Oregon Ballot Measure 37 (2004)
Encyclopedia
Oregon Ballot Measure 37 is a controversial land-use
ballot initiative
that passed in the U.S. state
of Oregon
in 2004 and is now codified as Oregon Revised Statutes
(ORS) 195.305. 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. Voters passed Measure 49 in 2007, substantially reducing the impact of Measure 37.
.
The Fifth Amendment to the United States Constitution
ends as follows:
That phrase provides the foundation for the government power of eminent domain
, and requires compensation for governmental appropriations of physical property. It has occasionally been used to require compensation for use restrictions that deprive the owner of any economically viable use of land. See the 1922 United States Supreme Court case Pennsylvania Coal Co. v. Mahon
.)
The advocates of Measure 37 employed a more expansive interpretation of the concept of regulatory taking than required by the Supreme Court, considering any reduction in a piece of property's value - for instance, a reduction resulting from an environmental regulation - to require compensation to the owner.
Measure 37 was ruled unconstitutional in a 2005 circuit court decision, but the Oregon Supreme Court
reversed that decision, ruling that the law was not unconstitutional, and noting that the Court was not empowered to rule on its efficacy:
and Portland's
1972 Downtown Plan established bold guidelines for the regulation of land use. Oregon became known for its land use planning. While some Oregonians take great pride in that, others consider themselves victimized by government oversight. The strong 2004 passage (61%) of Measure 37 is considered a political backlash to that legacy of regulation, and follows several other unsuccessful efforts to restrict land use regulation:
In 2006, voters in six western states considered ballot initiatives similar to Oregon's 2004 Measure 37. All states except Arizona rejected the initiatives.
Arizona's initiative combined the land use/regulatory taking issue central to Oregon Ballot Measure 37 with a restriction on eminent domain (similar to Oregon Ballot Measure 39 (2006)
). The Arizona initiative's proponents focused their arguments almost exclusively on the less controversial eminent domain portion of the initiative.
The Nevada initiative also combined the two issues. The regulatory taking portions of Nevada's initiative (i.e., those most similar to Oregon's Measure 37) were removed by the state Supreme Court, and voters approved the remaining restrictions on eminent domain. The Nevada initiative will be reviewed in the next election.
This surge in related initiatives reflects the rising influence of political activists who coordinate the production and advocacy of state ballot initiatives on a national level. Many of the ballot initiatives in the following table (in numerous states) have been financed by New York libertarian Howie Rich and groups he is involved with, most notably Americans for Limited Government
.
2006 initiatives restricting regulation of land use and condemnation:
Measure 37's sponsor, Oregonians In Action
, and various supporters drummed up support during the 2004 election using the case of Dorothy English, a then-92-year-old woman, as a cause célèbre
. Enacted zoning regulations prevented English from dividing her land into pieces that could go to each of her children.
The claims filed included 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 were waived in every case but one.
Claims filed in Portland, Oregon
, by December 4, 2006, totalled over $250 million. Many of these claims were filed by major area land developers.
Outside of Oregon, some contend that Measure 37 may have decreased support for national anti-urban sprawl
legislation.
John Benton, a Hood River County fruit farmer, filed a Measure 37 claim, demanding either $57 million or the right to build 800 houses on his 210 acre (0.8498406 km²) of property. Neighboring farmers objected, due to the significant impact they anticipated such a change would bring to their community.
In the fall of 2006, the Palins, a Prineville couple, filed a Measure 37 claim, demanding either $200,000 or the right to develop their property, which is on a scenic portion of rimrock clearly visible from the city. The city did its own appraisal of the property's potential value, and offered $47,000. This was the first case where the government offered money instead of a waiver of land use restrictions, and highlights the Measure's lack of a clear process for determining the value associated with a claim.
In a January 15, 2007 article, a statewide newspaper highlighted a Measure 37-based claim in Hood River County, in which land owners aim to develop a parcel of rural land eight times the size of the city of Hood River
:
ballot. It passed with 62% in favor.
