Oregon Land-Use Regulation and Ballot Measure 37: Newton's Third Law at Work

Article excerpt

I.    INTRODUCTION
II.   HISTORY OF STATEWIDE PLANNING IN OREGON
      A. Senate Bill 10
      B. Senate Bill 100
      C. The Adoption of Statewide Goals
      D. Implementation of the Goals
      E. Statutes Regulating Rural Land.
III.  THE IMPACT OF SENATE BILL 100 AND GOALS 3 AND 4 ON OREGON
      PROPERTY OWNERS
IV.   OREGON TAKINGS CLAUSE JURISPRUDENCE
      A. Oregon Constitution
      B. United States Constitution
V.    MEASURE 7 (2000)--THE VOTERS DEMAND CHANGE
VI.   MEASURE 37 (2004)--THE VOTERS SPEAK AGAIN
      A. The Campaign
      B. The Results
      C. The Measure Itself
VII.  THE FUTURE OF MEASURE 37
      A. Legislature's Plenary Power
      B. Equal Privileges and Immunities
      C. Suspension of Laws
      D. Separation of Powers
      E. Due Process
VIII. THE FUTURE OF OREGON'S LAND-USE PLANNING SYSTEM
IX.   CONCLUSION

I. INTRODUCTION

The passage of Ballot Measure 37 by Oregon voters in November 2004 has reignited the national debate over the line between the rights of individual property owners to use their property and the desire of government, sometimes with the support of the public, to regulate property uses through zoning or other means to provide benefits to the public.

For the uninitiated, Measure 37 (1) requires state and local governments in Oregon to pay just compensation to a property owner when land-use laws, enacted after the current owner or a "family member" of the current owner first acquired the property, have the effect of limiting uses on that property and lowering the property's fair market value. (2) As an alternative to compensation, the government may choose to modify, remove, or not apply the land-use law to allow the property owner to use the property in the manner in which it could have been used when it was purchased. (3)

In effect, Measure 37 is a grandfather clause, designed to secure to the owners of property in Oregon the benefit of their bargain. The measure is based on the premise that the economic costs of land-use regulations designed to benefit the public should be borne by the public as a whole, rather than an individual property owner whose land has been restricted.

No examination of Measure 37 would be complete without a basic understanding of Oregon's unique and controversial land-use system. The inequities created by Oregon's statewide, centralized planning system fueled the campaign in support of the measure and ultimately led to its passage. Although a thorough evaluation of the scope of Oregon's land-use system is beyond the limits of this essay, this essay attempts to provide sufficient background to understand what provided much of the impetus for reform behind the measure.

II. HISTORY OF STATEWIDE PLANNING IN OREGON

A. Senate Bill 10

Oregon's experiment with statewide planning began in the late 1960s. Fueled by a growing awareness of environmental issues, the legislature adopted Senate Bill 10 in 1969. (4) Senate Bill 10 required Oregon's Governor to prescribe and amend comprehensive plans and zoning ordinances for lands within cities and counties that were not subject to an existing locally adopted zoning ordinance and comprehensive plan. (5)

The Governor was further directed to consider nine broad goals in preparing and adopting comprehensive plans and zoning ordinances for unzoned lands subject to the Governor's planning control. (6) Among the goals were the preservation of air and water quality, the conservation of open space and prime farm land, and the development of timely, orderly, and efficient provision of public facilities and services. (7)

Although Senate Bill 10 authorized direct state involvement in what had previously been within the exclusive purview of Oregon cities and counties, local jurisdictions could avoid application of the law by adopting their own comprehensive plans and zoning ordinances. A local comprehensive plan and zoning ordinance was not subject to the goals contained in Senate Bill 10, and thus could be prepared and framed in whatever manner the local government determined would best fit the needs of the local community. …