Spring/Summer 2006: Land

The Place We Call Home

A history of land-use planning in Oregon

by William G. Robbins

The late playwright, Arthur Miller, had an amazing capacity for understanding the dark side of the human psyche. In addition to his striking insights into human frailty, Miller offered a penetrating moral critique of an American-style individualism that was eroding the larger community's welfare. His deep sense of social commitment, burnished in the theater during the Great Depression of the 1930s, preached against selfishness and in support of the common good. More recently historian William Leach argued, in Country of Exiles: The Destruction of Place in American Life (1999), that Americans have lost a sense of civic commitment, shared beliefs that value public ends and a sense of stewardship for each other and the places they call home.

My own reading of the recent past suggests that such social critiques are especially well suited to the early twenty-first century, with the current broad frontal attack on "commons values," including the rich legacy of progressive New Deal accomplishments--Social Security, public education, and the enhancement of public lands and public places. The aggressive promotion of an ownership-based, individualized, atomized society--including combative assaults on public institutions and the forceful assertion of property rights in seemingly progressive states such as Oregon--appears to be corroding values that we inherit and share as a larger community. In a remarkable pastoral letter issued in 2001, twelve Catholic Bishops in the Columbia Basin reminded parishioners that they held land in trust for present and future generations and that the idea of the common good meant that communities' needs should "take priority over private wants."

Since the Second World War, no other public figure in Oregon spoke more forcefully than the late governor Tom McCall about the "Oregon mystique"--the state's capacity to embrace imaginative ideas to protect its livability and the welfare of its citizens. Before he left office in early 2003, Governor John Kitzhaber echoed McCall's sentiments, referring to "an Oregon identity--and ethic" that distinguished the state from other places. Among those qualities were "a strong identity with the land, a need for healthy natural systems," a dislike for litter and waste, and a sense of humility. Like McCall before him, Kitzhaber believed that citizens understood that quality of life, a healthy environment, and a prosperous economy were one and the same. What McCall, who held office from 1967 to 1975, and Kitzhaber valued about Oregon was its commitment to a greater common good--a visionary belief that valued public ends and civic responsibility above personal self-indulgence and grasping for inordinate wealth.

Our present national Zeitgeist, with its overweening emphasis on privatization and the sanctity of private property as an immutable feature of the American landscape, stands in sharp contrast to that earlier progressive vision. Led by developers, real estate interests, extractive industries, and free-enterprise think tanks, property-rights conflicts have exploded across the United States during the last two decades. The State of Oregon, with its 2004 property-rights law, Measure 37, is at the center of this larger public debate, a kind of poster-child, with its progressive land-use laws and tradition of supporting open spaces in jeopardy. Because Oregon was once at the cutting edge of land-use and environmental legislation, Measure 37 appears to have energized the property rights movement across the nation, suggesting to its supporters that they can override regulatory laws everywhere. The more zealous property-rights arguments, however, are absent historical memory, at least if we are to believe the public pronouncements of some of its advocates. It is a huge departure from two centuries of case law to argue--as some have--that property rights are embedded in natural law, that they are part of the natural order of things and should not be subject to regulatory action.

Debates over property rights, takings initiatives, and the greater public good date from the very inception of the American republic. More than two hundred years of legal history clearly show that property rights have always been embedded in law and are not natural or God-given rights. An inquiry into property law in the United States reveals that differing legal interpretations have prevailed at different moments in American history. Legal scholar Eric Freyfogle argues that "to study the history of property law in America is to see reflections of major currents in the country's culture and economy." As such, property law has been organic, flexible, and dynamic, acknowledging that landowners have rights, but insisting that the public at large also has rights.

