by Sam Lowry
A scholarly Frenchman, once asked about rap music, said he thought it would be the savior of creativity in language … or something like that.
It’s clear what he was saying: Get used to it. Adapt.
Oregonians of a certain stripe are having to do a whole lot of adapting right now as the entire state’s culture, the very spirit of the age, rounds the corner into the post-Measure-37 era. The property-rights initiative, passed by 61 percent of Oregonians in 2004, dealt a body-blow to the state’s 30-year-old land use planning program.
These fans of statewide planning grapple with grief, disorientation, and disgust.
And they hang their last hopes for a bright future on a new ten-member task force, charged with finding new direction now that Measure 37 has had its constitutionality recently affirmed by the state Supreme Court.
There are good reasons for hope – but it’s not that simple.
FIRST: A PRESCRIPTION AGAINST THE ANGST
“It’s the beginning of the end,” said one correspondent from Marion County. “I always told people how special Oregon was. Now it’s not.”
Ed Sullivan feels their pain; he is even taking on the role of lawyerly psychotherapist.
Sullivan, a pre-eminent Oregon land use attorney who argued the Portland-area Fasano case in 1973 (setting a nationally reverberating precedent that zoning ought to follow planning) has been a defender of the statewide program for 33 years.
In an article appearing next month in the journal Planning and Environmental Law, Sullivan urges Oregonians to get past their angst and move forward.
“Oregon’s land use program still is a national leader. Measure 37 is the antithesis of that program. Nevertheless, the two now coexist,” Sullivan writes. “It is unlikely that the Measure will be completely repealed, just as it is unlikely that the State’s planning program will be repealed.”
Sullivan may have had more time than others to get used to the future: he says he always doubted that the MacPherson case, which successfully challenged Measure 37 in circuit court before being repudiated by the Supreme Court, would succeed.
“While MacPhersonheld back the tide of [Measure 37] claims for about five months it was, in the end, unsuccessful and fostered the illusion of invincibility of the environmental and planning communities,” he writes.
“MacPherson marks the passing of an era, though perhaps it was time to move on to another planning paradigm in any event,” Sullivan concludes. “With the crisis presented by Measure 37 will evolve a more resourceful response, one that will likely be more accommodating to the various regions and populations of the State … Out of the clash of thesis and antithesis will come a synthesis that will reconcile these seeming opposites. The future of planning lies in this synthesis.”
Get used to it. Adapt. Enter the “Big Look” task force.
TEN OREGONIANS – HOW MANY OREGONS?
A week ago Friday, six men and four women sat together on a dais in Hearing Room 50 of the state capitol building. Some were meeting one another in person for the first time.
Ranged alphabetically, from orchardist Ken Bailey at left to Coos County commissioner Nikki Whitty at right, the group’s political similarities or dissimilarities were randomized.
Coincidence, then, that members of the brand new Oregon Task Force on Land Use Planning, ready to spend three years working toward that elusive synthesis in a 30-year review of the state’s planning programs – nicknamed the “Big Look” – chose Whitty and former state senator Mike Thorne, sitting side-by-side, as their vice-chair and chair, respectively.
The dissimilarities will emerge as the task force heads into work-plan making with its next meeting on March 20.
Dissimilarities are the whole point. The group was chosen from a large slate of possibles, jury-selection style, by three people: Governor Ted Kulongoski, Republican House Speaker Karen Minnis, and Democrat Senate President Peter Courtney.
Two central goals of selection were, first, to have all viewpoints represented, from proclivity for centralized planning to that for strong local autonomy and individual property rights, along with everything in between; and second, to include “none of the usual suspects,” as has frequently been stated – i.e. only those with a minimum of scars from the most heated recent land use battles.
Those, in other words, who will have open enough minds to hear hugely varying and uncomfortable notions from one another, and especially from Oregon citizens, and still reach some sort of pragmatic and forward-looking consensus on what to do.
It has got to be a rocky path. At this early stage, participants and observers are upbeat.
Hanley Jenkins is Union County’s planning director and a member of the ever- controversial, seven-memberLand Conservation and Development Commission (LCDC), the body that sets direction for statewide planning.
