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.
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.