Property pieces in compensation statutes: law's eulogy for Oregon's measure 37.

AuthorHirokawa, Keith H.
  1. INTRODUCTION II. UNDERSTANDING OREGON'S MEASURE 37 AS RIGHTS WITHOUT PROPERTY A. The Text of Measure 37 B. Understanding the Measure Through the Doctrine of Capture: Excusing a Claimant From Earning a Property Expectation C. Understanding the Measure as Piecing Out Property Duties III. LAND USE CONTROLS: EUCLIDEAN ZONING, SMART GROWTH PLANNING, AND THE ROLE OF PROPERTY DUTIES IN A PROPERTY SYSTEM A. Euclidean Zoning as Providing the Average Reciprocity of Advantage B. Smart Growth and Property Value C. Property Pieces in a System of Property Use IV. CONCLUSION It is not enough for the knight of romance that you agree that his lady is a very nice girl--if you do not admit that she is the best that God ever made or will make, you must fight. There is in all men a demand for the superlative, so much that the poor devil who has no other way of reaching it attains it by getting drunk. (1)


    Outside of law, what we mean when we use the term "property" is by no means self-evident (and may not become altogether clear on closer examination, either). (2) For instance, even in our most unsophisticated explanations, we must admit that the pre-social world may be comprised of things, ideas, and processes, yet it is not comprised of "property." (3) For purposes of this Article, it might suffice to say that property begins as an economic, instrumental, social, or personal construct, and becomes (if at all) a legal label to delineate a hegemony of rights among competing values and expectations. As the particular social values at issue undergo change, and as compromise in the competition shifts, "property" ultimately acquires meaning by attaching legal protection to such values. Although we need not go so far as Bentham's epitaph for property without law, (4) his point is a good one: the meaning of property is contextual, (5) and law plays a special role in determining the confines of property's context.

    In an important sense, this is just an acknowledgment that each perspective on property is fundamentally a socially contingent construction competing for legitimacy in law. There are many such constructions, of course, spanning across great divides in process and foundation, each vying to find their own reflection in the bundle of rights (6) that comprises property. Yet, underlying each is the problem that, if we do not accept the circumstance of contingency, then according to Holmes, we must fight (or drink); (7) if we accept the contingency of property, then property jurisprudence essentially becomes a question of persuasion. Consistent with the contingency backdrop, we might surmise that property rights come to rest on the theory best able to hide the non sequitur and keep the bundle as coherent as possible.

    Assuming the foregoing, the dilemma for law may be less the project of insuring the metaphysically right answers, and more the difficulty of avoiding constructions of property which cannot be adopted into law without causing too much unintentional damage to other rights, (8) whether they be property, personhood, equality, or even the freedoms on which such expectations rely. Such constructions understandably but characteristically ignore otherwise important values (such as social and other costs accounted for in existing regimes), in large part because the foundations of the offered perspective preclude recognition of the consequences as costs. Due to the pervasiveness of property rights in the legal system, (9) the lesson from coherence should be an important consideration in matters of takings jurisprudence (just as it should be to anyone dealing with rights in property at some level of their program) where a failure to recognize the codependency of property and the system supporting property rights can cause more than the desired disruption. (10)

    One recent development in property law--one which challenges the meaning of "property"--is the emergence of "compensation legislation." (11) In a sense, compensation statutes appear as mere statutory embodiments of regulatory takings jurisprudence, preserving the property owner's right to compensation against regulations which "go too far" in restricting the rights of owners to use their property. (12) However, compensation statutes diverge from takings jurisprudence in at least two important ways. The first explains the very existence of compensation legislation: takings jurisprudence has not provided categorical protection against land use regulations which only restrict development of property portions, (13) timing of development, (14) vertical development rights, (15) or, more generally, the uninhibited use of property "as the owner sees fit." (16) Compensation statutes typically provide (in varying degrees) categorical protection for these pieces of property. (17)

    The second, perhaps deeper, distinction between compensation legislation and takings jurisprudence appears as a difference in the construction of property itself. Under the Takings Clause, property rights in property uses result from a (sometimes intricate) calculus designed to benefit an owner with a protectable interest which does not, in its exercise, cause damage to the public health, safety, and welfare. (18) In contrast, compensation statutes allow property owners to build conceptual fences to match their physical ones, and the rights in compensation statutes typically extend to any hypothetical free use of property. (19) Yet, by freeing individual property owners from the antecedent needs of the property system supporting the rights in property uses, compensation statutes eviscerate the limitations inherent in a property right. (20) It is this latter divergence from takings jurisprudence--a divergence from property--that is examined in this Article.

    To introduce the discussion, this Article focuses on Oregon's Ballot Measure 37 (Measure 37), (21) adopted into Oregon law in 2004 by an initiative election (22) as a call for fairness, justice, and protection from governmental abuses, then challenged on much the same grounds. (23) Although not the first, (24) Measure 37 was a far reaching example of compensation legislation by defining taking to include any negative effect on property value traceable to a regulatory restriction. (25) Couched in terms of "rights" and "fairness," the Measure was deceptively (26) simple: governments may either waive land use regulations for particular property owners or compensate the owners for damages to their property values. (27)

    In fact, Measure 37 enjoyed a short life. A public reaction to the Measure led to Oregon's Measure 49, approved by the voters in 2007 to make substantial amendments to the scheme. (28) Yet, it is not the intention of this Article to dive too deeply into the political circumstances of Measure 37's demise, or to provide an analysis of its successor. Rather, this Article looks to the Measure 37 experience to understand why we might view compensation statutes as problematic: given the pervasiveness of property throughout the American legal system, the Measure 37 vision of property use could not be neatly incorporated into the legal system, and as a result, it is simply an enlightening example of law drafted without consideration for its ramifications in both the legal and rhetorical structures of property.

    To understand the relationship between Measure 37 and property, this Article first glances at the text and operation of the Measure in Part II, contrasting the vision of property use offered in Measure 37 with the character of property use that is otherwise protected as a property right. It may be notable to state, at the outset, that Measure 37 was at least partially successful (if not more) in accomplishing the stated goals of its proponents. Part III of this Article then examines the impacts of the Measure against the intent of zoning and growth management programs, with particular attention given to the relationship between individual property rights and the reciprocal advantages protected in the existing property regime. The analysis presented in this Article suggests that whatever the aims of Measure 37, its design was unfortunate: first, Measure 37 restructured property, extracting property duties from the bundle of rights; and second, because property duties generally correlate to the property rights of others, the restructuring reallocated property pieces among competing claims in some surprising ways. This Article concludes that although Measure 37 may have accomplished the goal of providing its beneficiaries with a stronger property right than what was previously protected by the regulatory takings doctrine, the manner in which this right was obtained resulted in a series of anomalies in the meaning of "property" throughout the legal system.


    If the only apparent defect in property absolutism has been a lack of legal support, it would nonetheless qualify as a "hardy perennial."(29) In Blackstone's oft-quoted words, "It]here is nothing which so generally strikes the imagination and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe." (30) Although property absolutism is often condemned as incoherent, asocial, and "both dangerous and mythical," (31) its claims in compensation legislation are premised not on property rights, but instead on "a loftier, more peremptory ground ... of constitutional morality and obligation." (32)

    Oregon's Measure 37 incorporated this sense of property absolutism in its blatant and, in a sense, well-designed attack on the alleged unfairness of land use regulations. Against the Court's effort to keep the bundle of rights intact, Measure 37 allocated different bundles, or perhaps different sticks, to different property owners. (33)...

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