“The task force will be raising the level of discussion on 30-year-old issues, and in a way that the public has the opportunity to understand, and participate,” Jenkins said in an interview. “It’s an excellent mix of folks and I’m glad … it will be operating on its own agenda, separate from LCDC.”
Lane Shetterly, director of the Department of Land Conservation and Development (or DLCD – the LCDC’s administrative arm), was encouraged by the Governor’s input to last week’s inaugural Big Look meeting.
“I thought the best part of his remarks was his strong endorsement of the task force and his commitment to help it succeed. That was … well received by the members,” Shetterly wrote in an e-mail to this reporter.
There were bumps for the task force, however, even on the maiden voyage. When state economist Dae Beck tried (half-heartedly) to emphasize the value of agriculture to the state’s economy, representatives from property rights advocates Oregonians in Action (OIA), who believe agriculture has been over-emphasized, were audibly skeptical.
Indeed, many in the property rights community are skeptical of the Big Look itself.
“I voted against the Big Look,” Republican state senator and gubernatorial candidate Jason Atkinson told 400 attendees at OIA’s annual Land Use Forum on Saturday in Wilsonville. “Spend $400,000 of taxpayers’ money to study an issue we all know is stupid? We don’t need another study.”
Bill Moshofsky, however, OIA’s principal Big Look liaison, is more open-minded. The group’s composition is “fairly well balanced,” he told the Forum. “We’re taking a positive attitude.”
As for the three-year time frame, that was chosen by the legislature in passing Senate Bill 82 that created the task force last year.
“I think the projected time … is realistic,” said a senior DLCD staff member. “We have to rethink the whole thing. … Keeping it moving in the face of M37 will be the challenge.”
Therein lies the rub – the elephant in the corner. The task force’s biggest challenge may be to avoid being overtaken by events, or becoming irrelevant.
Because, while it is a potent group in both make-up and marching orders, it is not the only game going. During the task force’s three-year tenure, the land use conversation will move inevitably and inexorably forward in at least three other realms: the legislature, the ballot box, and the courts.
Kulongoski appeared to drop a small bombshell at the task force meeting when he said he and “planners from around the state” had been meeting for two months, out of the public eye, to strategize response to Measure 37. “Don’t focus on Measure 37,” he urged the task force’s members. “We will.”
“I wouldn’t read too much into that,” Shetterly later wrote. “I am not aware of any strategy to bring forward a proposal to amend or ‘fix’ Measure 37 at this time.”
Jenkins, one of the group of Kulongoski advisors, said that a priority – after providing clarity to the public about Measure 37 – is to “ask if this is the way we’ll continue to conduct business” – i.e. Measure 37 and the statewide program in dynamic tension, as Sullivan sketched them – “or if there is another way to look at the fairness issue … Someone needs to lead an effort, and I would commend the Governor for making that effort … Our only options are the ballot box and the legislature.”
OIA also has its eye on possible ways to further roll back land use laws, but agrees nothing legislative is likely to occur before the 2007 session. “There’s not much interest to try to take a run at the Measure,” OIA legal director Ross Day told Saturday’s Forum. “We’ll be safe and will have fought off the wolves.”
Even so, Moshofsky noted, “Measure 37 doesn’t cover everything that needs to be done.”
Meanwhile, planning advocates 1000 Friends of Oregon have filed several ballot measures for the fall election, designed to weaken Measure 37. Two of their titles, however, challenged by OIA, have been thrown out by the Supreme Court, leaving increasingly scant time for Friends to redraft them and obtain signatures.
Sullivan thinks that much of the tension between Measure-37 development and existing planning laws will be decided in the courts.
“MacPherson … signals the need for litigation seeking to uphold the state’s planning system” – that is, local suits against specific Measure 37 claims, preferable to the sort of “long, costly, and in this case [MacPherson] disastrous facial challenges to laws passed by the electorate.”
But Big Look, legislature, ballot and courts all, finally, will align at a single point. As Sullivan puts it, “Only by doing the hard work … will it be possible for change to occur in the only meaningful court judging public policy – the court of public opinion.”
Sam Lowry is a freelance writer and reporter, and a contributor to New West Columbia Gorge. A note of disclosure:The author is currently a student in a course taught by Ed Sullivan.