture is unbecoming and unproductive.

Posted by David Yaden | Permalink


One approach to this would be to recognize its validity but to consider that the voters might also have been asking for fairness on the part of land owners. If property values are increased due to government regulations, that increase should benefit government. One example is the increased value of property in proximity to green belts, wetlands or other amenities. If government regulation can be shown to have subsidized property owners, they should perhaps be asked to compensate that value or a good portion of it back to government.

Posted by: Ethen | Nov 12, 2004 4:58:11 PM

Assorted responses to Mr. Yaden's thoughts, which have a veneer of reasonableness but bear little relation to reality:

1. One thing I do agree with is his comment about getting "out of the mold of focus-testing the cleverest slogan." There was dissension within the ranks of those opposed to Measure 37, just as there was four years ago in the anti-Measure 7 camp. Those running the campaigns opted for the wisdom of political professionals: focus groups, message discipline, targeting certain demographic groups, etc. The anti-37 campaign focused almost entirely on cost, bureaucracy and the unfairness of neighbors facing different rules, i.e., on focus-group-tested slogans. Many of us in the conservation community were extremely frustrated that we weren't taking our stand on the value, indeed the essential necessity, of land use and other conservation laws that would be undermined. I know the people who ran both campaigns--they are very good and very dedicated, they cared passionately and they worked indefatigably. They took their best shot, I don't mean to berate anyone, and I doubt seriously we would have won with any strategy. But, dammit, I would rather gave gone down flying my true colors. Campaigns, even when they lose, can educate on issues for the future--but instead of focusing on why land use planning is essential, and on the damage to the environment that 37 would do, our side tried to out-pander the reactionaries, appealing to vengeful populist feelings about high costs and "unfairness." But in any case, the relevant point is that *neither* side made this a referendum on land use planning or environmental protection generally. The proponents of 37 got away with saying, "No one wants sprawl--this won't hurt real conservation or neighborhoods--this is about unnecessary regulations that treat people unfairly."

2. In fairness to those running the campaigns, there is probably nothing that could have been done to head off either Measure 7 (at the ballot box) or Measure 37. We were almost certainly doomed the moment the ballot titles were drafted; in both cases, the ballot titles (all that most disengaged voters ever knew about the measures) might as well have been deliberate acts of sabotage aimed at Oregon's future. The ballot title of 37 contained a double lie. It spoke of compensation, when there would be none and the goal was eliminating conservation laws, and it spoke of regulations that lowered property value. In describing the measure, Mr. Yaden still assumes this falsehood. Regulations generally *bolster* the value of resource land *in its current use*. Measure 37, like Measure 7 before it, is about *speculative* value. This is what I wish the anti-37 campaign had proclaimed incessantly from the rooftops. Instead, a large percentage of voters thought they were protecting victims deprived of the value of their current house or farm by an oppressive government.

3. The sky is now falling. It will be falling slowly for a long time. This is the tricky thing--how to convey huge, dreadful impacts that will play out over generations rather than being immediately visible. No, we won't see some horrible disaster in the next few years (well, those of us paying attention will be horrified, but most people won't be that heavily impacted in the short term). Middle-aged people like me probably won't ever suffer food shortage due to lost farmland. But my daughter is being ripped off of the food supply that may actually be critical by the time she is my age, and her grandchildren are being ripped off of the timber supply they will desperately need a hundred years from now, as currently cut-over land goes to subdivisions instead of the reforestation that won't feed the next-quarter bottom lines of the timber companies. The loss of fish and other wildlife due to our inability to protect their habitats will show up a lot sooner, but still, over a decade or two, not next year. We can't explain why the vote for 37 was so wrongheaded without telling people, accurately and honestly, that the sky is falling, but in our ADD-addled culture, if people don't immediately see a disaster-movie-quality cataclysm in the next few months, they will shrug off the warnings as being exaggerated. I don't know how to avoid Cassandra's fate.

4. This isn't a gibe I usually hurl at lawmakers, but if Earl Blumenauer thinks that we're going to be able to "put the sponsors on the hot seat for coming up with a plan to implement the measure," he has been spending too much time in Washington, D.C. It ain't gonna happen here in Oregon. The proponents don't have a plan, they aren't going to have a plan, they don't think there should be plan, and no one is going to hold them responsible. They will sneer that "The people have spoken, it's up to the politicians to make it work, that's what we pay them for," and their followers, relieved that they don't have to do any thinking, will readily agree. Then, when no one is happy with the result, they will blame politicians for having failed to implement their perfectly reasonable proposal.

