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

• Author: Curtiss, Heath
• Position: SYMPOSIUM

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...