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

In 20th century America, a regime of 鈥巄road-based government control over property rights took hold: zoning. By 1926, a U.S. Supreme 鈥嶤ourt case (Village of Euclid vs. Ambler Realty Co.) confirmed that local governments are afforded great 鈥巔ower to implement zoning controls over private property unless the restrictions are 鈥渃learly arbitrary 鈥巃nd unreasonable, having no substantial relation to the public health, safety, morals or general 鈥巜elfare.鈥�

In Portland, add to this mix:

• the groundbreaking 鈥渦rban growth boundary鈥� framework implemented 鈥巄y the state of Oregon in the 1970s (preventing urban sprawl by concentrating property development 鈥巜ithin a government-created ring on a map),
• the resulting controlled inventory of land available for 鈥巇evelopment,
• the strong current demand for affordable housing in Portland, and
• growing 鈥巈xploration of rent control measures.

The result is a fault line between individual property rights and 鈥巘he 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, 鈥巑arket conditions, governmental regulation and the wishes of your neighbors can manifest 鈥巒egatively. Eastmoreland鈥檚 large lots, tree-lined streets, and historic 鈥巋omes are cherished by residents. But what one landowner considers historic, another landowner 鈥巑ay consider ripe for redevelopment. And the shortage of housing in Portland is driving developers to 鈥巄uy lots at a premium and maximize density, at the expense (in the eyes of some) of the character of 鈥巘he neighborhood.

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

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

Under-regulation and over-regulation resulting from the original 鈥巇eveloper鈥檚 vision (which was surely based on his or her perception of value maximization at the time 鈥巓f development) are equally difficult to modify once all the homes are under separate ownership and 鈥巒o 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 鈥巗ome creative thinking and perhaps a few feuds. Eastmoreland residents seeking to preserve the 鈥巒eighborhood鈥檚 current flavor sought to block increased density through zoning changes, but these 鈥巈fforts failed in 2016 due to lack of support from the Portland City Council.

The Eastmoreland 鈥嶯eighborhood Association (ENA) then initiated an attempt (which remains alive, if on life support) to 鈥巆urb redevelopment by implementing a historic district designation that would preserve many 鈥巄uildings and property lines. Those efforts appear to be flagging from lack of support from the 鈥嶰regon State Historic Preservation Office due to questions about whether the required majority of 鈥嶦astmoreland property owners support the historic designation application.

Friends of mine who live in Eastmoreland recently took action on the most local level possible: the 鈥巋ouse next door was up for sale following the owner鈥檚 death, and word got around that a developer 鈥巜as 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 鈥� an Eastmoreland classic. They didn鈥檛 鈥巜ant to see it demolished, and wanted to preserve the character of their block. They approached the 鈥巇eveloper and struck a deal to step into the developer鈥檚 shoes and buy the house for themselves 鈥� 鈥巜ith a promise that they wouldn鈥檛 flip the house to another developer any time soon. They closed the 鈥巇eal 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 鈥巃ction in a tense and controversial situation. And it inspired me to think about these issues and write 鈥巘his, and to conclude that sometimes the smallest solution may be the best.

Great deference 鈥巗hould be given to the desires of a community 鈥� whether a neighborhood, a city or even a state 鈥� to 鈥巈xert reasonable control over its land. But when it鈥檚 not possible to bring a community together, the 鈥巄est approach may be for individuals to find ways to control what they can.

Dave Hepler is an attorney with Schwabe, Williamson & Wyatt PC, and chairman of its real estate and land use practice group. Contact him at 503-796-2885 or [email protected].