Thursday, June 25, 2009

Bright line or discretion in land use law?

   The heat of summer draws the mind to the coolness of the Pacific Northwest.  But there is a story in the Portland Oregonian that highlights interesting questions about the difficult choices between bright-line rules and discretion in land use law.
    Land use laws for farms are among the most interesting because they often reflect both a policy preference in favor of preserving the putatively valuable agricultural land use (perhaps ironically, especially often when the farms are close to urban areas, where the land might be more valuable as developed land) and the recognition that legal preferences may encourage landowners to abuse the preference.  Thus we have frequent stories of wealthy landowners placing a few head of cattle on land used for a mansion in order to take advantage of legal breaks for “farms.”  To prevent this kind of abuse, land use laws often restrict what a farmer can do on the land.
Sauvieisland     Northwest of Portland along the Columbia River is Sauvie Island, where a farmer rents his spread for weddings, picnics, and classical music concerts.  Is this an abuse of zoning for farms?  According to the story, Oregon law restricts non-agricultural income on farms such as this to 25 percent of the total.  For now, the farmer has stopped some of his non-farm events as he applies for a new land use permit.
   It’s easy to side with “discretion” here: Let the nice farmer hold his classical music concerts, right?  But allowing significant non-farm uses on areas zoned for agriculture might open the door for other clever skirts around the law by wealthy landowners.  Maybe a “bright-line” is the safest course.  But some Mozart and Oregon Riesling on a cool Northwest evening does sound very pleasant right now …

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