And that brings me to the critical issues engaged in this essay--land-use policy, property rights, and privatization issues and their relation to the larger community's welfare. Are there obligations to the greater common good in owning property? Should our political institutions preserve and protect public open spaces for the recreational and aesthetic enjoyment of all citizens? A closely related question concerns the viability of the free market as a mechanism for serving the public's interests. The tension between these issues--property rights, the free market, and the greater public good--has always bedeviled the American legal system. This was especially true following the Second World War when an exploding population and run-away development overran weak and ineffective zoning efforts across the United States. These issues boiled to the surface in the Pacific coastal states, the epicenter of the most explosive growth in the nation. Although the postwar context differed from earlier property-rights debates, the new disputes still resonated with time-worn and conflicted references to the free market, individual liberty, and the common good. These tensions were equally apparent in Oregon where unregulated growth underscored the persisting questions about the right to the exclusive use of property and the public's interest in a livable environment.

Oregon's population more than doubled between 1950 and 2000, increasing from 1.5 million to 3.4 million, with the biggest gains taking place in the green valley of the Willamette, home to approximately 70 percent of state's population. Those skyrocketing numbers increasingly posed problems with air and water quality, traffic congestion, urban sprawl, the rapid disappearance of agricultural and forest land, and the increasing privatization of public space. As a consequence, land-use issues, property rights, and questions about livability have been among the most contentious issues before the Oregon public in the last half-century.

By the mid-1960s, it was apparent that Oregon's existing legislation permitting counties to adopt zoning guidelines was an abysmal failure in protecting the public's interest. The state's helter-skelter development was out of control, with non-existent or overworked sewer systems, hit-and-miss zoning regulations, and increasingly convoluted traffic patterns. Opportunistic developers were seemingly ascendant everywhere. When the Lincoln County Chamber of Commerce declared Highway 101 along the northern coast the "twenty miracle miles," Republican Governor Mark Hatfield caustically referred to the chaotic string of beachfront towns as the "twenty miserable miles." Hatfield's successor, the more flamboyant Tom McCall, characterized newborn Lincoln City "a model of strip city grotesque."

As the future of Oregon's land-use and environmental practices would show, Tom McCall's election to Oregon's governorship in 1966 proved timely, linking place, a sense of vision and civic-minded purpose, and a singular cast of politicians at a remarkable moment in the state's history. McCall made clear in his inaugural address that his administration's overarching theme would be Oregon's quality of life, the livability of his beloved state. Although Willamette Valley agricultural interests spearheaded support for land-use regulation, by the late 1960s the public was growing increasingly concerned about uncontrolled growth, the despoliation of landscapes, and protecting access to waterways and ocean beaches.

The ambitious and charismatic McCall was quick to adopt attractive ideas proposed by others and make them his own. The Willamette Greenway concept--first proposed by Robert Straub when he ran against McCall in the 1966 governor's race--became part of McCall's vision for remaking the Willamette River corridor into a publicly owned greenbelt running the length of the valley. Although Straub's (and McCall's) original conception was never fully developed, the initiative did lead to the establishment of several public parks, especially where the river passed through major urban centers such as Portland, Salem, Albany, Corvallis, and Eugene. The Greenway concept, however, was only one component among larger strategies to enhance Oregon's livability and to protect open space during McCall's governorship.

More than any other series of events, the Willamette Valley's exploding population during the 1960s propelled efforts to curb further encroachments into highly productive farm and forest land. From Portland to Eugene, there was growing sentiment that the state legislature should take steps to prevent the state from becoming a replica of southern California--the favored object lesson for Oregon planners. "A siege mentality," according to one writer, a belief that Oregon's population growth would turn the Willamette Valley into another Lakewood Park, California, drove the movement toward more stringent land-use regulation. The Oregon legislature passed Senate Bill 10, the state's first move toward mandatory comprehensive land-use planning, and Governor McCall signed the measure into law in 1969. Although SB 10 was a significant step toward requiring local and county governments to adopt planning and zoning ordinances, Tom McCall's reelection in 1970 further advanced the move to strengthen statewide land-use planning.

