Oregon Ballot Measure 39

Covering some local issues until the election.

More than 200 years ago, a large group of the more powerful among the people (of European descent) populating the colonies governed by the British crown decided that they had had enough of what the King was dishing out. Specifically they wanted the freedom to live the way they deemed fit, but few today get that the major driver behind status and success, the prime indicator of wealth and security, was land. The high rollers were land owners, and like industrialists or railroad magnates later in the history of the United States, they were the movers and the shakers. Recall that land was the primary resource in colonial America. There was plenty of it and it seemed to be unlimited in scope.

But that sentiment translated down to the common man too. The spirit that thrived in the American colonists was that freedom equated to owning your own little plot of land, where no one could tell you what to do and you could make what you could with it. And, of course, the primary desire was that there would be nothing the government could do to deprive you of that land, and that defined freedom for them in a tangible way. Would this have been a more understandable aspect of freedom than freedom of political expression?

You and I today are pretty far removed from that. Land isn’t an unlimited resource any more. Far from it, trying to acquire land in the United States can be an expensive purchase, the market recognizing the limited nature of the resource. Most of us count our freedom in this country in terms of how we can express ourselves, or how we can reach our economic potential without interference from the powers that be.

However, I think that we would be mistaken to forget how important the right to own land free from government power truly is. There has been a tendency to interpret the Fifth Amendment to the Constitution, the protection of just compensation when eminent domain is used, in the context that “public use” is not just public transportation, public buildings, parks and the like, but for anything that contributes to the “public good.” And in the case of modern land use and urban planning that includes economic rehabilitation of an area by creating a zone of new commercial use in order to create jobs and attract people and businesses.

This has been going on for a long time, but most people really didn’t get what the true meaning of what was going on until last year, when a land owner decided that the founders of our great nation really didn’t have just any abstract “public good” in mind when they crafted the Fifth Amendment. The case eventually made it’s way into the Supreme Court and into our public consciousness as Kelo v. City of New London. In that case, the Supreme Court decided that a city or local government could take a property and give the property to a private party, in this case a developer, if what the developer was going to do constituted a “public good,” as opposed to a more direct public use, such as a power plant or public office building.

The backlash from that has yielded at least 23 states passing laws or changing their own constitutions to outlaw this sort of eminent domain use in land use planning. And now this trend has come before Oregon voters in the form of Ballot Measure 39.

I’m not sure that you need to read the language of the entire measure, as I thought the shorter explanation was adequate and didn’t leave anything important out. Any controversy around this measure is probably not about how it is worded or unseen future issues arising from it’s language, but more about the philosophies of those who are for or against it.

I expected that there would be tons of arguments for and against and this would take up considerable space in the ballot guide, but truly there were only three contributors to the FOR arguments and two contributors to the AGAINST arguments.

The arguments for this measure included much of what I stated above, namely that people hold to the right of property and were shocked at the result of Kelo v. New London. I think people were under the impression that most of the time people were fine with the government buying their land for altruistic purposes, or that government possibly just tried elsewhere when they couldn’t buy up all the property they needed. Basically the arguments are that government should only take land by eminent domain if the end result is publicly owned public use.

I think it’s generally understood that the motivation for trying to use this tool for planning in order to re-invigorate neighborhoods or regions and improve the lives of those people living there, perhaps benefiting people living in the larger region as well. Generally the motivation is a good one. I think the point we are all trying to make is that the potential for corruption here is great, and there is significant argument to be made (at some other time) about whether this type of land use planning is the government’s job in the first place.

Interesting that unlikely partners like conservatives and the Green Party and real estate organizations are all seemingly for this measure.

For the most part, I have no beef with the arguments for, and as you can tell by my article so far, I tend to agree with them. But I wanted the arguments against, and any other arguments I heard from newspaper opinions and blogs, try to convince me otherwise. So first I’ll look at the arguments made by the contributors to the voter’s guide.

1. It will be more expensive to redevelop areas and create jobs. Basically both arguments against talked about the millions of dollars extra that taxpayers would be on the hook for using this type of land use planning.

