F ifteen years ago in November, Oregon voters stunned the state’s political establishment by approving Measure 37. The measure, which passed by an overwhelming margin, was a populist backlash against the unfair transaction thought to be at the heart of Oregon’s vaunted land use system.

That transaction involved land owners surrendering their right to develop their property in exchange for the “greater good” in the form of compact urban development and protected farm- and forestland. Not surprisingly, many of the people who owned that farm- and forestland didn’t want to be “protected” against the possibility of making money by developing it. That’s why some people bought land in the first place.

In the fall of 2004, voters said they recognized the injustice. Measure 37 allowed people to seek compensation from state and local government for regulations that decreased their property value. And if the government in question decided not to cough up the cash, property owners could develop under rules in place when they bought their land.

While impressive as a gesture of support for fair treatment, Measure 37 was a mess as public policy. The Legislature rendered it largely toothless by referring Measure 49 successfully to the ballot in 2007.

Revisiting Measure 37 makes for an interesting trip down memory lane, but more importantly, it addresses a question that’s worth asking today: How long is the memory of the average legislator?

Answer: less than 15 years.

To watch lawmakers take landlords to the woodshed this year is to recognize that they’ve learned little, if anything, in the decade and a half since Oregon’s voters said “enough.”

Oregon’s land use laws limit the supply of buildable land and, thus, enhance its value. Costly land exacerbates the affordability problem lawmakers are trying to address this session with a slew of bills aimed at the rental industry. The most significant, Senate Bill 608, imposes statewide rent control while making eviction more difficult. Others include House Bill 2764, which would affect the ability of landlords to request information about applicants’ criminal histories; and House Bill 2683, which would bar landlords from charging tenants extra for having pets.

Not all of these bills will become law, but they echo the coercive transaction that turned so many Oregonians into Measure 37 supporters. In service of the “greater good” in the form of lower rents available to more tenants, thousands of people are expected to surrender control of their property: what to charge for its use, how to minimize the risk they incur by renting it, and so on.

No one should expect a populist eruption in support of landlords because, well, they’re not very popular. But regulatory takings for which property owners aren’t compensated do create consequences beyond ill-advised ballot measures. The most obvious in this case is a shortage of the very thing lawmakers want, affordable rentals. Given what lawmakers have done already and what they seem likely to do in the years to come, who in their right mind would get into the rental business at all?

Only in the Oregon Legislature, meanwhile, would it seem like a good idea to solve a problem by repeating its root cause. Land is expensive here, in large part, because lawmakers limited the ability of many landowners to develop. And because land is expensive, so are rentals, a problem lawmakers think they can fix by … hacking away at the property rights of landlords.

Does anyone really think this is going to work?

Assuming the Legislature is run someday by people who are serious about addressing Oregon’s housing-affordability problem, it’s hard to see how they’ll succeed without confronting what is, in some quarters, the state’s holy of holies: its land use system. The surest way to moderate housing costs is to relax land use restrictions. Lawmakers have made tiny steps in that direction, including the creation of an affordable-housing pilot program that will allow Bend to develop in a small area outside of its urban growth boundary. But such limited programs are not nearly enough to make a significant difference.

Relaxing Oregon’s stranglehold on growth will have consequences, not all of them good. Increased growth will require the use of land that is so attractively protected, and the end result is sure to be less scenic.

If nothing else, it would be refreshing to see lawmakers move beyond non-solutions such as rent control and discuss openly whether they value the state’s attractiveness or its affordability more, and to what degree. In the absence of such a discussion, affordability will continue to suffer.

— Erik Lukens is editor of The Bulletin.

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