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March|April 2005
Insult to Injury By Reynolds Holding
Right On By Richard W. Garnett
Wrong, But Not Too Right By Kermit Roosevelt
The Mine Line By Geoffrey Gagnon
How the West Was Lost By Daniel Brook
Saving the Race By Daniel J. Sharfstein
A Crime With a Name By Nicholas Thompson

How the West Was Lost

How were the people of Portland, Oregon, once the country's fiercest anti-sprawl crusaders, convinced to give up the fight?

By Daniel Brook

THE DRIVE FROM THE DOWNTOWN CENTER OF MOST AMERICAN CITIES is remarkably similar. A cluster of high-rise offices surrounded by gentrified downtown neighborhoods eventually gives way to a ring of blighted buildings. When the blight recedes, it's replaced by well-to-do suburbs and chic malls, which in turn are replaced by middle-class housing subdivisions, car dealerships, and strip malls. When the strip malls and then the trailer parks peter out, you reach, at last, the farms.

One city where this is not the case is Portland, Ore. Driving down Kaiser Road in suburban Portland recently, I came to a sign marking the city's urban growth boundary. The sign read, "Entering Agricultural Zone—Drive Carefully." On one side of the sign is a densely packed suburban neighborhood. Beyond the sign is pristine arable land dotted with family farms. Crossing over the boundary is like going from the built-up suburbs of Boston to the pastoral Berkshire Mountains—but in 100 feet, not 100 miles.

Elsewhere in the developed world, strict borders between the suburbs and farmland are common; in fact, most developed countries have land use regulations guaranteeing such borders. In the United States, only Oregon does. The urban growth boundary is most pronounced around Portland, the state's largest city. While most of the Western boom towns like Phoenix and Las Vegas have followed a model of sprawling, auto-dependent development, Portland has opted for a dense, transit-oriented urbanism more common in the older cities of the Northeast.

Spurred by an influx of new residents in the 1960s and '70s, many of them fleeing California's rampant sprawl, Oregon in general and Portland in particular embarked on an experiment in development, an attempt to grow differently than its West Coast neighbors. Portland's regional growth was to be directed by the Metropolitan Service District, known as "Metro." Created by popular referendum in 1978, Metro was and is the only elected regional government in the United States. Its reform-minded representatives, together with like-minded city officials, instituted a range of rules and regulations designed to control growth.

In 1973, for example, the federal government began allowing cities to divert interstate highway money to mass-transit projects. Few metropolitan areas took advantage of the option, but Portland did. The city took money originally slated for a new freeway and put it toward the construction of a light-rail line connecting the suburbs of Portland to its downtown. Thanks in part to low fares and free travel within the downtown's "Fareless Square," Portland has about the same number of transit riders as Houston, a city four times as populous.

Portland's planners realized that relatively small efforts to plan growth could have profound effects. MAX, as the light-rail system is called, hasn't just reduced traffic—it's provided a lifeline for the city's downtown. Unlike most medium-size American cities, Portland has been able to retain a healthy shopping district with major department stores and late shopping hours. Since shoppers arrive as often by public transportation as by car, downtown buildings come right up to the sidewalk, rather than sitting back behind a barren stretch of parking lot. Portland's vibrant downtown has also thwarted the growth of so-called edge cities—conglomerations of malls and office parks at key suburban highway interchanges that draw white-collar workers away from the central business districts of many cities Portland's size.

The ingenuity of Portland's planners—and the cooperation of its denizens—has had a profound effect on how the city has grown up, and its successful fight against sprawl has earned the city an international reputation. As it has no analogue elsewhere in America, the growth boundary gets a lot of the attention. Smart-growth expert Gerritt Knaap of the University of Maryland told me, "Portland probably has the most famous growth boundary in the world besides the Great Wall of China." But appreciation for what Portland has accomplished extends beyond urban studies departments. Portland residents have continually elected defenders of smart growth to the Metro Council. Polls show that when asked whether they support the state's land use planning system, a solid majority of Oregon voters say "yea."

