The property-rights movement’s latest star has fallen. On Oct. 14, a judge ruled that Oregon’s Measure 37, passed by voters last year, was unconstitutional. The measure allowed landowners who believed they’d lost property value due to land-use regulations to demand that state or local governments either pay compensation or waive those regulations (HCN, 6/13/05: So far, Oregon land-use measure is more bark than bite).

Oregon’s land-use regulations, which include strict protections for farm and forest lands and use "urban growth boundaries" to contain sprawl, have long been a target for property-rights boosters. A 2002 constitutional amendment similar to Measure 37 was thrown out by the courts, but proponents thought 37 was bulletproof.

Marion County Judge Mary James disagreed, ruling that the measure violated both state and federal constitutions. "Measure 37 requires the government to pay if it wants to enforce valid, previously enacted, land use regulations, i.e., it must pay to govern. This the legislative body cannot do," she wrote. She also said that 37 violated separation of powers requirements, and applied unequally to property owners, because it applied only to people who already owned their land when the regulations went into effect.

If it stands, the decision will block about 2,500 applications statewide for payments or rule waivers. County and local governments have reacted in varying ways. Some counties, including Hood River and Yamhill, have continued to process claims, while others, including Clackamas, Jackson and Malheur, have halted Measure 37 activity.

Oregonians in Action, a pro-37 group that has appealed James’ ruling, denounced it as "judicial activism." "The theories used to invalidate the measure are novel, to put it bluntly," says the group’s legal director, Ross Day.