When in comes to property rights, all eyes are on Oregon as voters there consider trimming backMeasure 37. But in some ways, Oregon isn’t the most interesting game in town. That honor may belong to Alaska, where voters in the Matanuska-Susitna Borough will weigh 2007’s only regulatory takings ballot initiative in the form of Proposition 1.
While the “Mat-Su” isn’t known much outside of Alaska, it will be an interesting laboratory for examining the next round of “property rights” arguments. It’s likely that activists will try to improve their rhetoric and strategies after their not-terribly-successful outing to the polls in 2006.
I’ll have more to say on Proposition 1 in the coming months, but in the meantime you can find good newspaper coverage here and here.
And here the local paper, the Mat-Su Valley Frontiersmen, inveighs against the measure in an editorial that appears to have been truncated on the web. Still, I thought there was some apt language, so I’ll close with an excerpt:
In this case, one’s rights can make a wrong for all. Hogtying the borough, a city or any special district in how it makes public land use policy will result in a chaotic, expensive system no agency could possibly afford.
Oh, I almost forgot: I do have one big criticism of the editorial’s language. Prop 1 isn’t really a threat to what an “agency” can afford; it’s a threat to what the public—you know, citizens and taxpayers—can afford.
Another reader of this site can offer detailed input as well, as her and I did an award-winning project up there and had a wonderful time doing it. Anyway, when we sat down with the community, we found that people were willing to come to the table to figure out how to preserve what they had up there. They acknowledged property rights but also felt that something must be done to ensure nothing impinges upon what they have; hence, their working toward a National Heritage Area status among other things. In my view its still early, and I see that OR is running another cr*ppy campaign around Measure 49. So I suggest that the folks up there are too savvy to submit to developer FUD, and work should proceed in earnest to produce a decent campaign that points out the results of enacting such a plan; this worked in WA and it will work in AK.
When the Constitution was written, and for more than a century thereafter, “takings” had the meaning we give to the word. I take something from you and you no longer have it, such as the example of the small town with 1,000 inhabitants. But what about this example. You give your child a ball. You tell the child, “this ball is yours.” You then tell the child, “you cannot play with this ball in the house.” Have you taken the ball? The Supreme Court has struggled, contrary to a number of very vocal people in this community, to come find any clear guidelines that would apply to “regulatory takings.”As I review claims filed in Marion County, one argument I frequently encounter is the one that states “I bought this property for my retirement.” OK. Here is a parallel example. I buy stock in Monsanto because they have developed Roundup-resistant soybeans, alfalfa, corn, and sugar beets. This stock could be very lucrative. Society then discovers that these products are “Frankenfoods” and reject them; legislatures ban the use of such seeds. The Department of Agriculture bans their use. My stock tanks. Who owes me compensation?Examine the zoning categories states and counties use. Can you find any that would be called “investment zones.” Land is zoned for its present use. There are exceptions. There are lands designated as urban-transitional, in which the zoning contemplates future changes. Such changes, though, are a guarantee of increased value, and would not apply to Measure 37.Measure 37 proponents and their backers convinced us that there was such a thing as “regulatory takings” embedded in the Constitution. That great myth mortally injured our land use system. The concept is not in the Constitution; that does not mean it cannot be public policy. We the voters embedded it in the statute. Other states have regulatory takings, but they have mitigated the concept with thresholds. I think in Texas (that State we should all aspire to emulate) has a 20% threshold. The regulation has to cause a loss of at least 20% before compensation or waiver is due.In Oregon, if Pop Rights can show that his farm lost anything whatsoever then Pop Rights can do whatever he legally could have done when he purchased the property. Pop Rights could reap millions for a marginal loss.Strip the supposed loss down to a balance sheet. Measure 37’s way of looking at loss is like looking at only one side of the balance sheet.There are also some other, fundamental, travesties at work (or maybe the word should be hypocrisies):1. It is true that 37 does not repeal zoning and comprehensive planning. It merely makes any policy prospective. The vision of the plan is not based upon geography and planned usage. Its application is fragmented because of grandfathered properties. Pop Rights tells us that his vision was vindicated by the Oregon Supreme Court. No. The Court said it was OK, not that it was right. No where in their decision did they indicate that Oregonians acted prudently or wisely in enacting Measure 37. 2. Measure 37 undermines community values. Pop Rights and Right Wing Talk Show “host” Jeff Kropf consider this to be a communist statement; so be it. It is like a law that says if you bought your automobile before 1975 you can go as fast as you want on the highway. All of our liberties are constrained to the common good. We all have liberties, but like the parent’s admonition not to play with the ball in the house, those liberties are constrained. The value I have and the worth I feel is a product of those constraints. We live on land and your land affects my value. it is a relationship of reciprocity. Measure 37 undermines that principle of reciprocity.You can read more on Measure 37, Measur3 49 and takings at my blog, Terroir:http://www.terroirfromtheleft.blogspot.com/
Takings measures are like forest fires, costly to fight and capable of great destruction. We focus too much on fighting fires and too little on prevention. Better community involvement in decision making, resolutions of legitimate landowner concerns and simpler less expensive regulatory processes would help clear out much of the dry undergrowth that fuels these measures while maintaining growth management and environmental goals. To make the analogy that owning land is like owning Enron stock creates tinder for the fire. It’s *okay* to be concerned about someone losing their retirement savings due to rezoning or regulations. Fortunately this is rare, many of us see property value gains with increased regulation even if we resent the burdens and lack of reciprocity in urban areas. Positive empathetic programs that address rural concerns, address right-wing misinformation, and promote a shared burden approach will in the long term be more successful and less costly. I haven’t read up on Measure 49 yet or the Mat-su fight, I hope they are taking such an approach.