The measure overturns and modifies many of the provisions of Measure 37. The Legislature stated that it would restrict the damaging effects of Measure 37 by limiting some of the development that measure permitted.
A record 117 paid arguments on Measure 49 appeared in the voter's pamphlet for that election, most favoring it.
Measure 49 passed by an even greater margin than Measure 37 had. The impact of the law is as follows. The measure no longer authorizes challenges to restrictions on industrial or commercial uses of property. In addition, claimants must prove their losses by presenting appraisals of the property one year before and one year after the enactment of the regulation. For land use restrictions enacted before 2007, the restriction may only be waived to permit the claimant to build one to three homes on their land, or up to 10 homes if the property is not high value agricultural land and they can show that the waiver is necessary to restore the appraised value of the property.
Oregon specific linkings
Political and legal analysis
Land use planning
Land-use planning is the term used for a branch of public policy encompassing various disciplines which seek to order and regulate land use in an efficient and ethical way, thus preventing land-use conflicts. Governments use land-use planning to manage the development of land within their...
ballot initiative
Initiative
In political science, an initiative is a means by which a petition signed by a certain minimum number of registered voters can force a public vote...
that passed in the U.S. state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
of Oregon
Oregon
Oregon is a state in the Pacific Northwest region of the United States. It is located on the Pacific coast, with Washington to the north, California to the south, Nevada on the southeast and Idaho to the east. The Columbia and Snake rivers delineate much of Oregon's northern and eastern...
in 2004 and is now codified as Oregon Revised Statutes
Oregon Revised Statutes
The Oregon Revised Statutes is the codified body of statutory law governing the U.S. state of Oregon, as enacted by the Oregon Legislative Assembly, and occasionally by citizen initiative...
(ORS) 195.305. 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. Voters passed Measure 49 in 2007, substantially reducing the impact of Measure 37.
Content of the proposal
The law enacted by Measure 37 allows property owners whose property value is reduced by environmental or other land use regulations to claim compensation from state or local government. If the government fails to compensate a claimant within two years of the claim, the law allows the claimant to use the property under only the regulations in place at the time he/she purchased the property. Certain types of regulations, however, are exempt from this.Legal context
Advocates for Measure 37 have described it as a protection against "regulatory taking," a notion with roots in an interpretation of the United States ConstitutionUnited States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
.
The Fifth Amendment to the United States Constitution
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
ends as follows:
That phrase provides the foundation for the government power of eminent domain
Eminent domain
Eminent domain , compulsory purchase , resumption/compulsory acquisition , or expropriation is an action of the state to seize a citizen's private property, expropriate property, or seize a citizen's rights in property with due monetary compensation, but without the owner's consent...
, and requires compensation for governmental appropriations of physical property. It has occasionally been used to require compensation for use restrictions that deprive the owner of any economically viable use of land. See the 1922 United States Supreme Court case Pennsylvania Coal Co. v. Mahon
Pennsylvania Coal Co. v. Mahon
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 , was a case in which the Supreme Court of the United States held that whether a regulatory act constitutes a taking requiring compensation depends on the extent of diminution in the value of the property....
.)
The advocates of Measure 37 employed a more expansive interpretation of the concept of regulatory taking than required by the Supreme Court, considering any reduction in a piece of property's value - for instance, a reduction resulting from an environmental regulation - to require compensation to the owner.
Measure 37 was ruled unconstitutional in a 2005 circuit court decision, but the Oregon Supreme Court
Oregon Supreme Court
The Oregon Supreme Court is the highest state court in the U.S. state of Oregon. The only court that may reverse or modify a decision of the Oregon Supreme Court is the Supreme Court of the United States. The OSC holds court at the Oregon Supreme Court Building in Salem, Oregon, near the capitol...
reversed that decision, ruling that the law was not unconstitutional, and noting that the Court was not empowered to rule on its efficacy:
Oregon
In the early 1970s, Senate Bill 100Oregon Senate Bills 100 and 101 (1973)
Oregon Senate Bills 100 and 101 were pieces of landmark legislation passed in 1973. It created a framework for land use planning across the state, requiring every city and county to develop a comprehensive plan for land use....
and Portland's
Portland, Oregon
Portland is a city located in the Pacific Northwest, near the confluence of the Willamette and Columbia rivers in the U.S. state of Oregon. As of the 2010 Census, it had a population of 583,776, making it the 29th most populous city in the United States...
