Oregon is considered the epicenter of smart growth.  The basic structure of the Oregon land use control system is, according to supporters and detractors alike, being dismantled by a new law that was sold as a protection of property rights. 

From 1999 to 2003 Loudoun County, Va., was thought of as the home of smart growth for the East Coast south of the Potomac. Now the Supreme Court of Virginia has wiped out the major accomplishment of Loudoun County’s smart growth Board of Supervisors–protecting the Countryside of western Loudoun County.   

True Believers in the sanctity of private rights/property rights are burning up the Internet congratulating themselves from coast to coast. What is really going on here? 

This is the first of two columns that consider the private and public interests impacted by the distribution of urban and non-urban land uses. Before one can make sense out of recent news, an understanding of the context is essential. Today’s column explores the conflict between property rights and growth management. The next column will consider the flip-side of the issue, Land Conservation.

Background

We start with an overview of private rights/property rights and land use controls. Citizens of the United States enjoy an Anglo-American legal safety net that includes finely honed protection against an Anglican king taking a Catholic duke’s land to expand a royal hunting preserve. Over 300 years and an ocean removed from a agrarian society faced with problems of this kind, citizens of this nation-state find themselves in a fundamentally different context. They live in a 21^st century urban democracy with a market economy. Now every citizen is a little king–if they can afford a sharp lawyer, or better, a team of sharp lawyers. 

Primary threats to a contemporary citizen’s rights now come from the Dukes of Bentonville, the Earls of Enron, the Prince of Jackson, the pandering politicians to whom the economic royalty contribute money and credibility. There are also, of course, cabals of little kings. These cabals include conspiracies among land speculators, political parties, governmental regulators, lawyers and clubs of consumption. 

The existence of these clearly defined dangers that are reported daily in the mass media, masks the existence of an even bigger threat to citizen’s rights and freedom.  This overarching threat is the collective impact of individual actions of the little kings.

Each little king believes he is acting in his own best interest and is protecting the sacred rights inherent in owning a private fiefdom. The cumulative impact of these often well-intended acts is on the verge of wiping out collective prosperity, stability and sustainability in the name of private “rights.” 

The conflicts between private and collective (aka, public) rights are played out every hour in countless variations of the Fallacy of Composition–what is good for one is not good for all. In other words, often the cumulative impact of individual actions taken in pursuit of private “rights” are ultimately not good for anyone. This is especially true in a democracy with a market economy. One could make a different argument concerning the upper class in an oligarchy or the directorate of a dictatorship but in a democracy everyone loses.        

Amitai Etzioni has documented the corrosive economic and social aspects of this phenomenon and has articulated ways to balance private rights with public responsibilities. The imperative of redressing the gross imbalance between private rights and public responsibilities was part of both the Republican and the Democratic national presidential election platforms in 1992. Since then, this cause of economic, civic (aka, social) and physical decay has been given little attention. [See End Note One.] 

The domination by cabals of little kings and the unintended collective consequences of little king’s actions are both supported by the efforts of a few well funded “do-not-ever-consider-the-common-good” think tanks. These do not think tanks are funded by a clutch of ideologues who hang out at the top of the economic food chain.  

The “eleemosynary” cash flow to support “me first” causes exists because some of those who are most blessed in our nation-state find it very profitable to champion private rights as opposed to the collective rights of all citizens.

There is also popular support for the domination of private rights. In a complex, competitive society where values and morals are too often situational, it is gratifying to grasp and hold onto a simple concept like “private rights.” For this reason there is a large private rights/property rights cheering section. This crowd grows ever larger even if the collective impact of the individual pursuit of these rights is detrimental to every single individual, every family and every enterprise as well as every agency and institution. The popularity of private rights and the impotence of public responsibilities is magnified by jingoistic, pandering politicians.  

The Oregon Conflict

In this context, what is going on in Oregon? Oregon has been evolving a unique land use control system for over three decades. Gov. Tom McCall is given credit for providing the leadership to enact the tools, including the Urban Growth Boundary, to guide future growth and protect against the “Californication” of the Oregon landscape. While not perfect, many of the objectives supported by a majority of Oregon’s citizens are being achieved. 

Nearly two decades ago S/PI advised Henry Richmond, a chief apparatchik in the development of the Oregon land use control system, that the region needed to develop a more tamper-proof basis for its system than the ill-named “Police Power.” The Police Power is the common law power of governments to adopt controls to protect the public health, safety and general welfare. The Police Power is another element of United States citizen’s Anglo-American legal safety net and is every bit as well founded as the protection of private rights, including private property rights. The Police Power is a collective right that is intended to protect citizens in general. The Police Power has in recent times been repeatedly hammered by advocates of private rights/property rights. 

