Making Regulatory Takings Reform Work: The Lessons of Oregon's Measure 37
| Date | 01 June 2009 |
| Author |
39 ELR 10516 ENVIRONMENTAL LAW REPORTER 5-2009
Making Regulatory
Takings Reform
Work: The Lessons
of
Oregon’s
Measure 37
by Alex Potapov
Alex Potapov is law clerk to Judge Stephen F. Williams, U.S.
Court of Appeals for the District of Columbia Circuit.
Oregon’s Measure 37 was an audacious attempt to cre-
ate an expansive regulatory takings regime. Contrary to
the hopes of its supporters and the fears of its opponents,
however, it ultimately failed to provide any signicant
relief to property owners. e diculties the Measure
encountered can be traced to two primar y causes: poor
drafting and the hostile attitude of government ocials.
While these problems are likely to cause diculties for
any regulatory takings initiative, they are not necessar-
ily insurmountable. It is also possible for a regulatory
takings initiative to succeed in another way—by forc-
ing the state government to take the problem of exces-
sive regulation seriously. In this respect, Measure 37 has
arguably been a success.
I would also like to thank Judge Stephen F. Williams, as well as
“Nothing has come easy with this measure.”
—A Clackama s County planner1
In 2004, a 91-year-old woman named Dorothy English
became the face of a “property rights revolution.”2 She
was an Oregon landowner who had bought her prop-
erty in 1953.3 Now, she was hoping to divide her 20-acre lot
into eight parcels so she could give some to her children and
grandchildren and sell the rest to fund her retirement.4
Unfortunately for Ms. English, in the intervening
decades, Oregon had developed its unique and stringent sys-
tem of centralized land use regulation,5 and her property had
been rezoned to prohibit such a subdivision.6 Her situation
came to symbolize what many Oregonians perceived as the
excesses of Oregon’s land use planning. ese concerns gave
rise to Measure 37, a citizen initiative that would seriously
challenge Oregon’s approach to land use.
In broad outline, the Mea sure would require the govern-
ment to compensate a landowner if her property lost value
as a result of land use regulations enacted af ter she or a fam-
ily member acquired the property; in the alternative, the
government would be allowed to waive those regulations
that were enacted after the landowner acquired t he proper-
ty.7 is was a signicant departure from traditional takings
principles;8 no other state had such a generous compensa-
tion provision.9
Dorothy Eng lish became an eective spokeswoman for
Measure 37,10 recording a memorable radio commercial in
which she declared: “I’ve always been ghting the govern-
1. Telephone Interview with Carol Dawson, Clackamas County Planning (July
30, 2007).
2. Michael C. Blumm & Erik Grafe, -
, 85 D. U. L. R. , ().
3. L C. G, R F., S R T R-
: E O’ M O S 1 (2006).
4. Id.; Eric Mortenson, , T O-
, Dec. 25, 2007, at D1.
5. See infra Part I.A.
6. G, supra note 3, at 1.
7. Oregon Governments Must Pay Owners or Forgo Enforcement When Certain
Land Use Restrictions Reduce Property Value, Measure 37 (2004) (codied as
amended at O. R. S. §. ()).
8. Rebecca L. Puskas,
, 48 B.C. L. R. 1301, 1301-02
(2007).
9. Blumm & Grafe, supra note 2, at . Since then, Arizona has added a simi-
larly broad provision. Id.
10. Edward J. Sullivan, ,
P. E. L., March 2005, at 3, 5, available at http://www.planning.
org/PEL/commentary/pdf/Mar05.pdf (noting eectiveness of ads featuring
English).
5-2009 NEWS & ANALYSIS 39 ELR 10517
ment, and I’m not going to stop!”11 Oregon’s voters responded
to her story, and Measure 37 won an overwhelming 61% to
39% victory, carrying 35 of Oregon’s 36 counties.12
A few months a fter Measure 37 was passed, Multnomah
County granted Dorothy English the right to subdivide her
property.13 e Measure’s libertarian supporters took this to
be an indication of the Measure’s success.14 e opponents
of Measure 37, meanwhile, saw a potentially disa strous dis-
ruption to Oregon’s land use system.15 One observer sug-
gested that Measure 37 “has the potential to unravel over
thirty years of valuable planning and compromise” and
“insults the remarkable v ision demonstrated by pa st gen-
erations of Oregonia ns in their ability to look beyond their
immediate needs.”16 A pair of commentators called Measure
37 “a planner’s nightmare” that “has operated as a large-
scale deregulatory measure, repealing land use regulations
for select landowners.”17
e number and character of the Measure 37 claims led
by Oregonians seemed to vindicate the skeptics. All in all,
there were almost 7,000 Measure 37 claims, requesting a
total of $19.8 billion in compensation.18 is included a large
number of subdivision requests, and “several large claims by
timber companies.”19 Measure 37 opponents believed that
Dorothy English’s story “misled Oregonians into voting for
a law that allows dramatic development.”20 As
argued in an editorial entitled “Revealing the True Game
Behind Measure 37,” the Measure “wasn’t so much about
righting wrongs as it was about razing farms a nd forests and
enriching developers.”21 Another article in the same newspa-
per noted that “[t]he measure didn’t just help ‘little old gran-
nies.’ It also seemed to open the door to subdivisions and
shopping centers on timberland and farms....”22
11. Center for the Defense of Free Enterprise, Oregon Voters End Era of Iron-
Fisted Rules Forcing Private Owners to Bear the Cost of Public Use, http://
www.cdfe.org/oregon_property_rights.htm (last visited Mar. 9, 2008).