Yet in November, Oregon voters—who voted 51 percent to 48 percent in favor of John Kerry—voted by a 60-40 split in favor of Ballot Measure 37. Portland's residents favored the measure by a slight margin. The referendum will require local governments, including Metro, to compensate landowners when zoning changes affect their property values. And the law is retroactive: If a property owner feels that any zoning change made during his tenure as owner has devalued his property, he can file a claim for compensation.

Oregon's entire smart growth project, built on three decades of zoning changes, is in jeopardy. The new law doesn't specify where the funds to pay for the compensation it promises will come from. Forced to pay for its experiments past and future, and with no obvious revenue source to tap into, Portland's regional government may be forced to undo many of the zoning restrictions currently in place and release its grip on Portland's growth in the future. That's a troubling prospect for smart growth advocates. If smart growth isn't safe in Oregon—if even Portland's residents can't be relied on to protect it—is the fight against sprawl lost?

OREGON'S LAND USE REGULATIONS mandate that the state's urban growth boundaries contain enough land for the next 20 years of regional growth. In the Portland area, Metro re-evaluates the growth boundary every five years. Local planners make recommendations, after which public hearings are held. The new growth boundary must be approved by the seven-member Metro Council and then by state planners.

A 20-year supply of land in Phoenix is different from a 20-year supply of land in the New York metropolitan area. Metro's goal is to increase population density in the Portland region and prevent the city from eating up the surrounding farmland. Outside Oregon, unplanned American metropolitan areas just expand and expand—even when they are losing population, as is currently the case in Cleveland and Pittsburgh. In Portland, "we want to keep it tight so we don't sprawl out onto land we don't need," Metro planning director Andy Cotugno told me recently. "Our total metropolitan footprint is about half of what it would be in another metropolitan area of similar population."

Cotugno admits that expanding the growth boundary is as much an art as it is a science. In Portland's most recent growth boundary expansion, Metro planners, forecasting continued population growth, brought 18,000 new acres inside the boundary, including the farms just beyond the current boundary on Kaiser Road, 12 miles from the heart of the city. Seeing little demand for additional retail or office space, Metro zoned 4,000 acres for industrial use and the rest for residential.

Included in these 18,000 acres are the 73 acres that belong to Sharon Hosford. Sharon and her husband live in a modern farmhouse just past the "Agricultural Zone" road sign on Kaiser Road. In the living room, an outsize picture window offers a panoramic view of hills to the north. The day I visited, steam and smoke from a restless Mount St. Helens floated above the horizon. Near the house sits an old barn surrounded by fields planted with rye. Beyond the fields is a forest where riding trails lead to a creek and a pond.

Hosford showed me around her farm in a sweatshirt that read "Horses make your heart happy." Having moved to the farm with her parents when she was 6, Hosford, now 61, seemed to know her property by heart, effortlessly taking us down narrow, twisting paths. As we walked among dense evergreens, Hosford noted that the previous owners had logged the entire property. All of the surrounding trees, she said proudly, had been planted by her family.

Yet Hosford's pride in her stewardship of her land belies which side of the urban planning debate she ended up on. Though her farm lies within the latest growth boundary expansion, Hosford was informed by Metro last summer that, unlike her neighbors' land, hers would not be rezoned as suburban. In addition to monitoring Portland's urban density, Metro's goals include protecting the area's environment and wildlife. Metro announced that, pending the appropriate hearings, it intended to preserve the Hosford land, with its nearly 20,000 trees, as wildlife habitat. While Hosford's neighbors could look forward to large windfalls as they sold off their land to suburban housing developers—the going rate is about $400,000 an acre—Sharon Hosford couldn't sell hers to a developer and, before Election Day at least, she couldn't get compensation from Metro.

Her avowed respect for the land notwithstanding, when she learned that her farm was slated for preservation, Hosford undertook a destructive act of civil disobedience: She began clear-cutting her land. My tour of the farm culminated when Hosford led us to the top of a hill, where we came upon a clearing filled with stumps and felled pine trees—trees Hosford had cut down. The idea was to pre-empt Metro's protection of her land by rendering the land not worth protecting. "We love to see the deer and we love to see the bobcat with her kittens bobbing across the field just like everybody else," she told me. "But it's still our property that we pay property taxes on and we don't feel like giving it to Metro for free."