A core problem with land use controls based on the Police Power (traditional zoning, subdivision control, official map, etc.) is that in an ever more harried and complex society, the quantification and documentation of (and education about) public rights (and responsibilities) related to health, safety and general welfare have fallen far behind the simplistic drumbeat for private “rights.” (See “The Myths That Blind Us,” October 10, 2003 , and “The Mother of all Dysfunction,” 14 February 2005 ).

This is why market approaches are so important. With economic competition being the default setting for contemporary civilization, money beats ideology every time. It even trumps the excess wrought by an over emphasis on private rights.

This is why years ago S/PI warned Henry Richmond that, based on experience in New York, North Carolina, Maryland and Virginia, there was a clear and present danger of an interest group devising a way to use the king’s hunting preserve expansion defense to undermine the collective good. It was suggested that if this happened, Oregonians could not, due to the primitive level of understanding about human settlement patterns, prove the public health, safety and general welfare argument that underpinned judicial support for the control of factory locations and the preservation of historic facades (e.g., traditional land use controls). 

The institution Henry headed, The 1000 Friends of Oregon, started to develop a market-based approach, but then Henry moved on to other things. Without a comprehensive conceptual framework, the idea degenerated into another incomplete municipal fiscal impact exercise.   

Now the Oregon land use control system is under attack by land owners wielding a 2004 ballot initiative called “Measure 37." This “property rights” measure was sold as a protection of the rights of the “small family farm and the aging land owner.” The election campaign was paid for by speculative land owners–corporate and individual. That should have been a clue that the measure was not what the ads made it out to be. [See End Note Two.]

Theory Versus Practice

There is, of course, nothing “wrong” in theory with a provision that compensates a private owner for the detrimental impact of a public-benefit regulation on the value of a specific parcel of land as long as there is a level playing field. 

To be fair to the public as well as the private owner, any calculation of the amount of compensation due a land owner due to regulation that benefits the general public must also reflect:  

• An accounting of the contribution to the parcel’s value made by public actions that were not directly and proportionally contributed to by the property owner. (This accounts for private windfalls due to public actions.)

• Allocation of the full capital cost of public support for the new urban land use. (These cases arise primarily outside the area that is supported by public and private urban services. This cost allocation would be an offset against owner compensation.) [See End Note Three.]

• Assurance that the future owner will pay the full operating cost of all services, especially the location-variable costs of 40 +/- services and goods that make their urban life possible.

These three spheres of equitable allocation of the cost of supporting urban land uses are all critical. No one is asking to be compensated for a lower value in a sale of land to carry out extensive, non-urban, (e.g. agricultural and forestal) land uses. 

A full accounting would drive down the “value” of the land now devoted to non-urban uses, and mean:  

• The long-time owner who wants to sell out for urban land uses might have to pay a service fee. A fairly allocated fee might exceed the difference between the profit from selling the land for urban land uses vs. selling it for extensive, non-urban land uses.

• The charges to the new urban land user would be so high that the market for McMansions and second homes in scattered, dysfunctional locations would dry up.

During the evolution of Anglo-American legal rights over the last 790 years, the assumption has been that there was a rough balance between these public vs. private cost allocations in the agglomeration of urban space and the support of non-urban land uses. For urban land uses the property tax has been a rough, if increasingly unfair, way of balancing the books. [See End Note Four.] 

For extensive, non-urban land uses, the assumption of a rough balance was probably close to correct in Oregon 140 years ago when 95% +/- of the population was directly supported by non-urban land uses and there was little cost to support these extensive, non-urban uses of land. Much of the cost was paid in sweat equity (e.g., two weeks a year labor on road work) and by barter (e.g., room and board for a bridge crew). In addition, the infrastructure did not have to be replaced every few years. Finally, before computers, calculating these complex account balances would have been impossible. Whatever the reasons, there has been no comprehensive allocation of the public vs. private contributions to non-urban land value. [See End Note Five.]

In 2005, the population of Oregon is 95% +/- urban and the costs of supporting urban services, especially in scattered, dysfunctional locations, are very high. These costs depend on the balance and mix of land uses among many owners, public and private. The total location-variable costs for same-sized urban dwellings in dysfunctional locations are in the range of ten times as high as the costs in functional, Balanced Communities. [See End Note Six.]