5. The faux-reasonableness of Mr. Yaden's discussion emerges when he speaks of "real grievances" and "ham-handed government regulation." People who care about the most minimally responsible land use and environmental regulation really shouldn't spout this kind of nonsense to make themselves sound moderate. Oregon's land use laws aren't (well, weren't) draconian--those of us who actually work with them know that they were barely there at all. They were riddled with loopholes large enough to drive a DC-Cat through, on its way to build another subdivision on agricultural land. Somewhere out there I suppose there might be someone who was actually unfairly constrained from a valid and needed action by a land use regulation that didn't fit their circumstances. I have never actually encountered such a case, but in theory it might exist. In reality, every hard-luck story I have ever heard was a fraud. I was a journalist back in the '70s, when Oregon voted on and rejected measures that would have rolled back land use planning (those measures addressed the issue directly, and lost); we journalists used to have fun tracking down the anecdotal claims, which *always* turned out to be unfounded. Look, given how very light the level of regulation under the land use laws really is, it can be stated almost categorically that if you run afoul of land use regulations, you are trying to do something wrong--something that abuses the land, depends on a reckless, fossil-fuel based economy and would deprive future generations of the resource base they will need. There is absolutely nothing unfair about the fact that regulations were imposed at some point on landowners who previously would have been free to develop. That is like saying that because someone in a lawless frontier area raped and murdered, laws enforced against those things once government was established for the area shouldn't apply to them. We finally grew up (slightly) and recognized that we were no longer an endless frontier, and that a society's need to conserve its land and resource base outweights individual economic desires. To the extent that people even knew what they were voting for, those who supported 37 were opting for a reactionary flight into juvenility. I vehemently object to the phoney pose of moderation that suggests that they have a legitimate position. I'm not saying that my insistence on the reality that land use planning and environmental regulations are necessary, and that the laws were actually too weak already, points toward a successful political strategy. I don't know how a 60% majority for 37 can be turned into a "nurturing and supporting public." I'm just responding to Mr. Yaden's plea that we be "honest."

6. David Bragdon is a fink. If something is necessary, then it is necessary, and we should honestly address the need for *everyone* to cooperate in regulations that are needed. I manage a volunteer program, so I don't dismiss the word "voluntary" lightly, but to speak of voluntary environmental regulation is to be an utter fraud. It's another form of faux-reasonableness, a way of pretending to environmental concern without actually taking responsbility for protecting the public interest. We could ask people to voluntarily refrain from murder, and with 98% or so this would work fine, but the sociopaths who scorned voluntary compliance would wreak enough havoc to uproot civilization. If, say, it is necessary to maintain a riparian zone of a certain width to maintain the health of a stream, then it is necessary to require *all* landowners to honor regulations that protect this underlying public interest, rather than just hope most will. An environmental Potemkin village of "voluntary" approaches just creates a prisoner's dilemma in which the person who sells out the common interest first benefits most.

We're in a deep hole, and the first law of holes is if you find yourself in one, stop digging. Conceding points to the reactionary opponents of laws that address environmental necessity is just digging ourselves in deeper.

Posted by: Phillip Johnson | Nov 12, 2004 7:05:15 PM

There's another interesting view of Measure 37 at http://www.tidepool.org/original_content.cfm?articleid=134242

Posted by: Alan Durning | Nov 15, 2004 8:27:16 AM

One key response to Measure 37 will be for the press to start paying attention to it. The Oregonian already recognized that they blew it in their coverage of the measure before the election. What they ought to do now is track the claims process carefully---how many claims are filed? who files them? what the facts are behind the claims. This will be tedious work for sure, but how will the public that voted for the measure feel when they find out that rather than 90-year old widows who want to build a house for a family member they are compensating major timberland owners for the value of the trees in riparian areas off limits to harvest because of Oregon's Forest Practices Act? Only these fact-based stories about what Measure 37 will do are going to change people's minds.

Posted by: Gail Achterman | Nov 15, 2004 10:07:54 AM

How to convince voters to vote against their own best interests? Spend money, lots of it on slick TV ads featuring grandmothers and children who will be at risk if this measure does or doesn't pass. It works everytime. Three words -- campaign finance reform? Put some caps on campaign contributions. Otherwise the deep pocketed donors will control your government and public policy will be determined not by what's best for the public but by what's best for big donors. To borrow a book title from Greg Palast, "We have the best democracy money can buy". It's an interesting form of government. It can hardly be described as democratic.