12. See O. S’ S, G E A V: S M-
N. (Nov. 2, 2004), available at http://www.sos.state.or.us/elections/
nov22004/abstract/m37.pdf.
13. G, supra note 3, at 31.
14. Id.
15. Margaret H. Clune,
-
tion, 38 U. L. , () (asserting that “Measure 37 threatens to
void the state’s entire land use planning system”).
16. Edward J. Sullivan, , 36 E. L. ,
().
17. Blumm & Grafe, supra note 2, at .
18. Oregon Department of Land Conservation and Development, DLCD Mea-
sure 37, Summaries of Claims (Dec. 5, 2007), http://www.lcd.state.or.us/
LCD/MEASURE37/summaries_of_claims.shtml (last visited Jan. 28, 2008).
19. Blumm & Grafe, supra note 2, at 359.
20. Laura Oppenheimer, , T O,
Feb. 2, 2007, at C1.
21. Editorial, , T O, Dec.
4, 2006, at B4.
22. Rick Bella, , T O, May
24, 2007, at 4.
After three years of legal and political conict over Measure
37,23 Oregon voters retreated from it by passing Measure 49,
which signicantly cut back on Measure 37 rights.24 Now that
the Measure 37 experiment is over, it is possible to assess its
impact and learn from its mistakes. Was it an eective guar-
antee of property rights, as its proponents claimed? Or was it a
deregulatory nightmare that paved the way for gravel pits and
massive subdivisions, as its opponents tended to believe?
Returning to the story of Dorothy English illustrates that
both of those perspectives miss the point. After the county
agreed to let her subdivide her property, it also insisted t hat
“she had to comply with modern standards regarding hillside
development, grading and erosion controls, road building,
emergency vehicle access, and other issues.”25 Attempting to
comply with the standards would “cause delays, cost English
money a nd expose her to appeals from neighbors.”26 Eng-
lish and her attorney argued that under Measure 37, she did
not have to comply with these sta ndards, because they were
enacted after she acquired the property.27 ough a judge
agreed with this argument, the case was on appeal when
Measure 49 was passed, potentially vitiating English’s Mea-
sure 37 claim.28 English was left with bitter disappointment:
“Nothing, not a thing,” she says now. “I haven’t got any-
thing, period. And I’m furious.”29
Fittingly, Dorothy English’s experience is indicative
of what happened with Measure 37 claims more broadly.
e kind of legal u ncertainty that impeded her attempt to
develop her land ensnared many others, and deterred many
more from even attempting to develop their land. e sur-
prising result—which has become common knowledge in
Oregon,30 but ha s yet to make its way into the legal litera-
ture—is that three years of the allegedly radical Measure 37
produced virtually no compensation and very little develop-
ment.31 Even if in some respects Measure 37 was a success,32
it failed to create an eective system of compensation for
regulatory takings.
23. See infra Part II.B.
24. See O. S’ S, S E A V: S M-
N. (Nov. 6, 2007), available at http://www.sos.state.or.us/elections/
nov62007/abstract/results.pdf.
25. Mortenson, supra note 4.
26. Id.
27. Id.
28. Id.
29. Id. In 2008, English died at the age of 95, without having received any relief.
Eric Mortenson, , T
O, Apr. 17, 2009, at B2. Litigation over her claims is still ongoing.
e Oregon Court of Appeals has recently ruled in favor of her estate, order-
ing Multnomah County to pay $1.15 million. Id. is ruling, however, will
probably be appealed. Id.
30. See Eric Mortenson, , T O-
, Apr. 20, 2008 (noting that “Measure 37 never brought the development
doom that opponents claimed it would”).
31. See infra Part II.
32. For example, it arguably jolted Oregon out of its land use torpor and forced
the government to consider compromise and reform. See infra Part III.B.
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