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Oregon's vistas may get less scenic

Long a model for protecting rural areas, the state faces a property-rights backlash that could ripple nationwide.

When voters in Oregon recently approved significant changes in the state's unique land-use law, many property owners won an important victory. Now, local officials must either compensate owners for regulations that reduce a property's value or waive those restrictions.

But approval of the controversial ballot measure here also signals what is likely to be a nationwide examination of government efforts to prevent sprawl, preserve farmland, and protect vistas. This is especially true since Measure 37, as it was called, parallels the growing effort to change the federal Endangered Species Act in order to give more slack to farmers, developers, and other private property owners.

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"I believe that Measure 37 or variations of it will soon sprout in other states," says Dave Hunnicutt, executive director for Oregonians In Action, the property rights group that successfully convinced 60 percent of voters here to approve it and now is getting calls from around the country. "It represents the chance to prove that you can achieve a balance between good land-use planning and the protection of people's rights and investment in their land."

Other property rights advocates agree, although they warn of a backlash if the public perceives that a few landowners are responsible for spoiling the landscape. Most people still don't like developments where cows used to graze.

"If other private property groups don't get greedy and don't go too far, my guess is they will have some success," predicts Chuck Cushman, founder of the American Land Rights Association in Battleground, Wash.

At the base is the longstanding debate over individual rights versus the public good.

Former Gov. Tom McCall (R) warned the state legislature in 1973 that "coastal condomania, sagebrush subdivisions, and the ravenous rampage of suburbia ... all threaten to mock Oregon's status as the environmental model of this nation."

That year, Oregon enacted requirements that local plans meet statewide growth and planning goals. Several years later, a Land Use Board of Appeals was created to settle local land use disputes. Over the years, nearly a dozen states (among them, Florida, Georgia, Hawaii, Maine, Vermont, and Washington) adopted strong land use laws as well.

Meanwhile, state and federal courts began ruling in cases involving the "taking" of private property through government restrictions on what the owner could do with the land. The Fifth Amendment to the US Constitution says that private property shall not be taken for public use "without just compensation." Still, many property owners were frustrated by what they saw as inadequate compensation - resulting not only from local regulations but from property restrictions tied to the Endangered Species Act.

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Yet Oregon's "urban growth boundaries" seems to have worked, according to Northwest Environment Watch, a Seattle research organization. During the 1990s, Portland lost half as much rural land and open space in comparison with other US cities."The bottom line is that Oregon's land use laws have been highly effective," says Clark Williams-Derry, the organization's research director.

All of that is about to change, however, as cash-strapped communities here figure out how to cope with the new law.

Meanwhile, critics of the Endangered Species Act have been trying to change this influential law for years, but without success. Under the law, the federal government must develop recovery plans for any plant or animal listed as endangered or threatened. That typically starts with the designation of "critical habitat" where human activity is severely constrained. Today, there are some 1,200 listed species, most of which are found on private property. Now, with a more conservative grip on Congress and Rep. Richard Pombo (R), a California rancher, as chair of the House Resources Committee, reform is much more likely to happen - as was demonstrated this week with the Bush administration's announcement that critical habitat for endangered Pacific salmon will be reduced by 80 percent.

In any case, the Oregon vote is sure to have an energizing effect across the nation.

"It has far-reaching implications for other states that have pushed layer upon layer of regulation on landowners," says J. David Breemer, an attorney with the conservative Pacific Legal Foundation in Sacramento, Calif. "Although the public generally favors environmental protection, there's still a deep well of respect for private property."

As the debate grows over land use law-making and the likelihood of more ballot measures, there are sure to be more court battles over private property rights.


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