Groups of land speculators put a small part of the complex public/private equation into a ballot initiative without an semblance of a level playing field between public and private interests. Private right advocates have created a classic no-win conflict. To play with the words of Garrett Hardin, this is “The tragedy of no one being responsible for the Common Good.” 

Well meaning private rights acolytes and well intended small government advocates provided the votes needed for passage of Oregon Measure 37. Land owners have raced to take advantage of the windfall or, if no money is forthcoming, the exemption from land use controls. 

Both sides are charging to the barricades to fight over a tragically flawed idea presented in a foggy context. Under the current circumstances, if the land use control advocates win, it will be almost as bad as if they lose.

Nation-wide private rights advocates have responded with glee at the “victory.” They cite not just the rights of land owners but relief for the less-well-to-do from the high cost of housing. Oregon and Portland  bashers claim the lack of affordable and accessible housing is caused by the Urban Growth Boundary and other controls. (See “Affordable But No Bargain”, Feb. 17, 2003, and “The Housing Dilemma”, July 14, 2003.) This is a shame because the conclusions regarding the cost of housing used against the Oregon land use controls turns out to be based on bad information and faulty analysis.

The Loudoun Story

In Loudoun County the story is much more clear cut.  The admonition to not base the controls on the Police Power was not confined to conversations at national growth management conclaves but spelled out explicitly in public meeting after public meeting. The theme was: Do not rely on traditional five-, 10- and 20-acre zoning to protect the Countryside or to enhance the Urbanside. The admonition was to elect a Board of Supervisors that would create a new comprehensive plan with Balanced Communities and a Clear Edge between the Urbanside and the Countryside. [See End Note Seven.]

The primary strategy to guide future urban development in the eastern part of Loudoun County and to enhance the Countryside in the western part of Loudoun was to fairly allocate the true costs of location-variable services. There would be a role for traditional land use controls but they would not have carried the primary burden of creating functional human settlement patterns in eastern or western Loudoun County.

The advice was ignored even by the supporters of more rational settlement patterns. It was completely ignored by smart growth supervisors elected in November of 1999.

The glee of the private rights groups over the recent Virginia Supreme Court decision is even less well founded than that in Oregon.  This is because the regulations were tossed out on a technicality. The Virginia Supreme Court did not address the private rights issue: It found reversible error in the lack of specificity in the notice of the area where the regulations were to be changed.  [See End Note Eight.] 

When all the facts are considered, it is hard to imagine how the judges can sleep at night. However, the problem arose when supporters of functional settlement patterns did not embrace a system based on broad economic grounds. Thus there was no widespread public understanding or support for the policy. This gave land speculators the confidence to hire teams of lawyers to dig up nit-picking details to challenge. It also gave pandering politicians a way to flog private rights and submerge public rights and responsibilities.

The real tragedy is that the 10- and 20-acre lots (or even 50-acre lots) are not the solution to preserving the Countryside in western Loudoun or evolving Balanced Communities in the eastern part of the County. As in Oregon, the citizens of Loudoun County are rushing to the barricades to re-fight the wrong fight. We deal with this in the next column on Land Conservation.

The Solution Still Seems Obvious

There is a market-based resolution for the conflict between the managed growth advocates and the speculators who want to sell land for McMansions and second homes in both Oregon and Virginia. 

The solution is the same one we suggested to Henry Richmond and that was presented in Loudoun County over a two-year period. The strategy is articulated in the work of S/PI including the columns at Bacons Rebellion. It is a simple “third way” (win-win) solution:

Charge the full cost of all the location-variable services that support contemporary society. Adam Smith’s “Invisible Hand” will do the rest.  

Does anyone have an alternative idea of how to protect the public interest and private interests? We have yet to hear one.

We believe a sustainable solution requires Fundamental Change in governance structure so that it reflects 21^st century reality. In both Oregon and Virginia the situation is exacerbated by what S/PI call Geographic Illiteracy.  [See End Note Nine.]

In the next column S/PI will consider the obverse of traditional land use controls: Land Conservation.

-- March 14, 2005

END NOTES:

[1]. Etzioni, Amitai.  My Brothers Keeper, Rowman & Littlefield, Lanham, Md., 2003 and the work outlined therein.

