Oregon land use law turns 40


0913 LandFutures 01Forty years after Senate Bill 100 set Oregon’s pioneering land-use laws in motion, business interests call for a balanced approach to conservation and urban growth.

Share this article!

BY BRIAN LIBBY

0913 LandFutures 01From the outdoor patio at Cooper Mountain Vineyards on the outskirts of Beaverton, one can look west at grapevines and, in the distance beyond, miles of fertile Willamette Valley farmland. But a few feet in the other direction is the edge of a housing subdivision. And with this property officially designated as future urban land within the growth boundary of Beaverton, the winery will eventually have to give up its namesake property and plant vineyards elsewhere.

“We just have to accept the path of progress,” says Cooper Mountain owner Robert Gross, who not only doubles as a physician but also served on Washington County’s planning commission in the early 1980s. “Having urban or rural reserves makes sense. If you’re an owner in this group, particularly if you’re in urban reserves, you’re kind of locked in to somebody else’s plans. And yet I think there are good reasons for that, so the land doesn’t get subdivided in a way that would not meet the overall goals of land-use planning.” Cooper Mountain already owns two parcels far outside Portland’s urban-growth boundary and is looking for more.

The winery’s move comes amid this year’s 40th anniversary of Senate Bill 100, the 1973 legislation spearheaded by legendary governor Tom McCall that established Oregon’s first statewide land-use laws. Along the way, the system has continued to evolve, be it through ballot measures, the legislature or the courts.

Today supporters say Oregon’s unique state-controlled land-use system (most other states have local control) has prevented sprawl while preserving farmland, which in turn has allowed both rural industries, such as wineries, and urban businesses, from high tech to athletic apparel to restaurants, to thrive and enjoy international renown.

Yet critics abound too. Growth boundaries have been routinely criticized over the years by property-rights advocates, be it residents of Damascus looking to unincorporate their town rather than acquiesce to urban-growth boundary annexation, or a range of industry leaders who believe the recovery has been stymied by an overprescriptive and top-heavy land-use system with few ties between planning and economic development. In the middle are businesses, which have their own multifaceted perspectives.

There isn’t universal agreement from Oregon entrepreneurs and corporations, but there is a desire for balance and middle-ground solutions that allow as many as possible to thrive and prosper — without costly, polarized or protracted political battles. And as we map out the next generation of growth-boundary policy, the future of Oregon’s business and economic development is at stake. With the population rising, there is more pressure than ever on urban lands to be expanded for development. After years of recession, business leaders are eager to create jobs and increase profits. How best to manage conservation and commerce is a more delicate equation than ever.


0913 LandFutures 02
Oregon’s land-use laws have limited sprawling housing developments while preserving farmland.

Whether one supports or is skeptical of Oregon’s land-use system, it remains unique. “It’s truly radical in the national picture,” says David Oates, author of the 2006 book City Limits: Walking Portland’s Boundary. The best evidence, of course, is how Portland differs substantially from virtually any other large American city west of the Mississippi. It’s what enticed Oates to move here two decades ago from Los Angeles. “The contrast” between dense, pedestrian-friendly Portland and the sprawling car culture of Southern California, he says, “is in front of your eyes every single day.”

Oates cites a wave of urban-infill projects that have turned vacant lots and destitute inner-city neighborhoods into a metropolis the New York Times and countless other media — not to mention thousands of educated creative-class workers for a range of industries — can’t get enough of.

Rural land benefits just as much, supporters argue. “When you look at the health and vitality of cities in Oregon and its farmland, from Ashland to Portland, Senate Bill 100 had a lot to do with that,” says Ryan Deckert, president of the Oregon Business Association. “A well-planned city you can enjoy and appreciate makes a huge difference to a corporation. We see both sides of it, be it the health of a vineyard or a burgeoning software industry.”

Deckert cites a recent private dinner in Portland with the American head of a major foreign automaker who was scouting the state for future development. “They like Oregon because we seem to have thought ahead.”

