A triad is a group of three. There are three broad and dependent themes plaguing the land use system. The program is broken; the program organization is dysfunctional; the program management is inept. These three themes form our triad and will be explored separately.
Triad is also a word used to describe a form of organized crime. That is coincidental – at least for now. Stay tuned – we will find out later if there is a connection.
This post will explore the notion that the program is broken. In this context the program means the statutes, administrative rules, procedures and to some extent certain court decisions. If it is broken that means that the program does not function as intended. Whether or not the intentions are workable will be covered elsewhere.
Just to keep things simple we can stipulate some of the original facts of the program. The original intention was to have a land use system that functioned as a well run government program defined by the state and implemented by local governments. The original intention was to protect resource lands by limiting incompatible uses on rural lands and containing urban uses within UGBs. The original intention was to manage an orderly and necessary growth process for urban areas. The original intention was to ensure that the public had an important role in growth and land use decisions. There are a few other original intentions that we will cite as needed. We’ll say these are good intentions.
We should first point to successes even if mixed. Housing sprawl is more contained than in other states. The result is especially noticeable in the Willamette Valley and along the coast. A subsequent post may deconstruct this notion of success but it must be admitted that this result is popular. There are fewer large retail malls at the edge of cities in Oregon. This too is a popular result of the land use system.
Public participation is not a success. The process has been captured by special interest groups, lawyers, consultants and distant bureaucrats. The result has increased costs and made important local decisions difficult sometimes impossible but has not increased the quality of our cities. Our cities look like cities anywhere. Our roads and schools are as stressed as anywhere else. Small towns and rural places are as stressed as anywhere else.
Industrial farm and forest operations are no better off except for less pressure from housing. Conflicting uses on farm and forest lands are managed primarily by the legislature not the land use bureaucracy. One of the original intentions that does not seem to be working is the reliance on counties to protect rural lands in balanced partnership with cities who develop land. For a number of reasons including tax revenues counties are not as an effective counter balance to urbanization as was intended.
Important natural resources such as wetlands, endangered species and habitat are primarily managed by action of federal law. Coastal management is a federal program that each coastal state manages with a coastal commission although in Oregon the commission does other things as well.
The rules are not written by or for people who have to apply them
The first main problem is that the policies and rules are created by people who are not accountable or affected by whether they work well or work at all.
The statutes and rules have been written by ad hoc advisory groups of policy advocates assembled to address the topic of the day. There is no quality control and no one is held accountable for system failure. One might expect that administrative rules would be written to help local governments perform planning activities with reliable clarity. One would be wrong. The administrative rules are often just tidbits of additional policy language that in key instances use different wording than or even contradict the policy goal language they should clarify and – well – administer. They altogether lack reliable help for local governments.
The second main problem that breaks the land use program is the many statutes, goals and administrative rules that have been cobbled together over time. No one is effectively managing the inter-play of the various components. One might expect that LCDC is filling that role. They should be but they are political appointees not technicians and are always busy like Lucy at the candy factory. The political candy making has been sloppy. For example, the language in the housing and economic development rules does not mesh well with the language in the urbanization rule. The language in these three rules does not mesh well with the language in the respective goals and statutes. Court decisions have illuminated the muddle not resolved it, especially the decisions on the Metro reserves, McMinnville’s Goal 14 analysis and Woodburn’s UGB expansion. The lack of reliable guidance, the inconsistencies and the sloppy language are exploited by opponents to show that a local decision failed in one way or another. If the rules seem to demand apples and oranges it is easy to demonstrate that the fruit of local planning projects fell short of being two contradictory things at once.
Bureaucrats captured by special interests and self interest
In theory the contradicting intentions of land conservation and development are held in tension and balance by über-wise administrators and staff who tend to the details. In fact an anti-development preference has become entrenched – for a predictable reason. Those bureaucrats are acting in their own self interest not the public interest, for reasons explained it theories about public choice and bureaucracy.
The courts have struggled to sort out the intentions and contradictions but have not been able to fix the system so it works successfully as a balanced system. That’s not really their job but no one else is doing it either. The legislature throws in a patch occasionally but has been unable to tackle systemic reform. The accumulated patches are now part of the problem.
The blue screen of death
The sloppy rules and inherent contradiction of land conservation and development introduce an unresolved ‘bug’ into the land use system. If we were writing an operating system for a personal computer the mishmash of rules would result in the frequent ‘blue screen of death’ that plagued early Microsoft products. At the time this situation created a market failure, a mandate to get better or die and an opening for competitors. In many ways Oregon is running the ms-dos of land use. Both are artifacts of the same era. Will Oregon land use get better or die? Where is the iPhone of land use? Where is the creative disruption?
For special interest groups, the ‘blue screen of death’ is regarded as a useful feature. It delivers victory when something they oppose is stopped by a system that doesn’t function. There is no reliable way to get to yes. A system that gives individual opponents the ability to block difficult compromise decisions by elected local leaders is no longer a democracy or a republic. Opponents have tremendous power and they won’t give it up without a fight.
Land use is broken
The practical result is that local governments face increasing cost and risk for planning in a system of decreasing reliability. Those costs are paid by citizens – directly as taxes and indirectly as lost local control, lost opportunities and cuts to important services. The benefits are collected by special interest groups, consultants and lawyers. Decisions are made by motivated opponents and bureaucrats not the communities that bear the costs and impacts of conservation and development.
The political result is that the broken system loses friends with each egregious incident. Land use has become dependent on a narrowing slice of one party rule and as such the program is at risk when the political winds blow even slightly in another direction.
This post will be edited to increase clarity and completeness.