Oregon Ballot Measure 37 (2004)

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Measure 37 is a controversial land-use ballot initiative passed in the U.S. state of Oregon in 2004 and now codified as Oregon Revised Statutes (ORS) 197.352. Measure 37 has figured prominently in debates about the rights of property owners versus the public's right to enforce environmental and other land use regulations.

Contents 1 Content of the proposal 2 Legal Context 3 Legislative Text 4 Support for Measure 37 5 Opposition to Measure 37 6 Impact so far 7 References 8 External links

[edit] Content of the proposal

Measure 37 requires taxpayers to compensate property owners whose property value is affected by environmental or other land use regulations. If the government fails to compensate property owners, Measure 37 allows property owners to disregard existing environmental and land use regulations and develop their property as they see fit ^[1].

[edit] Legal Context

Measure 37 is a "regulatory takings" initiative, claiming to find support in the U.S Constitutional takings clause (fifth amendment). Any land-use regulation (e.g. regulations designed to protect the environment) can thus be interpreted as a violation of the taking clause. Historically, the takings clause has only applied to cases in which the government either physically appropriated private property for public use ^[2], or where the government regulation was so drastic as to deprive the property owner of any economically viable use of his land. In this sense, the interpretation of the takings clause upon which Measure 37 is based can be considered unusually broad.

Measure 37 was overturned in a circuit court decision, but the Oregon Supreme Court reversed that decision, ruling that the law was not unconstitutional, and that it was not empowered to rule on its efficacy:

Whether Measure 37 as a policy choice is wise or foolish, farsighted or blind, is beyond this court's purview.

[edit] Legislative Text

The following are the first three sections of the law, for a complete version, see Oregon State Land Use site.

1) If a public entity enacts or enforces a new land use regulation or enforces a land use regulation enacted prior to the effective date of this amendment that restricts the use of private real property or any interest therein and has the effect of reducing the fair market value of the property, or any interest therein, then the owner of the property shall be paid just compensation.

2) Just compensation shall be equal to the reduction in the fair market value of the affected property interest resulting from enactment or enforcement of the land use regulation as of the date the owner makes written demand for compensation under this act.

3) Subsection (1) of this act shall not apply to land use regulations:

A) Restricting or prohibiting activities commonly and historically recognized as public nuisances under common law. This subsection shall be construed narrowly in favor of a finding of compensation under this act;

B) Restricting or prohibiting activities for the protection of public health and safety, such as fire and building codes, health and sanitation regulations, solid or hazardous waste regulations, and pollution control regulations;

C) To the extent the land use regulation is required to comply with federal law;

D) Restricting or prohibiting the use of a property for the purpose of selling pornography or performing nude dancing. Nothing in this subsection, however, is intended to affect or alter rights provided by the Oregon or United States Constitutions; or

E) Enacted prior to the date of acquisition of the property by the owner or a family member of the owner who owned the subject property prior to acquisition or inheritance by the owner, whichever occurred first.

[edit] Support for Measure 37

Supporters argue that Measure 37 protects the value of property by insuring that new legislation doesn't decrease property values or limit development possibilities. Timber companies and real estate developers were the most prominent supporters (and the primary funders) of Measure 37 ^[3], presumably because environmental and other land use regulations would impact them most directly.

[edit] Opposition to Measure 37

The following major arguments have been advanced against Measure 37:

• Given that a large portion of a property's value is created by legislation (e.g. laws providing for public roads, sewers, electrical lines, parks, etc), it is unreasonable to require the government to compensate property owners for any additional legislation which might restrict property use in the name of the public good ^[4]

• Environmental impact. Since the government will rarely be able to fund the measure, many property owners, especially major developers, will be able to ignore environmental legislation enacted to protect the public good. This has already led to significant blows to state efforts to protect endangered species^[5]. In fact, to date existing land use restrictions have been waived in every claim filed under Measure 37.

• Questionable legality. Rulings by [The_supreme_court_of_the_united_states|The Supreme Court], have deferred to the State and local legislative authorities in determining what constitutes a legitimate exercise of protection of the public interest, as in the 5-4 "Kelo Decision" which allowed takings of private property when a significant public good could be demonstrated. On this ground, existing environmental legislation, even if a 'taking' under the fifth amendment, ought to be allowed as a reasonable expression of the public good.^{[citation needed]}

• As more claims are being filed, many voters are feeling the impact of unregulated development^[6] and public support for the Measure has waned ^[7].

• The legislation imposes a large burden on the taxpayers, because there is no provision for funding any payoffs for claims under Measure 37 within the Measure's text. Therefore, all funds must be taken from the general budget of the municipality, which includes funding for schools, roads, health clinics, etc. In order to maintain the existing levels of protection for their communities, taxpayers would have to fund billions of dollars in compensation to landowners.^{[citation needed]}

• The legislation is arbitrary, in that it creates unjustified exceptions for certain kinds of businesses such as pornography and nude dancing, which are denied redress via the measure, while other sorts of developers are granted major protections.^{[citation needed]}

• The legislation is unfair, in that degree of compensation is largely determined by the date the property was acquired. Owners are still subject to regulations enacted before the date at which they acquired the property, such that zoning laws are not enforced equally for all Oregonians simply because of the date of purchase of the property.^{[citation needed]}

[edit] Impact so far

As of October 18, 2006, 3,343 Measure 37 claims for compensation or land use waivers had been filed covering 217,976 acres and tens of millions of dollars^[8].

The claims filed include mobile home parks in sacred native burial grounds, shopping malls in farmland, and gravel pit mines in residential neighborhoods. There are no provisions in the law that public notice must be provided to neighboring property owners when a claim is filed. Because municipalities can not afford the billions in compensation, the laws have been waived in every case ^[9].

[edit] References

1. ^ http://www.lcd.state.or.us/LCD/MEASURE37/index.shtml
2. ^ http://caselaw.lp.findlaw.com/data/constitution/amendment05/14.html
3. ^ http://www.washingtonpost.com/ac2/wp-dyn/A58185-2005Feb27?language=printer
4. ^ http://www.law.georgetown.edu/gelpi/takings/rypkema.htm property rights
5. ^ http://www.headwatersnews.org/wotr.esareform101105.html
6. ^ http://www.pdx.edu/media/i/m/ims_M37brainerdreport.pdf
7. ^ http://www.hcn.org/servlets/hcn.Article?article_id=16420
8. ^ http://www.pdx.edu/media/i/m/ims_M37brainerdreport.pdf
9. ^ http://www.pdx.edu/media/i/m/ims_M37brainerdreport.pdf

[edit] External links

Background on Property Rights

• Georgetown University background on the takings issue
• a "Republican developer type" on property rights from the GELPI site

Oregon specific linkings

• State of Oregon's Measure 37 page
• Full text of Measure 37 [1]
• Portland State University project measuring the impact of Measure 37, including searchable index of claims [2]
• Washington Post article about Measure 37
• Land Use Watch articles about Measure 37 and other land use issues
• Report on impacts of Measure 37
• Measure 37 resources from land use advocates 1000 Friends of Oregon