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OP-­ED: Private property rights: Eastmoreland revisited

Daily Journal of Commerce Oregon
June 16, 2017

Overview

There is a fundamental tension between a property owner’s rights and the government’s role in regulating and limiting those rights. Historically, and still today in much of the world, landowners had a free hand to develop, divide and exploit their property; government largely stayed out of the way. But in the industrial and postindustrial world, society came to realize that rational limits on private property rights are often necessary to protect the larger landscape from, distasteful, dangerous or incongruous choices by individual landowners.

In 20th century America, a regime of broad-­‐based government control over property rights took hold: zoning. By 1926, a U.S. Supreme Court case (Village of Euclid vs. Ambler Realty Co.) confirmed that local governments are afforded great power to implement zoning controls over private property unless the restrictions are “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare.” In Portland, add to this mix:

  • the groundbreaking “urban growth boundary” framework implemented by the state of Oregon in the 1970s (preventing urban sprawl by concentrating property development within a government-­‐created ring on a map),
  • the resulting controlled inventory of land available for development,
  • the strong current demand for affordable housing in Portland, and
  • growing exploration of rent control

The result is a fault line between individual property rights and the interests of broader society (with government as its proxy) to limit those rights.

Recent controversy in Eastmoreland illustrates how these tensions between individual property rights, market conditions, governmental regulation and the wishes of your neighbors can manifest negatively. Eastmoreland’s large lots, tree-­‐ lined streets, and historic homes are cherished by residents. But what one landowner considers historic, another landowner may consider ripe for redevelopment. And the shortage of housing in Portland is driving developers to buy lots at a premium and maximize density, at the expense (in the eyes of some) of the character of the neighborhood.

Where should the line be drawn between an individual owner’s rights with respect to his or her own property, and the rights of all owners, collectively, to expect common values to be respected and enforced? And who should be empowered to draw that line?

It’s easy for a developer to impose restrictions on all the lots of a new development while still under the common ownership of the developer. They can impose no cars on blocks, no homes over/under certain sizes or group approval of certain architectural features. In some cases a very limited color palette for home exteriors can be imposed to promote uniformity. But what happens after all the homes have been built and sold to individual owners?

Under-­‐regulation and over-­‐regulation resulting from the original developer’s vision

(which was surely based on his or her perception of value maximization at the time of development) are equally difficult to modify once all the homes are under separate ownership and no single owner has the right to change the rules.

In Eastmoreland, this conflict between the rights of the individual and the rights of the group has led to some creative thinking and perhaps a few feuds. Eastmoreland residents seeking to preserve the neighborhood’s current flavor sought to block increased density through zoning changes, but these efforts failed in 2016 due to lack of support from the Portland City Council.

The Eastmoreland Neighborhood Association (ENA) then initiated an attempt (which remains alive, if on life support) to curb redevelopment by implementing a historic district designation that would preserve many buildings and property lines. Those efforts appear to be flagging from lack of support from the Oregon State Historic Preservation Office due to questions about whether the required majority of Eastmoreland property owners support the historic designation application.

Friends of mine who live in Eastmoreland recently took action on the most local level possible: the house next door was up for sale following the owner’s death, and word got around that a developer was under contract to purchase the property, with plans to scrap the grand old building, divide the lot and build two new homes. My friends loved the old house – an Eastmoreland classic. They didn’t want to see it demolished, and wanted to preserve the character of their block. They approached the developer and struck a deal to step into the developer’s shoes and buy the house for themselves – with a promise that they wouldn’t flip the house to another developer any time soon. They closed the deal and are now planning to renovate before moving in permanently.

This is not a large-­‐scale solution, but it impressed me as a quiet, agreeable way to take meaningful action in a tense and controversial situation. And it inspired me to think about these issues and write this, and to conclude that sometimes the smallest solution may be the best.

Great deference should be given to the desires of a community – whether a neighborhood, a city or even a state – to exert reasonable control over its land. But when it’s not possible to bring a community together, the best approach may be for individuals to find ways to control what they can.

Column first appeared in the Daily Journal of Commerce on June 16, 2017.

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