The thinking ahead got its start in the 1960s, when Gov. McCall led a growing bipartisan and urban-rural consensus against what he called “sagebrush subdivisions” and “coastal condo-mania.” Senate Bill 100 was passed on May 29, 1973, after a long public-outreach process, culminating in the creation of the state Land Conservation and Development Commission to oversee creation of local urban-growth boundaries. And once ballot measures calling for repeal of Senate Bill 100 were defeated in 1976 and 1978, every Oregon municipality was required to have comprehensive plans and growth boundaries in place by 1986.

The desire for middle ground struck again in 2000, when disgruntled private-property owners, many of whom had seen their land devalued and its development restricted, struck back again. Voters approved Ballot Measure 7, calling for landowners to be compensated when government regulation caused devaluation. The Oregon Supreme Court overturned the measure on a constitutional technicality, but in 2004, voters approved Ballot Measure 37, which not only called for property owners to receive compensation when a land-use regulation was enacted after their purchase, but also allowed local governments to instead roll back zoning regulations.

Then came a compromise that seems to have held. As local governments became overwhelmed with Measure 37 claims, the legislature referred Measure 49 to voters with successful passage in 2007. Measure 49 terminated Measure 37 claims but provided an allowance of up to three additional housing units per claim.

“I think 49 has settled [those problems],” says David Hunnicutt, president of Oregonians In Action, the property-rights group that spearheaded Measure 37. The larger problem, he says, is a one-size-fits-all approach that favors urban needs over rural ones. “The idea of Senate Bill 100 was we were going to create a state system and a state agency to oversee local planning, but the bulk of the planning would be done at the local level, so counties would have flexibility,” he says. “But that really hasn’t come to pass. In a state as big and diverse as Oregon, planning and zoning needs really should be driven at the local level. You have to understand, despite 40 years of centralized planning, we’re still the only state that’s doing it this way.”

Hunnicutt cites Oregon’s northern neighbor, Washington, where local jurisdictions have a greater say in their own planning, and the smallest rural towns can opt out altogether. “Out of the 39 counties, 10 aren’t subject to Washington’s statewide land-use laws, basically because there isn’t any growth to manage,” Hunnicutt explains. “We could take a page from that and allow some of our struggling, rural, nongrowing counties the opportunity to exercise some creativity, and try to kick-start their economy without the weight of 19 state land-use planning goals weighing over their heads.”


0913 LandFutures 03
New legislation in Oregon allows for expanded use of agritourism and other commercial activities in vineyards and other agriculturally zoned areas.

If the property-rights movement has experienced ups and downs, so too has the housing industry, which is perhaps most affected by growth boundaries. Oregon’s population was just 2.4 million in 1973 when Senate Bill 100 passed but reached 3.9 million in 2012. As planners have sought to limit growth-boundary expansions and promote high-density housing, “we’ve done a really good job of saying what we don’t want: sprawl,” says Jon Chandler of the Oregon Home Builders Association. “But we’ve done a bad job of saying what we do want.”

Chandler believes there is a disconnect between “what we want and how it is on the ground. It’s one thing to target an area around transit nodes for high-density condos and apartments,” he says, but particularly outside Portland the market isn’t always ready for it. “It doesn’t matter what the planning calls for if we can’t finance, build and sell it. The real-estate market has regulations from lenders, expectations from customers; it is driven by profit. Planners often get ahead of the market. If I build something that won’t sell, I’m not going to build it twice.”

Chandler is not out to eradicate growth boundaries altogether and turn Oregon’s urban areas into sprawling cities like Houston or Atlanta. Rather, he believes the sprawl threat has been overstated. “The majority of the state’s population is on 2% or 3% of the state’s land mass,” he says. “In terms of farmland preservation, you could double or triple the size of every city and you wouldn’t strongly impact it.”