DRAWING THE LINES IN PORTLAND'S LINE-DRAWING DEBATE can be tricky. Back in 1973, a farmer was the driving force behind Oregon's land use planning law—Republican state senator Hector McPherson, a dairy farmer. The law also received strong support from the conservationist Republican governor Tom McCall. In a speech to the state legislature, McCall took the arcane issue of land use planning and put it in nearly prophetic terms. "Sagebrush subdivision, coastal condomania, and the ravenous rampage of suburbia. . . . all threaten to mock Oregon's status as the environmental model for the nation," McCall warned. "We are in dire need of a state land use policy, new subdivision laws, and new standards for planning and zoning by cities and counties. The interests of Oregon for today and in the future must be protected from the grasping wastrels of the land."

The bill sparked a contentious debate in the statehouse. One opposition group called the bill "the biggest land grab since our great-grandparents took this land away from the Indians 150 years ago." Another opponent, also a farmer, testified in Senate committee hearings that the bill would create "a police state bureaucracy," and called the proposed legislation "a solution in the Soviet pattern, not in the American tradition of free men."

To pass the bill, McPherson teamed up with State Senator Ted Hallock of Portland, a Democratic legislator with a background in public relations. With Hallock as front man, backers of the bill convinced voters that land use planning was the next logical step in Oregon's landmark environmental protection laws of the early 1970s—a struggle to "Keep Oregon Oregon," as a popular bumper sticker of the era put it. With the bill's passage in danger, a compromise to allow more public input in the planning process won over key supporters. The bill passed 18-10 in the Senate and 40-20 in the House.

The afternoon I arrived at Hector McPherson's dairy farm outside the small city of Corvallis, Ore., storm clouds were lifting off the mountains that surround the lush green valley of sheep and cow pastures. When I rang the doorbell, I startled the 86-year-old McPherson, who had dozed off while reading the newspaper on his couch. Dressed in a plaid shirt and jeans and sitting beside piles of recent issues of Harper's and The Atlantic Monthly, McPherson lived up to an old description of him as a "somewhat cerebral dairy farmer."

McPherson told me he became interested in fighting sprawl soon after being elected to the state senate in 1970. "I saw this development coming out from Corvallis down the Peoria Road. One of the last things that came in was the mobile home park you drove by. That was just before the bill passed. It wouldn't have been allowed afterwards." What bothered McPherson was not a mobile home park per se, but the fact that having a residential development near his farm could threaten his livelihood. "There are all sorts of things that dairy farmers live with that city folks don't like, namely the odor from the cattle," McPherson explained.

Though he deemed himself too old to campaign against Measure 37, McPherson said he was deeply troubled by the outcome. The law provides that when property owners make a valid claim, the state can either reimburse landowners or undo the zoning change—the latter being a much more likely option, in McPherson's opinion. "Where is the money going to come from?" he asked. "That's the real problem. I'd be happy to compensate somebody if there was a pot of money out there you could use to do it." McPherson pointed out that over the last three decades, the state legislature repeatedly looked into compensating people whose land values were lowered by land use regulations. No plan was ever agreed upon because no one could ever find the funds. According to the financial impact statement issued before the referendum by the Oregon secretary of state and state treasurer, the administrative cost alone of Measure 37—"before paying a single claim"— is estimated at $344 million a year.

DESPITE 30 YEARS OF THE STRICTEST LAND USE PLANNING in the nation, smart growth advocates acknowledge that there are parts of Portland with sprawl as pure as anywhere in America. I asked Metro Council President David Bragdon where I could go to take in some local sprawl. "In terms of just ugly sprawl," he said, "go out to Highway 217, which is in a place called Tigard."

Tigard was already on my itinerary. It is from a Tigard headquarters that Oregonians in Action ran its campaign in favor of Measure 37. The OIA office is located on the second floor of a small suburban office building set in a parking lot just off Highway 217. As Bragdon advised, 217 is crowded with sprawl's usual mix of fast-food franchises and shopping malls. To Ross Day, OIA's bespectacled director of legal affairs, however, even Tigard is too much under the thumb of the Metro planners. Day pointed to a smattering of new high-density developments that have recently sprouted up just down the road from his office park. "If you walk—" he began, and then paused to correct himself. "If you drive around here, drive the streets of Tigard, you'll see the old homes that have been here for 20 years and then all of a sudden four row houses right next to each other. And people look at you and they say, 'Why did that happen?' Well, the social engineers have decided this is the way they want our community to grow up."