1972 Downtown Plan established bold guidelines for the regulation of land use. Oregon became known for its land use planning. While some Oregonians take great pride in that, others consider themselves victimized by government oversight. The strong 2004 passage (61%) of Measure 37 is considered a political backlash to that legacy of regulation, and follows several other unsuccessful efforts to restrict land use regulation:
- Oregon Ballot Measure 65 (1998) and Oregon Ballot Measure 2 (2000) sought to restrict the Legislature's ability to regulate land use; both measures failed.
- Oregon Ballot Measure 7 (2000)Oregon Ballot Measure 7 (2000)Ballot Measure 7, an Oregon, United States ballot initiative that passed with over 53% approval in 2000, amended the Oregon Constitution, requiring the government to reimburse land owners when regulations reduced the value of their property....
was similar to Measure 37. It was approved, but struck down by the Oregon Supreme Court. - Measure 39Oregon Ballot Measure 39 (2006)Oregon Ballot Measure 39, passed in the 2006 General Election, is a ballot measure that prohibits the government from condemning property from one private party on behalf of another private party....
, which passed in 2006, restricted the use of eminent domainEminent domainEminent domain , compulsory purchase , resumption/compulsory acquisition , or expropriation is an action of the state to seize a citizen's private property, expropriate property, or seize a citizen's rights in property with due monetary compensation, but without the owner's consent...
. It was promoted by Oregonians In ActionOregonians In ActionOregonians in Action is an organization in Oregon, United States that seeks to reduce land use regulation. There are four legal entities that have used this name, but the one that is most active as of 2006 is the political action committee. Its committee number is 2793...
as a "natural extension" of Measure 37, and passed with very little opposition. - Measure 49, passed in 2007, virtually replaces Measure 37. It eliminated nearly every Measure 37 provision designed to allow pre-regulation use of one's own property, as well as all compensation provisions. It also addresses questions about transferability, and offered to fast-track some smaller Measure 37 claims under post 2007 land use regulations.
Nationwide
The state of Washington's legislature referred Initiative 164 (also known as Referendum 48) to the ballot in 1995. This "regulatory takings" bill was similar to Measure 37 in its restriction of local governments' ability to regulate land use. The bill was widely criticized, and was not approved by voters.In 2006, voters in six western states considered ballot initiatives similar to Oregon's 2004 Measure 37. All states except Arizona rejected the initiatives.
Arizona's initiative combined the land use/regulatory taking issue central to Oregon Ballot Measure 37 with a restriction on eminent domain (similar to Oregon Ballot Measure 39 (2006)
Oregon Ballot Measure 39 (2006)
Oregon Ballot Measure 39, passed in the 2006 General Election, is a ballot measure that prohibits the government from condemning property from one private party on behalf of another private party....
). The Arizona initiative's proponents focused their arguments almost exclusively on the less controversial eminent domain portion of the initiative.
The Nevada initiative also combined the two issues. The regulatory taking portions of Nevada's initiative (i.e., those most similar to Oregon's Measure 37) were removed by the state Supreme Court, and voters approved the remaining restrictions on eminent domain. The Nevada initiative will be reviewed in the next election.
This surge in related initiatives reflects the rising influence of political activists who coordinate the production and advocacy of state ballot initiatives on a national level. Many of the ballot initiatives in the following table (in numerous states) have been financed by New York libertarian Howie Rich and groups he is involved with, most notably Americans for Limited Government
Americans for Limited Government
Americans for Limited Government describes itself as a non-partisan, nationwide network committed to advancing free-market reforms, private property rights and core American liberties...
.
