'04 law was 3 decades in making
Source: StatesmanJournal.com, by Peter Wong
October 21, 2007
To its supporters, Measure 37 was unfinished business from three decades earlier, when Oregon put most rural land off-limits to development.
As the 1973 Legislature declared its intent to protect rural land for farming and forestry, lawmakers also set in motion a study about how some rural landowners might be compensated for losses in property values.
"They argued about how they were going to pay for it, and they couldn't come up with a decision about how to compensate people," said Wayne Simmons, whose Orchard Crest Farms sits atop West Salem's Eola Hills. "That's what eventually triggered Measure 37."
To Measure 37 opponents, who grew even more vocal after its passage, Measure 37 went a lot further than advertised during the campaign.
Oregon's Measure 37, which voters approved with a 61 percent majority in 2004, is the broadest law of its kind in the nation. Simply put, it required government to pay landowners, or forgo enforcement, when land-use regulations enacted after they acquired their land resulted in reduced property values. This generally applied to restrictions resulting from the 1973 law, the statewide planning standards and the local land-use plans and rules that followed.
There are exceptions. Among them are land-use regulations required to comply with federal law and with "public health and safety."
Most land outside urban growth boundaries is zoned for farm and forest uses, excluding the half of Oregon overseen by federal agencies. Thousands of acres are zoned for rural residential, commercial and industrial uses.
Federal and state constitutions already require governments to pay landowners "just compensation" when private property is taken for a public use, such as a road or a building.
Rules vs. 'takings'
The debate about Measure 37 centers on what critics call "regulatory takings," under which landowners retain some but not all economic use of their property as a result of government regulations.
Most zoning regulations do restrict land uses, but courts have upheld regulation generally as a reasonable exercise of government authority to protect the public. Courts have not been precise about when regulations amount to "takings," but the Oregon Supreme Court in 2005 rejected a timber company's claim to compensation based on a state decision to bar logging on part of a 40-acre parcel for environmental reasons.
"These issues have a life cycle to them," said John Echeverria, executive director of the Environmental Law and Policy Institute at Georgetown University Law Center, which has tracked the issue.
"I think debates about property are endemic to American culture; they have been going on for centuries."
Although lawmakers never approved direct compensation, during the 1973 session that enacted Oregon's land-use planning law, they passed a companion bill that linked special property-tax status for farm land with farm zoning.
The bill's floor manager was then-Sen. Vic Atiyeh, who went on in 1978 to two terms as governor. A similar tax law for forest lands was approved two years later.
"We farmers cannot afford development prices," said Tom Brawley, a farmer near Jefferson. "As these lands become available for development, we are going to lose them and Oregonians' ability to produce food."
In the next three decades, the tax break gave $4.9 billion in relief for rural landowners, according to a study released by the American Land Institute earlier this year.
A study this year by Oregon State University concluded that based on comparisons of selected Oregon and Washington counties, Oregon's land-use laws had no adverse effects on the value of farm land and that tax laws had positive effects.
But Bill Moshofsky, a longtime critic of land-use regulation who speaks for the property-rights group Oregonians in Action, said he considers neither farm nor forest tax breaks as compensation.
"They were simply recognizing that when government reduces the uses you can make of your land, you should be taxed accordingly," said Moshofsky, a former vice president of Georgia-Pacific Corp.
Earlier tries failed
Oregon's Measure 37 was not the first of its kind, not even the first in Oregon.
The 1995 Legislature, with its first Republican majorities in both chambers in 40 years, passed a requirement for compensation of landowners if new regulations resulted in reduced property values of at least 10 percent. But Democratic Gov. John Kitzhaber vetoed the bill.
A similar bill passed the U.S. House in 1995, but died in the U.S. Senate.
Four states had property-compensation laws on their books before Oregon voters approved a measure in 2000 similar to Measure 37.
Echeverria said the laws in Louisiana and Mississippi are limited in scope, the law in Texas has many exceptions and lawsuits are difficult to file under it, and the law in Florida applied only to future restrictions.
"The effect in Florida has been to put a freeze on any changes in planning and zoning regulations," he said.
Oregon voters in 2000 approved Measure 7, which was similar to Measure 37, but was in the form of a constitutional amendment. It never took effect because opponents asserted that the measure contained unrelated changes to the Oregon Constitution. The Supreme Court ruled in 2002 that it violated the Constitution's ban on multiple amendments in a single measure, although it did not rule on its merits.
An attempt to negotiate a compromise failed in the 2001 Legislature after Oregonians in Action, which sponsored the ballot measure, declined to sign on to it.
Measure 37 unique
When Oregonians in Action returned in 2004 with Measure 37, it differed in two ways from the 2000 proposal.
It was written as a law, which can be changed by the Legislature without another election, unlike a constitutional amendment.
It also provided specifically that government could waive enforcement of a land-use regulation as the alternative to compensation for a landowner -- a feature found in none of the other state laws.
Don Dean, who lives south of Salem, voted for it. He would regret his vote later.
"The countless radio advertisements with Dorothy English may have persuaded me," he said. "Maybe Multnomah County was trying to hoodwink her a little bit, and maybe she should be able to split up her land and put a few houses on it."
English, now 94, was the chief petitioner for Measure 37 -- and supporters focused their campaign advertising on her fight to win approval of a few lots on her land outside Portland. Earlier this year, Multnomah County commissioners approved a division of her 22 acres into eight lots.
Jeremiah Baumann, who works for Environment Oregon, said Measure 37 advocates hit a nerve with voters.
"They were tapping into some strong opinions among Oregonians that certain parts of the land-use system had become too rigid and had not allowed some smaller developments that seemed fair and reasonable to a lot of people," said Baumann, now speaking for the Measure 49 campaign. "But the problem was that Measure 37 itself was not just addressing that situation for individual landowners to build a couple of homes."
