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The New Media Department of The Post and Courier

TUESDAY, JULY 05, 2005 12:00 AM

Oregon law inspires rights fight

Landowners' group wants Legislature to act

BY DAVID SLADE
Of The Post and Courier Staff

Putting into play a sweeping new property rights law, Larry and Karen Waide have issued an ultimatum to Oregon, their home state:

Either pay them $15 million or allow them to develop their 173-acre property into 1.5-acre lots.

South Carolina and its local governments could face similar demands from landowners if a property rights group founded in the Lowcountry gets its way.

The South Carolina Landowners Association has set its sights on changing the state constitution to require that governments either forgo new limits on development or pay property owners for any lost value caused by regulation.

"For too long, the brunt of the cost has been on the property owner," said Mark Nix, executive director of the group, which was formed five years ago to oppose Charleston County land-use regulations.

Under the association's "just compensation" concept, if a developer were to purchase a tract of land, and the potential to develop that land were later limited by a zoning change, the developer could demand payment or a waiver of the regulation.

Opponents of such a policy say it's a thinly disguised attempt to block virtually all land-use planning.

"It is a crude sledgehammer," said Dana Beach, director of the South Carolina Coastal Conservation League.

"I think, ultimately, the Legislature will be wise enough to reject it."

Howard Duvall, executive director of the Municipal Association of South Carolina, said similar bills have been introduced in the Legislature just about every year and have been defeated.

"Who doesn't want the government off their back?" he said. "But it (adopting a law similar to Oregon's) would be open season -- anything goes in your community."

In Oregon, the state government is waiving land-use regulations on a case-by-case basis, rather than paying landowners with valid claims, under the new law, which resulted from a referendum on what is known as Measure 37.

The measure was retroactive, giving Oregonians the possibility of avoiding decades of zoning and land-use regulations. More than 500 claims were filed with the state during the first six months of this year.

"What it has done is establish property-specific land-use time zones," said Lane Shetterly, director of Oregon's Department of Land Conservation and Development. "Somebody who bought their property in 1947 and files a claim owns the land in that 1947 time zone."

Nix said a South Carolina version of Measure 37 probably wouldn't be retroactive. Instead, it would apply to any land-use requirements that could come after such a law were approved.

He said there would be exemptions for health and safety regulations, and adult businesses would be exempt from the compensation provisions.

"What we would hope for is to have voters consider it in 2006," he said. "There are five or six states working toward this."

While such measures have failed before, property rights groups have been energized by the success of the Oregon ballot measure, which passed with 61 percent of the vote, even though supporters were outspent by opponents.

The campaign supporting Measure 37 was primarily financed by timber industry interests. It was promoted as a way to keep big government from trampling the rights of small landowners who had been prevented from building homes for their children.

Oregon has long been regarded as a national leader in land-use planning and regulation, so the passage of Measure 37 surprised advocates of smart-growth policies, who generally believe voters did not understand the impact of the referendum.

"For the state, it does throw into doubt the ability of local communities to plan for their future and how they are going to grow," said Dan Emerine, a spokesman for the Smart Growth Network, a national consortium coordinated by the U.S. Environmental Protection Agency.

"They (the voters) may not have realized this would be the result," said Emerine. "People in the smart- growth community are talking to people in Oregon to see what happened there."

Property rights advocates believe that the voters in Oregon knew exactly what they were doing and believe that voters in other state will follow suit.

"In Oregon, after decades of smart growth, they decided it just doesn't work for them," said Nix.

In fast-growing Charleston, Berkeley and Dorchester counties, land-use planning and regulation have been a hot issue. Charleston County's urban growth boundary, Dorchester County's proposed down-zoning of rural land along Highway 61 and Charleston's recent rezoning of industrial land on the peninsula are among regulations that could be subject to a challenge under an Oregon-like law.

"The community would be at financial peril" if such a law were approved, said Charleston Mayor Joe Riley, who has won national awards for city planning. "I think it's anti-free enterprise to suggest the government should ensure people's investments."

Philip Ford, executive vice president of the Charleston Trident Homebuilders Association, said homebuilding has kept the economy afloat in recent years, and restrictive land-use policies mean fewer construction jobs.

"When you restrict Poplar Grove and Watson Hill, you put people out of work," said Ford, citing two large and controversial developments. "I've always said, if you like looking at it, and you don't want it developed, then buy it."

Back in Oregon, the Waides' claim is among hundreds the state is processing. Opponents of the measure have filed a constitutional challenge. Until a resolution is reached, the state of Oregon, and local governments there, expect to face compensation claims worth between $54 million and $344 million yearly.


This article was printed via the web on 7/5/2005 10:53:50 AM . This article
appeared in The Post and Courier and updated online at Charleston.net on Tuesday, July 05, 2005.