2006 initiatives restricting regulation of land use and condemnation:
| state | measure title | passed? | incl. eminent domain component? |
|---|---|---|---|
| Arizona | Prop. 207 | passed | yes |
| California | Prop. 90 California Proposition 90 (2006) California Proposition 90 was a 2006 ballot initiative in the state of California, United States. Passing of the initiative would have made two changes to California law:... |
defeated | yes |
| Idaho | Prop 2 Idaho Proposition 2, 2006 Idaho Proposition 2 was a 2006 ballot initiative in the state of Idaho, U.S.A. that aimed to force government to reimburse property owners whose property value is decreased as a result of government regulation.... |
defeated | yes |
| Montana | Init. 154 | invalidated by court | yes |
| Nevada | State Ques. 6 | invalidated by court | yes; that component passed |
| Washington | I-933 Initiative 933 Ballot Initiative 933 was a ballot initiative in the U.S. state of Washington in 2006. It concerned land use planning, and was voted down by 59% in the 2006 elections.... |
defeated | no |
Legislative text
The following are the first three sections of the law; for a complete version, see Oregon State Land Use site.- 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.
- 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.
- Subsection (1) of this act shall not apply to land use regulations:
- 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;
- 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;
- To the extent the land use regulation is required to comply with federal law;
- 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
- 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.
Support for Measure 37
Supporters argue that Measure 37 provided protection of 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, presumably because environmental and other land use regulations would impact them most directly.Measure 37's sponsor, Oregonians In Action
Oregonians In Action
Oregonians in Action is an organization in Oregon, United States that seeks to reduce land use regulation. There are four legal entities that have used this name, but the one that is most active as of 2006 is the political action committee. Its committee number is 2793...
, and various supporters drummed up support during the 2004 election using the case of Dorothy English, a then-92-year-old woman, as a cause célèbre
Cause célèbre
A is an issue or incident arousing widespread controversy, outside campaigning and heated public debate. The term is particularly used in connection with celebrated legal cases. It is a French phrase in common English use...
. Enacted zoning regulations prevented English from dividing her land into pieces that could go to each of her children.
Opposition to Measure 37
The following are major arguments 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
- Meausre 37 undermined the property rights of neighbors. Owners who purchased homes in areas zoned single family residential, or wineries in areas zoned exclusively agriculatural, lost the value of their property as Measure 37 claimants were authorized to build large subdivisions, gravel mines, and hotels next to their land.
- 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. In fact, to date existing land use restrictions have been waived in every claim filed under Measure 37.
- Questionable legality. Rulings by The Supreme CourtSupreme Court of the United StatesThe Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
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"Kelo v. City of New LondonKelo v. City of New London, 545 U.S. 469 was a case decided by the Supreme Court of the United States involving the use of eminent domain to transfer land from one private owner to another to further economic development...
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 amendmentFifth Amendment to the United States ConstitutionThe Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
, ought to be allowed as a reasonable expression of the public good.
- As more claims are being filed, many voters are feeling the impact of unregulated development.
- 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.
- The legislation is incomplete, in that it fails to dictate a method for determining property value when a claim is filed or evaluated.
- The legislation is deceptive, in that it coerces governments into altering land use laws without debating them on their merits.
- The campaign for the ballot measure was deceptive, claiming that the law would apply mainly to private property owners (like spokeswoman Dorothy English), when in fact the majority of claims have come from large-scale developers. One of the earliest large claims was brought by a timber company from another state.
Impact
As of March 12, 2007, 7,562 Measure 37 claims for compliance payments or land use waivers had been filed spanning 750898 acres (3,038.8 km²) statewide in Oregon.The claims filed included 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 were waived in every case but one.
Claims filed in Portland, Oregon
Portland, Oregon
Portland is a city located in the Pacific Northwest, near the confluence of the Willamette and Columbia rivers in the U.S. state of Oregon. As of the 2010 Census, it had a population of 583,776, making it the 29th most populous city in the United States...