OIA is the largest property rights group in the country. It successfully litigated Dolan v. City of Tigard, the most important regulatory takings case of recent decades, up to the United States Supreme Court. In that case, city planners refused to give Florance Dolan, the proprietor of a local plumbing supply store, a zoning permit to enlarge her store and parking lot unless she gave the city an easement for a bike path. The traffic-reducing bike path was required to comply with Oregon's stringent land use guidelines. State courts backed the government, but the Supreme Court sided with Dolan and her OIA lawyers. In a 5-4 decision in 1994, the court decreed that the Takings Clause of the Fifth Amendment—"Nor shall private property be taken for public use, without just compensation"—applied to Dolan's case.

Dolan was a run-of-the-mill Rehnquist Court decision—sympathetic toward individual businesspeople and property owners and skeptical of government power. But what OIA recognized is that the Rehnquist Court's sympathies on this issue were also those of an increasingly large swath of the American public. Sensing this shift, OIA hasn't just waged its fight against planning in the courtroom. It has taken the fight to the public.

HOW COULD OIA CONVINCE A PUBLIC that in the past has famously looked out for the public good to adopt such a conservative property rights law? (The only states with a law on the books similar to Measure 37 are Florida, Mississippi, Louisiana, and Texas—none of them sharing Oregon's progressive history, to put it mildly.) The results of the vote raise a different question. If property rights advocates could win a 60-40 victory in Oregon—in a campaign in which they were outspent more than 2-to-1 by the opposition—where can they lose?

Before the November vote, the referendum was often described as a showdown between urban blue-staters and rural red-staters. An article in The Oregonian, the state's leading newspaper, portrayed the measure as pitting "people frustrated by run-ins with the government" against "people who tie Oregon's identity to its environment." Urban studies professor Carl Abbott of Portland State University calls the latter group "quality-of-life liberals," many of whom came to Portland from the paradise lost of California in the 1960s and '70s. He recently wrote, "The majority of involved citizens in both Portland and the suburbs share a basic vision of a metropolis that above all else is 'not Los Angeles.' " The OIA's campaign targeted these quality-of-life liberals—not for conversion but for persecution. As OIA's Ross Day put it, "The folks that we have a problem with are the people in Portland's west hills who want to drive out to the coast in their Saab or their Volvo and don't want to have their visual sensibilities affected. They like to see the pretty rolling hills and they don't want to have to see somebody's house on the side of the hill. They've got a house on the side of the hill, but they don't want to see it when they're driving out to their beach house. Those are the folks that we really are having a problem with."

In one pro-37 campaign pamphlet stood a working-class family: a man in baseball cap and jeans and wife in a T-shirt, flanked by four blond children and the family dog. A quotation above their family portrait read, "Our house was destroyed by fire on January 1, 2001. When we applied to rebuild it, an environmental group sued us, because they wanted us to plant trees in front of our property so that they couldn't see our home when they went on their nature walks. It took us over three years and thousands of dollars in litigation fees just to get our rights back."

It's not clear from that account what role the state's land use planning regulations played in the lawsuit. But the resentment of privileged liberals that permeated the pro-37 campaign rhetoric is obvious. The ad tars environmentalists for putting their lifestyle—the right to have a nice nature walk—above the basic needs of their fellow Oregonians.