[2]. The Washington Post presents a summary of the Oregon case. See Harden, Blaine, “Anti-Sprawl Laws, Property Rights Collide in Oregon ”, The Washington Post, page A-1, February 28, 2005. Another perspective is provided by Roger Lewis in his “Shaping the City” column, “Balancing Private Property and Public Good; Sensible, Flexible Growth Plans Needed”, The Washington Post, March 5, 2005, page F-3. By the time this column is published, Googling the topic will result in a flood of additional commentary pro and con.

[3]. Discussion of “Town of Ramapo" timing and of “adequate public facilities” provisions that deal with the future provision of urban services is not an issue in most of these cases due to the scale of the non-urban areas and the location of the property involved. This topic will be addressed in the next column on Land Conservation.

[4]. A discussion of the fairness of the property tax on urban land uses is beyond the scope of this column. However, the literature on a separate tax on land and on buildings in urban areas can be found by searching the topic “Henry George.” The concept of separating the tax on land from the tax on buildings is named after Mr. George, the 19^th century advocate of this practice. The Henry George property tax strategy is now employed in Australia, New Zealand and by some jurisdictions in Pennsylvania. There is an active effort to implement it in the Federal District of Columbia.

[5]. The disparity between services to urban and non-urban land has been addressed in part by use-value taxation and other techniques the discussion of which is beyond the scope of this column.

[6]. The basis for these calculations can be found with the discussion of the Five Natural Laws of Human Settlement Patterns in Chapter Four of The Shape of the Future. In the vocabulary used by S/PI, these cost differences exist between units of similar size and with similar service demands inside the Clear Edge (the Urbanside) in contrast to those in scattered locations outside the Clear Edge (Countryside). For the 10X ratio to hold, the urban fabric inside the Clear Edge would be made up of Balanced Communities. In the terminology used in Oregon, these differences would exist inside and outside the “Urban Growth Boundary” with the same pattern and density conditions applying. 

[7]. In this case a picture is worth 100,000 words. The map in the photo that ran on page A-14 of The Washington Post on July 22, 2001, (“Loudoun’s Ambitious Search for Perfection”) and again on page B-1 on March 5, 2005, (“Slow-Growth Camp Blasts Court’s Logic”) is the very same map that was used to illustrate the Loudoun County discussions prior to the 1999 election. This map depicts the area to be covered by Balanced Communities in eastern Loudoun and a proposed location for a Clear Edge. This map was used to illustrate both the Balanced Community concept and the imperative of a fair allocation of location-variable costs strategy. 

Disaggregated, Balanced Communities in the western part of Loudoun County are not shown on this map. The spacial context of disaggregated but balanced communities will be addressed in the next column on Land Conservation.

The map also demonstrates that S/PI did not advocated “slow growth” or “no growth.” At minimum sustainable densities, the map provides for more houses and more jobs than would be achieved the under the regulations now in force. The difference is that the new jobs/housing/services/recreation/amenity would be in balance and in sustainable patterns and densities. Under current regulations, locational dysfunction will stifle development long before theoretical holding capacity is reached.  

[8]. This is a favorite tactic of the Virginia judiciary when dealing with  land use issues: Find a technicality upon which to decide the case rather than consider the merits of the case. This keeps the judges out of political hot water. The ploy would be a natural course of action because, to the uniformed, the 2003 election might appear to indicated a swing back from majority concern about the impact of scattered urban land uses in Loudoun County.

It is true that the general notice did not specifically outline the area where the controls would change. Thus, the notice provision might be thought of as a case of sloppy drafting by the lawyers doing the work for the Board of Supervisors. Within the overall context, and given all the notices, mailings and hearings, the result is pure politics. The broad notice and the county-wide mailings were intended to underscore the fact that the proposed zoning change was a major change that directly and indirectly impacted the entire county.

There is one other footnote to this case. On March 6, The Washington Post reported that some in Loudoun County government were sorry that they had not accepted a “compromise.” Shortly after the current board was elected in 2003, those suing the County over the zoning in the western part of the County proposed a compromise. Attorney John Foote who penned the compromise is no fool. He understands land consumption rates, the impact of compound interest, and internal-rate-of-return calculations. He knew that more of his clients would make more money with five- and 10-acre lots than with either a reversion to 3-acre lots or the 10- and 20-acre provision of the new controls.   As noted in the text of this column, none of the three alternatives support conservation and enhancement of the Countryside in Loudoun County.