Successful land-use policy, however, is not just a matter of either-or — of preserved farmlands or expanded growth boundaries. To the agriculture industry, which includes wineries, there is increasing interest in allowing farm and vineyard lands to engage in direct sales. “There’s a lot of interest,” says the Oregon Farm Bureau’s Katie Fast.

As vineyards and a range of other crops have made Oregon a world-renowned food-and-drink destination, lawmakers in Salem have continued to introduce legislation designed to expand the kinds of events allowed. Passed in 2011, Senate Bill 960, for example, expanded allowance for agri-tourism and other commercial activities in agriculturally zoned areas. House Bill 280, passed in 2011, as well as this year’s Senate Bill 841, also expanded wineries’ ability to operate tasting rooms and host events.

“I think that’s going to be the discussion: making sure we protect the agriculture land base and infrastructure that’s needed, but that there’s a reasonable flexibility to allow folks to bring people out in agriculture tourism in a way that doesn’t imperil other farms,” Fast explains. “The difficulty is in finding that balance.”

In 1973 Oregon business was dominated by forestry and agriculture. Today the economy is more diverse, but land-use critics cite the difficulty of finding proper land for businesses like heavy industry. Business groups have argued for years that the state needs more readily available large industrial lots for big employers. But politics and competing desires for the land often make that difficult.

Over the past decade, for example, owners of the Langdon Farms Golf Club just south of Wilsonville, Chris and Tom Maletis, have tried to turn their acreage adjacent to the course into industrial land, for which there is a statewide shortage. Their property has the easy transit access industry prefers, not only the adjacent I-5 but an expanding Aurora Airport, and co-owner Chris Maletis recalls receiving letters of support from entities like the Port of Portland. But with opposition from residents and environmentalists to extending Wilsonville south of the Willamette River, the property was placed by Clackamas County into rural instead of urban reserves, part of the system created by Senate Bill 1011 in 2011 to increase long-range planning to a 50-year window.

“Our property is the poster child of what’s wrong with the system,” Maletis says. “They made a 50-year decision without even looking at the [industrial land] shortage and what lands are the most viable to take care of the needs of the region.”

In other parts of the state, though, the legislature has crafted specific legislation to streamline industrial land development. In the 2013 legislature, Senate Bill 845 would have cleared the path for a proposed 330-acre plot in North Hillsboro. That measure never advanced out of committee, but last year Senate Bill 1544 passed, enabling Deschutes, Jefferson and Crook counties to partner on a large-lot industrial site in Redmond. Proponents worked with 1000 Friends of Oregon, which threatened legal action, on a compromise allowing passage.

“I think the profession should be looking at ways to make Oregon’s planning more dynamic, emphasizing regional solutions instead of a one-size-fits-all land-use planning system,” says Peter Gutowsky, principal planner for Deschutes County. “These narrowly crafted projects provide examples of how the Oregon land-use program can be malleable.”

Last year the governor also signed Executive Order 12-07 allowing Jackson, Josephine and Douglas counties to create a pilot program permitting these jurisdictions to create regional variation on what constitutes farm and forest lands. As the viability of different lands change, these counties will have greater flexibility in changing zoning.


As state land-use law celebrates its 40th birthday, the closest thing to a consensus in Oregon’s business community — which encompasses enough industries to represent a spectrum of supporters and detractors — may be that there’s a better system in place today precisely because of the challenges and changes that have occurred, be it at the ballot box, in the legislature or in the marketplace. The journey of Oregon’s land-use system is the search for a happy medium: between planning goals and market realities, between state-dictated outcomes and local jurisdictions’ desires, between smart transit-oriented growth in the Willamette Valley and reversing the decline of small rural enclaves. If land-use law forces unwanted change upon those living along growth boundaries, it also creates options.

Back at Cooper Mountain Vineyards, Robert Gross may lament that within a
decade the company’s namesake vineyard will likely give way to a subdivision. But the winery has already purchased new land on the north edge of nearby Chehalem Mountain, one that might yield better pinots than before. “It’s a terrific site,” he says, “and we’re already looking for more.”

0913 LandFutures Timeline