The pro-37 campaign accused the Metro planners of a similar crime: imposing their will on individual homeowners and businesspeople. "They don't plan where you live, they're now planning how you live," Day told me during the campaign. "They want to get people out of their cars, on their bikes, on mass transit, crowd as many people as they can into as little space as they possibly can." Randal O'Toole, who heads the American Dream Coalition, an Oregon-based group that agrees with Day's, told me that smart growth advocates aren't really interested in free choice. "They talk about giving people more choices, but the plans they make give people less choices. Smart growth people really only accept two lifestyles: an urban lifestyle and a rural lifestyle. They don't accept that anybody should want to live in a neighborhood of plain, single-family homes. For them, it's not, 'What do people want?' but 'What should people want?' "

Measure 37's backers cast the debate as one about fairness and cost, not a referendum on land use planning. According to Bob Stacey, executive director of 1,000 Friends of Oregon, the state's leading smart growth organization, polls and focus groups indicated that the backers succeeded in this framing. "Voters thought it was implausible that this ballot measure had any connection to land use planning and farmland protection."

Yet rather than trying to draw the connection by showing voters what Oregon might look like without smart growth, the measure's opponents let its backers define the terms of debate. The tagline of one anti-37 ad I saw wasn't much of a rallying cry: "No on 37: Arbitrary, Unfair, Costly."

In the 1970s, Governor McCall won over voters with his exhortation to Oregonians to protect their land from rapacious real estate developers (his "grasping wastrels of the land") and to do so by giving the government the power to control growth. State Senator Hector McPherson sold the growth boundary as a way to preserve individual rights, in particular the rights of farmers to do their work without interference from suburbanites. Ironically, Measure 37 backers at OIA also won over voters in 2004 with a plea to protect individual rights—but this time, those of farmers who want to sell, not to be left alone.

OIA'S CAMPAIGN DIDN'T SUCCEED BECAUSE OF AN APPEAL to self-interest alone, however. It was aided by complacency. OIA polling found that 54 percent of Oregonians who had had a run-in with the state's planning system rated the experience poor or worse. Yet the same poll estimated that less than half of the state's residents had ever had a run-in with planners at all, whether positive or negative. OIA's campaign relied on the outrage and self-interest of those who felt they'd been burned by the system, but it also relied on those who had used a superior transit system, breathed cleaner air, or picnicked in a park without crediting the system that protected those benefits of living in Oregon.

The real genius of OIA's campaign was in its having convinced voters who might otherwise have been disinclined to dismantle their state's planning system that a vote for 37 was a vote to safeguard rights, not curtail them. OIA adopted the language of individual rights, rhetoric usually reserved to defend widely accepted civil liberties like free speech and the right to vote—not the right to sell property. Ross Day told me, "Civil rights activists like to pick and choose which civil rights they like and which ones they don't." He sees OIA as a civil rights organization, even if the civil rights establishment doesn't.

Measure 37 went into effect on December 3, one month after it was passed. According to the new law, the government has 180 days to act on claims, giving the legislature until June 3 to find a source of funds. If the legislature can't come up with the money, zoning changes will be waived and development will proceed largely free of the control of state land use planners.

The hope, if one can call it that, for supporters of land use planning in Oregon is that the results of the referendum, which its opponents failed to describe before the election, will become clear afterward, as former farmland is bulldozed and begins to bear a crop of subdivisions, Best Buys, and trailer parks. With a concrete example of what Oregon is starting to look like under the new law, progressives might be able to ride a backlash to the statehouse and convince the legislature to overturn the law.

It was the fear of a paradise paved that mobilized Oregonians to undertake their experiment in smart growth in the first place. As Metro Council President Bragdon told me, in the 1970s "people saw a reason to act. Population was growing, the air was getting dirtier, downtown Portland was dying, there was disinvestment. And all of that sort of activated people in a way they ordinarily would not be activated around something as arcane and abstract as land use planning. At least for that brief period, people saw the relevance of it and the importance of it."

In 2004, considerably more Oregonians decided that it's important to be able to do with their property as they please. As a result, Sharon Hosford and others will be able to seek the fortunes that Metro would have denied them. Hosford told me that since Election Day, real estate developers have literally come knocking on her door, offering to buy her farm, and that she intends to sell. If Measure 37 isn't repealed or amended, Oregonians driving down Kaiser Road past subdivisions that used to be Sharon Hosford's farm will have to decide whether they've given up too much to protect her property rights—and whether they regret not keeping Oregon Oregon.

Daniel Brook is a contributing editor of Legal Affairs. He last wrote for the magazine about Magna Carta.

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