Good zoning makes good communities. Measure 37 is an attack on zoning.

By Richard van Pelt of Salem, Oregon who describes himself as "a melancholy fifth-generation Oregonian."

In his poem, Mending Wall, Robert Frost penned these lines: "Good fences make good neighbors." His poem stands as a metaphor for one of the issues that now pits neighbor against neighbor.

He is all pine and I am apple-orchard.
My apple trees will never get across
And eat the cones under his pines, I tell him.
He only says, "Good fences make good neighbors."

Zoning, like good fences, preserves amity among community members by regulating what one can do with land without bringing harms to self, neighbors, or community. Zoning which occurs outside of a larger scheme risks being idiosyncratic, arbitrary, and/or capricious. Land use plans, comprehensive plans, Salem Futures; whatever they are called, they provide the framework within which zoning occurs. It is framework within which community members can live, work, enjoy, recreate, and die. That framework is at risk.

Zoning and comprehensive plans are not new. As early as the Fifth Century BCE, Rome adopted building regulations that resemble today's set-back requirements. In the 16th Century, the City of London regulated the location of businesses deemed offensive. By the end of the 17th Century, Massachusetts enacted similar regulations. As the nation became more complex and industrialized, municipalities began to adopt regulations designed to control the market forces in land development. In 1922, Congress enacted the Standard State Zoning Enabling Act, followed in 1928 by the Standard City Planning Enabling Act. The purpose of the planning act followed the realization that land use planning should provide the framework for local zoning.

Land is the least portable of property. I can take my book and sit elsewhere when disturbed; I cannot do so with my land. The comprehensive plan creates the context in which I can live and work in amity with my neighbors and with the confidence that the value of my property (economic and non-economic) is preserved.

SOMETHING there is that doesn't love a wall,
That sends the frozen-ground-swell under it,
And spills the upper boulders in the sun;
And makes gaps even two can pass abreast.
The work of hunters is another thing:
I have come after them and made repair
Where they have left not one stone on stone,
But they would have the rabbit out of hiding,
To please the yelping dogs.

Measure 37, like "the work of hunters..." seeks to leave "not one stone on stone" in order that "they would have the rabbit out of hiding,/To please the yelping dogs." Almost as a mantra, we have consistently tried to frame the issue of Measure 37 as a choice between growing around a plan or planning around growth. The passage of Measure 37 takes the predictability of zoning decisions out of the plan and thus makes land use decisions appear to members of the community as idiosyncratic, arbitrary, and capricious. The only sense (or conceivable rationality) to be found in such decisions is from the perspective of the claimant.

Before I built a wall I'd ask to know
What I was walling in or walling out,
And to whom I was like to give offence.
Something there is that doesn't love a wall,
That wants it down!"

Measure 37 is not an attack on SB 100 and Oregon's land use system; it is an attack on the very principle of zoning. It is like an audience listening to a Bach cantata, and having the performance interrupted by the crudest of gangsta' rap. At least the audience can get up and leave; neighbors cannot. Waiving a requirement that results in construction is surely a zoning decision, but one that occurs outside of any public process; thus the idiosyncratic nature of the claims. Measure 37 claims are protests against the land use system, and successful claims can effectively undermine and negate, giving offence where the goal intended civility and prosperity for Oregon and its citizens.

Measure 37 makes all new zoning voluntary and prospective; voluntary for current owners who can argue diminished value and enforceable only when the property changes hands. The principles and philosophy behind zoning run all through the land use system and this is the thread that holds the fabric together.

I have come after them and made repair
Where they have left not one stone on stone,
But they would have the rabbit out of hiding,
To please the yelping dogs. The gaps I mean,
No one has seen them made or heard them made,
But at spring mending-time we find them there.
I let my neighbor know beyond the hill;
And on a day we meet to walk the line
And set the wall between us once again.

What Measure 37 sought to break, HB 3540 seeks to repair. Though the bill makes substantial compromises in the direction of regulatory takings, it also seeks to maintain the goals that have served the State so well. This is done by providing an easy path for small claims while limiting to the extent of their losses those who seek more.

What neither the poem, nor this essay address is the retort that will surely come: "you can have both, just compensate me for my loss." Just compensation, the Fifth Amendment with its enigmatic semi-colon we leave for another day, closing instead with words from Eugene O'Neill:

For greed, blind greed, we grew deaf
to the one question that matters, "What
does it profit a man if he gain the whole world but..."
Damn! Damn our dumb callousness.