In a long-awaited decision, the California Supreme Court upheld an “inclusionary zoning” ordinance by the City of San Jose that provided for construction of low and moderate-income housing by requiring a developer of 20 or more units to set aside 15% of the units for the private purchase by those with low- or moderate-incomes. The California legislature had authorized, but did not require, any particular method to provide such housing.
Authors: Edward J. Sullivan and Carrie A. Richter
In the human situation, middle age is often characterized by avoidance of disharmony, comfort with one’s surroundings and circumstances, and a conservative view of the future. The same often may be said of public agencies and programs. State and federal environmental agencies do not possess the fire and sense of direction that marked their inception forty years ago. Public records laws are riddled with incremental exceptions. Legislators and other public officials are willing to sacrifice their firstborn (and their laws) for the prospect of jobs.
The current Oregon land use program is now forty years old. On May 29th, the signing of SB 100 will mark that anniversary. The fact that the program has survived is important. The programs of other states have not fared as well. A new administration in Florida effectively repealed that state’s role in land use planning two years ago. New Jersey’s program is tied up in knots. Washington’s program has done better; however, that program had fairly low expectations. Hawai'i and California build slowly on their existing programs, though not without controversy.
The Oregon program survived three attempts at repeal or evisceration in 1976, 1978, and 1982 and a host of more subtle efforts for legislative review of administrative rules (where they could be blocked or otherwise subject to the Salem sausage-making factory ). For a time, the electorate was under the spell of “just compensation for land use regulations” under Measure 37 in 2004, but when it became apparent that the result was billboards, shopping centers and subdivision on resource lands, the voters approved Measure 49 which severely limited claims already made and required future claims to prove that land use regulations resulted in loss of value – something often alleged but rarely, if ever, proven.
At this point, forty years on, the state’s land use program is not in danger of direct repeal, but that fact does not guarantee that the program is not in danger. With the passage of Measure 5, limitations on local property taxes and transfer of most school funding responsibilities to the state have resulted in less money being available for planning (or, for that matter, for state police, parks, or environmental protection), so that very little money is available to go to local governments for planning or providing public facilities and services to attract employment opportunities. Local governments have the same problem – while they don’t provide educational services, they must deal with the panoply of services for law enforcement, parks, housing, libraries – and planning – with a great deal less funds.
Funding isn’t the only problem though. The principal danger of having meaningful planning under state law is that every interest group pushes its pet project at the state legislature, which is not well known for its self-denial. So the interest of the moment becomes the flavor of the month in Salem, whether it’s vermiculture (worm-raising) on farmland, transmission towers over 200 feet in height, or casino siting standards. All of these have actually been the subject of legislation in Oregon.
But perhaps the most serious problem facing the Oregon planning program is the tendency both to take it for granted, while at the same time using it as the mechanism for special interests. The excitement and sense of purpose that marked the passage of SB 100 have given way to an instrumental approach to that program without regard to its origins in preservation of resource lands, compact urban areas and a participatory and integrated planning process. The analogy to middle age is not far-fetched. It is appropriate to have thoughtful discussions of that program so that those Oregonians not born or in the state in 1973 may consciously reaffirm or reframe that program.
In Campbell v. Clackamas County, __ Or.App. __ (December 2011, A139642), the court was asked to consider whether plaintiffs’ rights to develop a residential subdivision had vested under Measure 49. Plaintiffs acquired the 62-acre tract of land in 1969 at which time the property’s zoning allowed residences to be built on one-acre parcels. Subsequently, zoning restrictions limited the uses of the property to agriculture and forestry. Plaintiffs obtained Measure 37 waivers and sought a vested rights determination under Measure 49 to develop a 40-lot residential subdivision.
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