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Property rights and protection: We canąt have it both ways

 H&N 4/27/05, by editor Tim Fought

   Those are nice sentiments that Oregonians have shown with regard to land use. A new poll suggests that two-thirds of the people wants zoning that both preserves individual property rights and protects farmland for farming.

   Well, that canąt be done. It is always a breach of individual rights when the public says the land must be one way and the owner would have it another. You canąt “balance” acts that are inherently contradictory.

   Still, when polled recently, 67 percent of Oregonians said it is very important to protect property rights, and 64 said it is very important to protect farmland for farming.

  Itąs not that Oregonians havenąt thought about the conflict in those values. Itąs just that their thinking is incoherent.

  When put to the test, Oregonians by decisive margins prefer to elevate “private rights” over “public good” (56-38), but would opt for “public planning decisions” over “market-based decisions” (69-23). If you can make sense of this, good for you. All I can say is that it reflects the power of language to sway poll results and the failure of the citizenry to hew to logic, or appreciate the necessity of hard choices.

   The poll was released last week by the centrist Oregon Business Association and a Portland State University bureau. It was designed to test public sentiment about Measure 37. That was the initiative last year that allows some landowners to develop their land as they wish or be compensated for forgoing the development.

   After Measure 37 passed, there was talk about how Oregonians had a sense of unfairness about the 1970s land-use laws. They didnąt like it that the laws seemed to change the rules in the middle of the game. It wasnąt right that people bought land with the possibility of building retirement homes, but then the state said they couldnąt.

   Oregonians, however, canąt have it both ways. Trying to do so means only that, as a matter of practice, no zoning law can ever be more restrictive.

   Thereąs no doubt that the land use laws Oregon passed in the 1970s tightened restrictions on much of the stateąs rural land. That was the point of the laws, to slow or stop the conversion of rural lands to urban and suburban development. Measure 37, at its base, simply repeals any part of those laws that imposed greater restrictions.

Buyouts arenąt an option

   Since the measure comes a quarter of a century later, though, many landowners have purchased their property under the new laws. So, Measure 37 doesnąt apply to them. But for people, and their families, who owned land before the 1970 laws, Measure 37 is a simple rollback.

   Yes, Measure 37 did give government an out: It could always pay landowners for the difference in values between the restricted use and whatever might have been permitted otherwise.

   This is a sounds-nice kind of idea, airy economic theorizing. But even if you could imagine a process to figure out the values of hypothetical investments in developed land, governments in Oregon wonąt ever have the money to pay much in the way of compensation.

   Oregonians will eventually have to choose between protecting farmland and preserving property rights. Actually, by failing to choose, they have already chosen. Once fields and pastures are paved over, they arenąt returned to farming.

   So, for me, the passage of Measure 37 has given a new urgency to the struggle to preserve irrigated agriculture in the Klamath Basin.

   There are few things that I believe as an article of faith, as distinguished from things I count on as matters of logic and science, but this is one:

   I believe that a healthy society preserves the connection between city and countryside, between concrete and dirt, between urbanity and agriculture. A healthy society has an intimate and direct connection with the land, with the production of food, and with the virtues associated with farming - hard work, both self-reliance and cooperation, and a sense of awe at the gifts of the earth.

   The Klamath Basin has all those things, and they are reasons for living here. They are reasons for intense effort to preserve farming. This would be a lesser place without the irrigated pastures and cattle, potato and onion fields, and the interesting variety crops of horseradish and mint.

But retirees could buy out farmers

   Yet, many elements are in place for a radical change in the way humans use the Klamath Basin.

§         We have tons of land that has been in the same families  for decades, predating even primitive zoning ordinances and eligible for claims under Measure 37.

§         A good share of that land is in the hands of retirees, who depend on the rental income, and is headed for heirs who may want nothing more than to cash out.

§         As the past two years have proven, thereąs a large and apparently growing demand from well-to-do, out-of-Basin retirees for large tracts and that pleasant country life.

It doesnąt take much imagination to imagine irrigated agriculture reaching a tipping point: Input costs such as electricity, petroleum and lawyersą fees are rising quickly, output prices face mounting competition from global production, and both trends are aggravated by the steady political and legal pressure resulting from the unresolved struggle over water rights in the Basin.

There is some obvious irony in this: The environmentalists who think that killing off agriculture will result in a restoration of wetlands in the Basin are mistaken. What will follow agriculture is what always follows farming: suburbia.

Alarmist? Perhaps. A good sharp rise in long-term interest rates could protect Basin farmland for a good many years.

But thereąs no guarantee that what has been pasture and field for a century will remain so one day beyond the market-based decisions that landowners make implicitly when they plant or explicitly when they sell.

There is certainly no guarantee in a citizenry that vainly hopes to preserve two values that are in inevitable collision.

Tim Fought is editor of the Herald and News. tfought@heraldandnews.com.





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