From the time he entered the governor's office until his death in 1983, Tom McCall enjoyed great popularity with the press. Articulate, gifted at crafting the riveting metaphor--and with an oversized ego--the governor was more aggressive than any of his contemporaries in speaking out on important issues of the day. Midway through his first term, McCall told a group of Los Angeles industrialists that Oregon had been "wary of smokestacks and ... wanted industry only when that industry was willing to want what Oregon is." The governor's most notorious remark, however, broadcast in a CBS television interview on January 12, 1971, would stay with him for the rest of his life: "Come visit us again and again. This is a state of excitement. But for heaven's sake, don't come here to live." An interviewer remarked years later that McCall possessed an agile mind and enjoyed testing his ideas "in the verbal marketplace of spontaneous dialogue." While his famous line was tongue-in-cheek, McCall paid dearly for the comment, especially among the business community and within his own Republican Party.

Although his legislative programs moved the state in bold, new directions in pollution control, land-use planning, and protecting the public's access to special places, the governor always articulated a common-sense approach to economic growth. As McCall neared the end of his first term in office, the conservative Associated Oregon Industries named him Oregon's "Livability Governor," praising his "cooperation with business and industry, knowing that the health of one is the success of the other."

Despite the passage of Senate Bill 10, the rapid development of farm and forest land in the Willamette Valley continued, with few local governments in compliance with the new law. This disturbed the already alarmed governor, and with the tide beginning to ebb on his second term, McCall began using the bully pulpit to spread the message about Oregon's land-use problems. Hector Macpherson, the author of Senate Bill 100--the body of law that would eventually govern the state's land-use practices--later praised McCall for bringing the public's attention to the issue: "Tom was a master with words. ... He was not a nuts-and-bolts man. ... But this is the kind of thing we needed." According to Macpherson, McCall contributed mightily to building public support for the planning initiative.

The person of Republican Hector Macpherson, an important supporter of land-use regulation--and the governor's chief legislative ally--is a reminder that McCall did not stand alone in his tireless politicking for land-use legislation. Since the early 1960s, Macpherson, an Albany dairy farmer and former Linn County commissioner, had been concerned about protecting Oregon's agricultural land. In a talk at Oregon State University in 1967, he called for planning strategies to protect farmland, telling the audience, "Visualize the alternative: a valley where neighbor encroaches on neighbor, a land unproductive agriculturally, where hunger and want must surely follow. Let's bring order out of chaos." In preparation for the state legislature's 1973 session, Macpherson worked with McCall's staff, taking Senate Bill 100 through several revisions. The heart of Macpherson's legislation was a planning hierarchy involving local and state governments, with power distributed to each of fourteen regional districts.

With his lanky frame draped over the House podium, Tom McCall addressed the opening session of the 1973 legislature, appealing for action to curb the "unfettered despoiling of the land," the state's most precious finite resource. In one of his most famous speeches, the governor told lawmakers that only effective land-use controls would bring an end to runaway subdivisions, coastal blight, and sprawling suburbs in the Willamette Valley. These "grasping wastrels of the land," he told legislators, must be stopped from their relentless assault on Oregon's resource base and its open spaces. With Democrats in control of both the House and Senate, the Republican McCall relied on allies such as Portland Democrat and state senator, Ted Hallock, to push the land-use measure through the hearing and amendment process. When the Senate approved a slightly modified version of the land-use bill, Ted Hallock arranged with the House Democratic leadership to submit the legislation directly to the floor where it was approved. The new measure established the Land Conservation and Development Commission (LCDC) to oversee compliance with local and statewide land-use goals.

The new land-use law embellished Oregon's already progressive environmental reputation and put the state in the vanguard in terms of civic responsibility and in the effort to create a livable environment. Senate Bill 100 established a new state agency, the Department of Land Conservation and Development, to implement planning strategies originating with LCDC. The unique feature of the new legislation was its delegating of planning responsibility to the local level, where agencies were required to follow common statewide guidelines. The measure also engendered opposition from property-rights groups and lengthy debates over approaches to land-use planning that continue to the present day. Critics argued from the outset that land-use legislation would be used to "'take' or impair private property rights without compensation" and charged that environmental regulations were unconstitutional restrictions on the free market. As planning advocates pointed out, however, such arguments ignored the market's role as the primary contributor to the privatization of public space and the desecration of landscapes. The free-market approach also overlooks legal scholar Eric Freyfogle's voice of caution: "market mechanisms fail almost entirely" when the community's greater public good is at stake.