Again, I would argue that government should be limited in how it uses land use tools to re-arrange the economy and the environment, but the real squirrelly thing about this is that the grip is about the other part of this measure that’s designed to make the compensation for land owners part of eminent domain for fair for the land owners (yes, I’m sure this will be taken to court when it passes for having “two” issues instead of the required one issue per measure rule). However, despite the estimation of cost from the “un”-partisan committee describing the measure, I think that the extra cost involved here would only result because the government was being penalized for not putting up a fair offer for compensation. That’s the way I read the language.

2. “If your community wants to develop a business park to create jobs, the measure would require the government to own it.” Well, yes. That’s the point of the bill. The authors don’t want eminent domain to be used for economic redevelopment. Big shock there.

3. Much support for this measure has come from out of state. Basically this is a scare tactic. The threat here is that since someone from out of state wants this to happen, there can’t possibly be any reason for us to want it and there must be some terrible underhanded purpose behind the “outsider’s” desire to pass this measure.

Which, of course, is a terrible reason to shoot the thing down all by itself. Just because some support is out of state doesn’t mean the measure has no value to Oregonians. And by the way, the League of Women Voter’s argument against was inaccurate and deceptive in this regard (at best) and was criticized by Willamette Week for this very thing.

The American Planning Association also paid for an argument against. They say much of the same, adding several times that if a community wants to develop this or that measure 39 “may not allow it.” Which is misleading, because if the community can arrange for the land without forcing any landowner to sell (I.E. voluntary land acquisition) and create the incentive for businesses to build themselves this would be no problem. The measure is designed to discourage the abuse of private property. It’s not anti-redevelopment or anti planning.

I love the way they say, “Hidden in the middle is fine print that would cost you hundreds of thousands of dollars when condemnation is used to buy property for public purposes…” Funny thing. It’s not hidden. And I address it above.

Also I found it funny that the argument states that the proponents can’t bring up a single instance of abuse, right after the arguments in favor list a few instances of abuse within the state within recent times.

Now I’ve ragged on community planners for a bit here, but I think I should be fair and point out that eminent domain can be an effective tool when trying to encourage redevelopment in an area that needs it, or invite businesses in and creates jobs where they are sometimes needed. This Oregonian editorial lays that argument out pretty good.

Typically, as in the city of Hillsboro's creation of Intel's Ronler Acres campus, the public purpose behind such partnerships is to attract industry and create thousands of new jobs. Few Oregonians would argue today that Ronler Acres should not have gone forward because the city of Hillsboro used the threat of condemnation to make the project happen. "It was very clear that the private sector couldn't do it," Hillsboro Mayor Tom Hughes said Tuesday. "The public sector could, and the difference was (the power of) eminent domain."

I also understand that the public sector is often very reluctant to use this unless they feel they have to.

However, the way I see this measure, it’s an argument between those who believe that good planning of the local economy and lifestyle of communities trumps the right of individuals to command their own piece of land, vs. those who believe that the right of citizens of this country to property of their own without interference from government is foundational to the freedoms of this country. I believe that governments need to get more creative about planning without stomping on the rights of the people.

This guy seems to agree.

OPB did a piece on this. Randy Leonard argues with the Hogan Electric situation (which is one of the arguments for in the guide), stating that the business doesn’t actually occupy the site any more, that it’s currently vacant.

Which is food for thought. But so is this: the lot is in Lents, which Leonard and the city are trying to redevelop. But what the article doesn’t tell you is that Lents used to be a vibrant neighborhood center. But then eminent domain came in and split the neighborhood in two for the sake of what is now I-205. The decline of Lents began there. What serves to improve one community affects another, yes?

Here’s some more opinions. For. Against. For (this one rags the Oregonian and Medford opinions for their apparent lack of reason on this issue).

Jack Bogdanski is, well, I think, pretty much for it. Sort of. In a way.

While I'm on the subject, let me weigh in on upcoming state Ballot Measure 39: Yes, yes, a thousand times yes. I'm no property rights nut, but having watched Portland's future -- its financial destiny and its character as a place to live -- handed over to The Usual Suspects, I'm through with Portland-style condo tower ripoffs. The government should not be able to appropriate your homestead to satisfy some political crony's greed.

Yeah. Just maybe.