Posted by: Liz Trojan | Nov 16, 2004 2:37:08 PM

As Gail Achterman points out, there was before the election and continues to be a complete lack of simple scrutiny: exactly who were the people funding Measure 37, what exactly do they stand to gain, exactly what pieces of property are involved, who will win and who will lose? Dollar to a Krispy-Kreme a very few entities stand to gain a huge windfall at the expense of things we (all citizens) actually care about. Yes, the Oregonian blew it, the anti-37 folks blew it, and the task is now (as it should have been all along) to educate folks about the benefits of (and costs of not having) land use laws.

Posted by: Charlie Weiss | Nov 16, 2004 2:39:08 PM

The core of measure 37 is the repeal of land-use planning regulations. Most citizens who supported the measure probably didn't realize that this was the agenda. Informing the public as to the consequences of the measure, by reporting on actual filings and rulings would allow the public to judge for themselves the negative impact and true intent of the measure.

I would also encourage this organization to facilitate landowners in filing claims to expose the absurdities of this measure. Thereby educating the public with real, honest, & factual examples of the measure's harm and unintended consequences. Some scenarios to test follow:

1) For example, if the current landowner files a claim and receives compensation, can a subsequent landowner also file the same claim (or any claim for that matter). I imagine there would be no limit to this maneuver, barring repeal of the law. If the law interprets the measure as only one claim per parcel/plat, how long before a subsequent measure is proposed to "protect" the current landowner. Any attempt to provide a system to mitigate such abuse could be considered selective and "unfair", which is how the measure passed in the first place... The end result of this logic is that the government has no recourse but to repeal the regulation(s) in question, as compensation may be a recurring problem.

2) A landowner 10 miles outside the growth boundary files a claim for compensation, due to said growth boundary. This results in the partial or full repeal of the growth boundary and all related regulations (compensation was not deemed viable - see example 1 above). After repeal of the law, another landowner who owns property .1 miles outside the current (now former) growth boundary sees their property value plummet to due the change. Would such a change in government regulation constitute an actionable claim for this landowner under measure 37? I imagine it would. In addition, after a year or two, most landowners of new construction in the "growth boundary era" would see their property values decline as dense housing is not deemed as attractive as the new sprawling suburbs. Shouldn't these landowners be compensated for such a destructive change in government regulation? Also, does a business or an industrial site that was forced to locate in a particular zoned area (due to former regulations now repealed) have a right to compensation and/or repeal of the measure itself, as it has affected their property values and business since competitors can now locate and build “cheaper” facilities?

3) To offset the costs of the measures' compensation and/or infrastructure to support sprawl, should the government impose system development charges to protect taxpayers. A formula for the true costs of supporting sprawl could be pursued and the charges levied appropriately. Should measure 37 become prohibitively expensive, then a measure of this sort should be offered to the voters to transfer costs from them to the developers...

4) Apply for permits for undesirable businesses in residential neighborhoods, if the permit is denied, file a claim. If the local regulation is discarded, invite the media to the groundbreaking ceremony...

Another key point would be to demonstrate the impact of measure 37 on individual landowners vs. business/corporate interests. I believe most citizens (who supported the measure) interpreted the measure as providing "fairness" to an individual who is at the mercy of the government. Individuals are generally responsible and some may have had legitimate grievances with facets of land-use planning. My assumption is that most of the big ticket and destructive claims will come from corporate & special-interests (e.g. timber companies & real-estate developers). If this is indeed the case, and it is exposed as such, then the public may think twice about the measures effect. Exposing profiteering by direct or indirect exploitation & manipulation by non-individuals would shed light on the inherent flaws & true supporters of the measure. An example of direct manipulation would be developers buying land and then filing claims, profiting on compensation or repeal of regulations. An example of indirect manipulation would be developers "assisting" landowners to file claims, resulting in repealed regulations and subsequent development.

Also, by demonstrating that the land-use planning system not only protects quality of life, but also supports property values, lessens pollution, commute time, etc. would allow for more scrutiny of the measure by "non-environmentalists".

Publicizing the fallout of the measure by the examples above, while not trying to manipulate or overturn the voters voice should result in more support for Oregon's land use laws and hopefully a repeal of measure 37 by the voters.

Posted by: Brian B | Nov 28, 2004 5:43:31 PM

Does anyone know the research/public opinion firms that worked on M37 campaigns?

Posted by: Ian | Oct 22, 2005 3:00:14 PM