There is little question that Oregon's land-use program worsened tensions between rural and urban parts of the state. Three initiative challenges to the law--1976, 1978, and 1982--showed strong support for land-use planning in the urban corridor from Portland south to Eugene. Less populated ranching and timber-dependent counties generally opposed statewide planning. Of all the planning issues that came before LCDC, rural land-use policy has been the most contentious, the source of initiatives to overturn the system and court challenges objecting to specific land-use decisions. State and local interests have debated policies involving agricultural and forest lands and the public's interest in sensitive habitats such as wetlands. At the same time, visitors to the state frequently left positive, even glowing images of Oregon's environmental accomplishments. Peter James, a British planner who traveled the state in 1978, believed that Oregon could "lay some claim to being the most ecologically conscious area in the world." James praised the McCall administration and the state's innovative land-use planning system for restraining runaway growth and for protecting the public's interest in open spaces.

During its first decade of operation, the greatest challenge to Oregon's planning system occurred during the recession-wracked early 1980s when opponents succeeded in putting an initiative before the voters in the fall of 1982. Measure 6 asked the seemingly innocent question: "Shall the state's land-use authority and goals be advisory only?" It was obvious to all that if the initiative passed, it would deprive LCDC of its regulatory authority. Pollster Tim Hibbits's September opinion surveys showed solid backing for repealing Oregon's land-use laws, but the poll also hinted that the public would invest great trust to former Governor McCall's judgment.

Suffering from an advanced stage of prostate cancer, McCall took advantage of strategically timed speaking engagements (and his still notable rapport with the press) to speak in support of statewide planning, what he considered the keystone to Oregon's reputation for livability. In a discreetly arranged media event at the University Club of Portland on October 7, 1982, McCall delivered an impassioned speech calling upon Oregonians to defend the state's livability. In remarks that left few eyes dry, he concluded:

You all know I have terminal cancer--and I have a lot of it. But what you may not know is that stress induces its spread and induces its activity. Stress may even bring it on. Yet stress is the fuel of the activist. This activist loves Oregon more than he loves life. I know I can't have both very long. The trade-offs are all right with me. But if the legacy we helped give Oregon and which made it twinkle from afar--if it goes, then I guess I wouldn't want to live in Oregon anyhow.

The dying McCall's address reversed the polling trends on Measure 6 and placed the former governor in the national spotlight in the month before the election. McCall appeared on NBC Evening News and the Today show, and CBS reporter Terry Drinkwater delivered two commentaries on the former governor. On Election Day, voters easily turned back the effort to repeal the state's planning system, piling up huge majorities in the greater-Portland area and in Marion and Lane Counties.

Through all the court challenges, initiative attacks, and legislative maneuvering, Oregon's land-use experiment remained largely intact into the 1990s. The planning system enjoyed powerful supporters, none more influential than 1,000 Friends of Oregon, the watchdog organization formed in 1975 by McCall, Macpherson, and others. Financed through private gifts and donations, foundation grants, and membership dues, the organization lobbied the state legislature and initiated judicial review of LCDC planning directives. But the state's land-use system faced a problematic future during the 1990s, with many of its difficulties related to Oregon's booming population growth. Renewed property-rights activism, especially legal challenges by the newly formed Oregonians in Action, further complicated the state's ability to deal with the pressures of development. Attracted by quality of life, magnificent outdoor public playgrounds, and relatively modest living costs, Oregon's population increased by more than 17 percent between 1990 and 2000; with Washington and Idaho, Oregon ranked among the fastest-growing states in the nation.