, by December 4, 2006, totalled over $250 million. Many of these claims were filed by major area land developers.
Outside of Oregon, some contend that Measure 37 may have decreased support for national anti-urban sprawl
Urban sprawl
Urban sprawl, also known as suburban sprawl, is a multifaceted concept, which includes the spreading outwards of a city and its suburbs to its outskirts to low-density and auto-dependent development on rural land, high segregation of uses Urban sprawl, also known as suburban sprawl, is a...
legislation.
Specific cases
The owners of Schreiner's Iris Gardens filed a claim in late 2006, demanding either $9.5 million or the right to subdivide their 400 acres (1.6 km²). They assert that they have no intention of changing the use of the property, but want to keep options open for the future.John Benton, a Hood River County fruit farmer, filed a Measure 37 claim, demanding either $57 million or the right to build 800 houses on his 210 acre (0.8498406 km²) of property. Neighboring farmers objected, due to the significant impact they anticipated such a change would bring to their community.
In the fall of 2006, the Palins, a Prineville couple, filed a Measure 37 claim, demanding either $200,000 or the right to develop their property, which is on a scenic portion of rimrock clearly visible from the city. The city did its own appraisal of the property's potential value, and offered $47,000. This was the first case where the government offered money instead of a waiver of land use restrictions, and highlights the Measure's lack of a clear process for determining the value associated with a claim.
In a January 15, 2007 article, a statewide newspaper highlighted a Measure 37-based claim in Hood River County, in which land owners aim to develop a parcel of rural land eight times the size of the city of Hood River
Hood River, Oregon
The city of Hood River is the seat of Hood River County, Oregon, United States. It is a port on the Columbia River, and is named for the nearby Hood River. As of the 2000 census, the city population was 5,831...
:
Measure 49
In 2007, the Oregon legislature placed Measure 49 on the November 6, 2007 special electionOregon's statewide elections, 2007
The November 6, 2007, Special Election, was an off-year election in which no members of the Congress, statewide offices, or members of the Oregon Legislative Assembly were scheduled for election. However, two statewide measures were referred by the legislature to the 2007 November Special Election...
ballot. It passed with 62% in favor.
The measure overturns and modifies many of the provisions of Measure 37. The Legislature stated that it would restrict the damaging effects of Measure 37 by limiting some of the development that measure permitted.
A record 117 paid arguments on Measure 49 appeared in the voter's pamphlet for that election, most favoring it.
Measure 49 passed by an even greater margin than Measure 37 had. The impact of the law is as follows. The measure no longer authorizes challenges to restrictions on industrial or commercial uses of property. In addition, claimants must prove their losses by presenting appraisals of the property one year before and one year after the enactment of the regulation. For land use restrictions enacted before 2007, the restriction may only be waived to permit the claimant to build one to three homes on their land, or up to 10 homes if the property is not high value agricultural land and they can show that the waiver is necessary to restore the appraised value of the property.
See also
- 1000 Friends of Oregon1000 Friends of Oregon1000 Friends of Oregon is a private, non-profit 501 organization that advocates for sustainable communities, protection of farmland and forests, and conservation of natural areas and resources in the U.S. state of Oregon with a focus on land use laws...
- List of Oregon ballot measures
- Land use in OregonLand use in OregonLand use in Oregon are the evolving laws affecting land ownership and its restrictions in the U.S. state of Oregon.- Timeline :* 1822: Henry Schenck Tanner's map of the U.S...
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 http://www.oregon.gov/LCD/MEASURE37/legal_information.shtml#Information_About_the_Election
- Portland State University project measuring the impact of Measure 37, including searchable index of claims http://www.pdx.edu/ims/
- 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 Oregon1000 Friends of Oregon1000 Friends of Oregon is a private, non-profit 501 organization that advocates for sustainable communities, protection of farmland and forests, and conservation of natural areas and resources in the U.S. state of Oregon with a focus on land use laws...
Political and legal analysis
- report on the context and effects of Measure 37
- list of issues unresolved by MacPherson v. DAS