[9].  It has been called to our attention that the term “Geographic Illiteracy” (or in the alternative “Spacial and Geographic Illiteracy”) is in need of a definition. The existence of pervasive Geographical Illiteracy is the second of the Nine Fundamental Theses presented in Chapter 1 Box 1 of The Shape of the Future. Chapter 2 pinpoints Geographic Illiteracy as a prime cause for citizens' failure to understand human settlement patterns. There is an entire chapter devoted to the causes of Spacial and Geographic Illiteracy (Chapter 16). There are 16 references to the phrase throughout the book, however, "Appendix One, The Lexicon" does not include a definition. Here is a draft definition plus a description of the understandings necessary to overcome Geographical Illiteracy.

Geographic Illiteracy is an individual and collective malady that limits the ability of individuals and groups to understand and function in the economic, social and physical spheres of contemporary human activity.  The larger the number of citizens who suffer from this affliction at the family, dooryard, cluster, neighborhood, village and community scales, or in an agency, enterprise or institution, the worse the economic, social and physical impact.  

There are five areas of understanding that must be achieved to eliminate Geographic Illiteracy: Basic Orientation, Urban Context, Regional Context, Critical Spacial Relationships and Regional Metrics.  The following is an outline of the components needed to overcome Geographic Illiteracy. 

1.  Basic Orientation: All citizens ,whether in the Urbanside or in the Countryside, need a basic orientation to their context. They must be able to intuitively answer locational questions such as:

• What direction is North? (and East?, South? and West?)

• What watershed are you in?, Which direction is “down stream” and if you go down stream where do you end up?

• From what direction do the prevailing winds blow?

Informed navigation in the Countryside requires this information. It is also required to have a working knowledge of climate, weather and all fundamental ecological relationships.

2.  Urban Context. Moving from the Countryside to the Urbanside, citizens need a workable system for “finding their way around.” Even those who live most of their lives in the Countryside need a way to navigate in the Urbanside. MIT’s Kevin Lynch has studied and documented human perception of their urban surroundings. His book The Image of the City, (1960) is a classic study of how humans relate to their urban environment and how they understand and use buildings, spaces and landmarks to navigate. 

3.  Regional Context.  The title of Lynch’s book is a clue to the scope of the third tool needed to overcome Geographic Illiteracy. Citizens' urban context is now the region, not the “city.” Much of Lynch’s work related to foot travel. Moving to the regional scale means that there must be an understanding of the Basic Orientation and the Urban Context, but these skills must be applied to an urban context that is spread over a vastly larger area and with a lower intensity of identifiable landmarks. An understanding of regional context is clouded by differing modes of travel. The sequencing of travel by different modes at different speeds and using different nomenclature is baffling to many. Chapters 8 and 9 of The Shape of the Future examine the role of Zip Codes, Area Codes, municipal borders, school service areas, postal addresses, subdivision names and other arbitrary lines in creating confusion about one's cluster, neighborhood and village, not to mention the location of other destinations spread over millions of acres. 

To make matters worse, so much of contemporary development looks just the same–three blocks east of which Starbucks? Tony Hiss’s 1990 book, The Experience of Place, has added important insights about specific landscapes. Other authors have decried the banality of the “suburban” experience and note that no one vacations is Springfield, Va. Attacks on the “suburban” landscape mask the much more important malady of Geographic Illiteracy. The Regional Context is the most difficult Geographic Literacy tool for citizens to master.

Among the relationships that are most difficult to grasp are those that reflect the First Natural Law of Human Settlement Patterns:  A= PiR2   The power of  A= PiR2 will be demonstrated in the next column on Land Conservation.

4.  Critical Spacial Relationships. In order to understand Regional Context, it is useful to have a set of Basic Relationships or “elements of regional reality” to anchor understanding of spacial distribution. These Basic Relationships differ from region to region. This is an area to which S/PI has devoted considerable attention. For the National Capital Subregion, S/PI has identified five critical spacial relationships that are particularly important. They can be found in “Five Critical Realities That Shape the Future”, December 15, 2003. Depending upon ones interest, there may be many Critical Spacial Relationships that help create an understanding (aka, cognitive map) of one’s region and subregion.

5.  Regional Metrics. The last element necessary to overcome Geographic Illiteracy is a set of ratios and relationships that can be used to relate one set of data (e.g. the number of dwellings projected for the next decade) to another (e.g. the number of acres at minimum density that these units will occupy). 

It is helpful to have “guidelines” or “yardsticks” to test and put into context Regional Metrics. S/PI has developed yardsticks for subregional and regional tours in the United States and for those visiting urban areas in Western Europe.