Taking the initiative: land use measures steal the show in upcoming ballot measures.

• Author: Bowser, Jennie Drage

It's shaping up to be a banner year for initiatives, both in terms of numbers and the issues. At press time, 74 were qualified for the ballot in the 24 states that allow them, with another three still in signature verification in Ohio. In addition, there are three popular referenda, at least 54 legislative referenda and two "other" measures that defy categorization, bringing the total number of measures on the ballot around the country to 159. The number of legislative referenda is likely to grow significantly over the next few weeks, and likely could double.

THE BIG ISSUE: LAND USE

This year's big issue doesn't have the draw of 2004's bans on same-sex marriage but is controversial nonetheless. Land use, a real snoozer on the surface, is causing heated battles, particularly in the West. Fifteen states will vote on land use measures this year.

The measures generally come in two flavors: eminent domain or regulatory takings. In four states (Arizona, California, Idaho, Montana), both flavors are twisted into a single initiative. In the three (all but Idaho) that require single subject initiatives, it is possible these measures will run afoul of the law. Nevada's initiative already faced such a challenge and the regulatory takings provisions were removed from the measure by the court, leaving only the eminent domain section on the ballot.

The eminent domain measures are a direct response to the U.S. Supreme Court's 2005 Kelo v. New London decision, and tend to be less controversial than the regulatory takings measures. Six of the eight statewide questions addressing eminent domain were referred by legislatures. Oregon's comes from citizens as does North Dakota's.

The regulatory takings measures are modeled on a successful Oregon initiative from 2004. Measure 37 required governments to compensate property owners when land use regulations reduced the value of a property. The price tag for this measure was potentially astronomical, and in all cases so far in Oregon, governments have taken the path of waiving zoning codes and other regulations rather than paying up. Five states are considering such measures this year--the four previously listed that combine regulatory takings with eminent domain in a single initiative, and Washington.

A FLASH BACK

The dramatic increase in the number of initiatives appearing on statewide ballots in the 1990s was due in large part to the success of movements to limit the terms of lawmakers and cap state taxes and...