Ballot Measure 37: the redrafting of Oregon's landscape.

In November of 2004, Oregon voters enacted Ballot Measure 37. The ballot title captures Measure 37's essence: "Governments must pay owners, or forgo enforcement, when certain land use restrictions reduce property value." (1) Although clear on its face, Measure 37 paints in broad strokes and leaves the details to those chasing and those fleeing the measure's promises. Because the stakes are high, the measure's ambiguity has fueled a firestorm of controversy and litigation.

Less than three months after voters enacted the measure, land-planning advocates initiated legal challenges. In October of 2005, the Marion County Circuit Court ruled that Measure 37 violated both the United States and Oregon constitutions. (2) The Oregon Supreme Court granted expedited review shortly thereafter and heard oral arguments in January of 2006. It ruled six weeks later in a sweeping, unanimous decision that rescurrected Measure 37 and reinvigorated a host of unanswered questions.

Environmental Law devotes this issue to an informed analysis of those questions, including the measure's constitutional underpinnings and the challenges in its implementation. Professor Eric Freyfogle leads by grappling with the abstract nature of property rights and the broad spectrum of ownership interests that exist somewhere between private and public. David Hunnicutt, President of Oregonians in Action, outlines the history of landuse regulation in Oregon and characterizes Measure 37 as a backlash to over-burdensome state regulation of private property. In stark contrast, Caroline MacLaren, staff attorney with 1000 Friends of Oregon, contends that Measure 37 threatens to unravel Oregon's system of land-use planning and its successes over the last thirty years. Ms. MacLaren advocates for fairness, equity, and a return to consensus in regulating property use in Oregon. Steven Gieseler, Timothy Sandefur, and Leslie Lewallen, staff attorneys with the Pacific Legal Foundation, argue that Measure 37 is a necessary response to the federal judiciary's lackluster application of the regulatory takings doctrine and that the measure is sound public policy. Dr. William Jaeger, professor of Agricultural and Resource Economics at Oregon State University, asserts that land-use regulation affects property values in myriad and complex ways. He stresses that true property value should not be confused with the value of individual exemptions, which Dr. Jaeger argues is valuable only because of the existence of state regulations. Tim Bernasek, general counsel with the Oregon Farm Bureau, highlights the importance of land-use planning to the agricultural industry, a vital part of Oregon's economy. Finally, Professor Edward Sullivan, Robert Liberty, Metro Councilor, and Jona Maukonen, associate with Harrang Long Gary Rudnick P.C., round out the issue with essays illuminating a number of practical hurdles yet to be considered by the courts. Some of these hurdles include waiver transferability, producing tax revenues to satisfy compensation claims, and securing financing with only tenuous Measure 37 rights.

This issue went to press hours after the Oregon Supreme Court's decision to resurrect Measure 37. Although that decision answered Oregon's biggest land-use law question, many unresolved issues remain that are critical to the national debate surrounding land-use regulation. It is our hope that this issue of Environmental Law will contribute to that discussion.

BALLOT MEASURE 37

The following provisions are added to and made a part of ORS chapter 197:

(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.

(4) Just compensation under subsection (1) of this act shall be due the owner of the property if the land use regulation continues to be enforced against the property 180 days after the owner of the property makes written demand for compensation under this section to the public entity enacting or enforcing the land use regulation.

(5) For claims arising from land use regulations enacted prior to the effective date of this act, written demand for compensation under subsection (4) shall be made within two years of the effective date of this act, or the date the public entity applies the land use regulation as an approval criteria to an application submitted by the owner of the property, whichever is later. For claims arising from land use regulations enacted after the effective date of this act, written demand for compensation under subsection (4) shall be made within two years of the enactment of the land use regulation, or the date the owner of the property submits a land use application in which the land use regulation is an approval criteria, whichever is later.

(6) If a land use regulation continues to apply to the subject property more than 180 days after the present owner of the property has made written demand for compensation under this act, the present owner of the property, or any interest therein, shall have a cause of action for compensation under this act in the circuit court in which the real property is located, and the present owner of the real property shall be entitled to reasonable attorney fees, expenses, costs, and other disbursements reason-ably incurred to collect the compensation.

(7) A metropolitan service district, city, or county, or state agency may adopt or apply procedures for the processing of claims under this act, but in no event shall these procedures act as a prerequisite to the filing of a compensation claim under subsection (6) of this act, nor shall the failure of an owner of property to file an application for a land use permit with the local government serve as grounds for dismissal, abatement, or delay of a compensation claim under subsection (6) of this act.

(8) Notwithstanding any other state statute or the availability of funds under subsection (10) of this act, in lieu of payment of just compensation under this act, the governing body responsible for enacting the land use regulation may modify, remove, or not to apply the land use regulation or land use regulations to allow the owner to use the property for a use permitted at the time the owner acquired the property.

(9) A decision by a governing body under this act shall not be considered a land use decision as defined in ORS 197.015(10).

(10) Claims made under this section shall be paid from funds, if any, specifically allocated by the legislature, city, county, or metropolitan service district for payment of claims under this act. Notwithstanding the availability of funds under this subsection, a metropolitan service district, city, county, or state agency shall have discretion to use available funds to pay claims or to modify, remove, or not apply a land use regulation or land use regulations pursuant to subsection (6) of this act. If a claim has not been paid within two years from the date on which it accrues, the owner shall be allowed to use the property as permitted at the time the owner acquired the property.

(11) Definitions--for purposes of this section:

(A) "Family member" shall include the wife, husband, son, daughter, mother, father, brother, brother-in-law, sister, sister-in-law, son-in-law, daughter-in-law, mother-in-law, father-in-law, aunt, uncle, niece, nephew, stepparent, stepchild, grandparent, or grandchild of the owner of the property, an estate of any of the foregoing family members, or a legal entity owned by any one or combination of these family members or the owner of the property.

(B) "Land use regulation" shall include:

(i) Any statute regulating the use of land or any interest therein;

(ii) Administrative rules and goals of the Land Conservation and Development Commission;

(iii) Local government comprehensive plans, zoning ordinances, land division ordinances, and transportation ordinances;

(iv) Metropolitan service district regional framework plans, functional plans, planning goals and objectives; and

(v) Statutes and administrative rules regulating farming and forest practices.

(C) "Owner" is the present owner of the property, or any interest therein.

(D) "Public entity" shall include the state, a metropolitan service district, a city, or a county.

(12) The remedy created by this act is in addition to any other remedy under the Oregon or United States Constitutions, and is not intended to modify or replace any other remedy.

(13) If any portion or portions of this act are declared invalid by a court of competent jurisdiction, the remaining portions of this act shall remain in full force and effect.

Heath Curtiss

Editor in Chief

Maja K. Haium

Articles Editor

Alexander Hays V (Ti)

Articles Editor

(1) Ballot Measure 37, in 1 VOTERS' PAMPHLET 103 (Office of Or. Sec'y of State ed., 2004), available at http://www.sos.state.or.us/elections/nov22004/guide/pdf/vpvoll.pdf

(2) MacPherson v. Dep't of Admin. Servs., No. 05C10444, slip op. at 14 (Marion County, Or. Cir. Ct. Oct. 14, 2005).