Chapter §15.16 TAKINGS INITIATIVES

• Jurisdiction: Oregon

§15.16 TAKINGS INITIATIVES

In recent years, the voters have considered and passed initiatives requiring compensation for what would otherwise be noncompensable regulatory effects on real property. The first, Measure 7, was a constitutional amendment. See § 15.16-1. The later statutory initiatives have given rise to multiple constitutional challenges informing Article I, section 18, jurisprudence. See §§ 15.16-2 to 15.16-3(d).

§15.16-1 Measure 7 (2000)

Measure 7, on the ballot in 2000, would have amended Article I, section 18, of the Oregon Constitution to require governments to compensate private real property owners for the cost of "restrict[ive]" regulations that reduce the value of their real property. League of Oregon Cities v. State, 334 Or 645, 649, 56 P3d 892 (2002). Measure 7 did not go into effect, however, because the Marion County Circuit Court held that it had been enacted in violation of the separate-vote requirement of Article XVII, section 1, of the Oregon Constitution. The Oregon Supreme Court affirmed. League of Oregon Cities, 334 Or at 673-76.

§15.16-2 Measure 37 (2004)

In 2004, the people approved Measure 37 (Or Laws 2005, ch 1, codified at former ORS 197.352), which required state and local governments to compensate private property owners for the reduction in the fair market value of their real property resulting from land use regulations restricting the use of their property. See generally State ex rel. English ex rel. Sellers v. Multnomah Cnty., 348 Or 417, 420-22, 238 P3d 980 (2010) (describing Measure 37); MacPherson v. Dep't of Admin. Servs., 340 Or 117, 121-22, 130 P3d 308 (2006) (same). Under Measure 37, governments had the option to "modify, remove, or not apply" the regulation in lieu of compensation. Former ORS 197.352(10). Such government decisions became known colloquially as "waivers." The initiative did not amend the constitution.

In MacPherson, the Oregon Supreme Court addressed multiple constitutional challenges to Measure 37, and in so doing, addressed constitutional limitations on the legislative power to regulate land use, finding that the plaintiffs had identified no implicit limitation on the legislative power to regulate land use. Accordingly, the court reversed the trial court's determination that Measure 37 impermissibly limited the government's exercise of plenary power to regulate land use in Oregon. The court held that "[n]othing in Measure 37 forbids the Legislative Assembly or the people from enacting new...