Oregon's livability, therefore, created a Catch-22: overcrowding, pollution, and increasing traffic problems all placed strains on the attractions that drew industries and people to the state in the first place. Planning supporters worried about incremental changes and a slow erosion of the original planning principles. Speaking for the anti-planners, Bill Moshofsky of Oregonians in Action, charged that the system was "rigid," "inflexible," and "unreasonable." But the greatest threat to Oregon's planning system was a public unfamiliar with the struggles to draft the original comprehensive plans and the persistent efforts to undermine Senate Bill 100. Newcomers to the state--described in newspaper accounts as "white flight" refugees from California, retirees, affluent telecommuters, and professionals of various kinds--knew little about the generation of politicians who forged Oregon's progressive environmental laws, including its land-use system. Moreover, there was no longer anyone comparable to the charismatic Tom McCall to rally the public behind planning.

The most contentious land-use battle lines in the late 1990s centered on the issue of urban-growth boundaries, especially Portland's Metropolitan Service District. Despite critics who pointed to its hidden costs, Portland has served as a laboratory city for prudent urban growth. Planners point to striking comparisons with other cities. Between 1990 and 1996 the Kansas City metropolitan area extended its spatial reach 70 percent while its population increased only 5 percent. In contrast, metropolitan Portland's built landscape expanded 13 percent, the same percentage as its population growth. Beyond the city of Portland, there was still more evidence that planning protected open space. While neighboring Washington lost about 40,000 acres of timberland annually in the late 1990s, Oregon lost about 1,000 acres each year to development in its western valleys. Forester Jay McLoughlin, who is working to protect the timberlands adjacent to the small community of Glenwood, Washington, from development, observed, "Special places don't stay special by accident."

Beginning with the 1995 legislature and continuing for the next several sessions, Oregon lawmakers were increasingly active in introducing legislation to overturn the state's land-use planning. Oregonians in Action, devoted to less-restrictive property rights, has been active in opposing land-use regulations, with Moshofsky charging that LCDC's restrictions were stifling "the rights of land owners." The organization pushed a successful ballot measure in 2000 to amend the Oregon Constitution to require state and local governments to compensate landowners if land-use restrictions reduced the value of their property. Ballot Measure 7, the smoking gun in the fight to kill Senate Bill 100, was approved by nearly 53 percent of the voters. Familiar persons from the past, Audrey McCall, the widow of Tom McCall, and Hector Macpherson, joined others in petitioning the court, arguing that Measure 7 violated the "single question" requirement for constitutional amendments. In October 2002 the Oregon Supreme Court issued a unanimous finding that Measure 7 included more than one constitutional change.

But the Oregon Supreme Court's decision did not end the attacks on the state's efforts to protect its open spaces through planning. In November 2004, voters approved Ballot Measure 37, an initiative that required compensation to landowners when land-use restrictions devalued their property. Approved 60 percent to 40 percent--with only Benton County opposed--the measure threatens to unravel Oregon's grand experiment to protect its livability, its open spaces, its highly productive agricultural and forest lands, and its reputation as an environmental pacesetter. Challenged in Marion County Circuit Court (in which Hector Macpherson was again a plaintiff), Judge Mary Mertens James, in late 2005, declared Measure 37 unconstitutional, because it intruded on the plenary power of the legislature and because development itself could reduce the value of adjacent property. In early 2006, the state supreme court upheld the constitutionality of the measure, overturning James's decision.

As Oregon moves forward into the twenty-first century, it might be wise for citizens to revisit the common values implicit in the Catholic Bishops' 2001 statement on the Columbia Basin. With its subtitle, "Caring for Creation and the Common Good," the pastoral letter notes that allowing the unrestricted market to be the final arbiter in property-rights decisions violates the larger community's collective welfare and closes with a ringing declaration of the common good: "the right to own and use property is not ... an absolute individual right," but a "right [that] must be exercised responsibly for the benefit of ... the community as a whole." Lives centered in privacy, charter schools, gated communities, and huge houses were not part of the bishops' equation.

Published in the Spring/Summer 2006 issue of Oregon Humanities.

© 2006 Oregon Council for the Humanities