A Failure of Fairness? the Property Rights Movement Is Reborn at the Ballot Box

By Carson, Richard | Public Management, October 2006 | Go to article overview

A Failure of Fairness? the Property Rights Movement Is Reborn at the Ballot Box


Carson, Richard, Public Management


Every once in a while a state voter initiative catches people's attention, and it takes the center stage nationally. Examples include creating term limits, setting property tax caps, and banning same-sex marriages. The next big trend is all about property rights, and it is well under way in 23 states.

This national movement about citizens' property rights is driven by two events. The first was the passage in Oregon in November 2004 of a property rights initiative called Ballot Measure 37. The second was the June 2005 U.S. Supreme Court decision, Kelo v. City of New London.

The American Planning Association says, "Radical property rights organizations have seized on the passage of Measure 37 to promote similar ballot measures in other states." These voter initiatives are described by opponents as the most draconian property compensation laws in the United States.

On the other side, proponents love measure 37 because it has brought new life to the property rights movement. Property rights initiatives have one thing in common: they exceed previous U.S. Supreme Court rulings in terms of what constitutes a property taking. In addition, they present the prospect of unraveling local and state laws regarding the environment and land use.

EARLIER CASE LAW AND LEGISLATION

The Fifth Amendment to the U.S. Constitution protects a private landowner from the government "taking" of property without fair compensation, and the case law on compensation for government takings has been widely accepted for more than 70 years.

In the late 1800s, the U.S. Supreme Court ruled in several cases (Mugler v. Kansas and Lawton v. Steet) that in order for a landowner to get compensation, the land use regulations must be so restrictive as to completely deprive the landowner of the land's economic value. In other words, the government has had to compensate landowners for taking all the land's value, but it has not needed to compensate landowners for partial takings.

Some states--Louisiana, Texas, Mississippi, and Florida--have passed laws regulating compensation for partial property takings. The first three states essentially created partial takings thresholds at which a government must pay compensation. The thresholds are 20 percent for Louisiana, 25 percent for Texas, and 40 percent for Mississippi.

The Harris Act, passed in Florida in 1995, went farther than the laws in Louisiana, Texas, and Mississippi and was the first real precursor to the Oregon voter initiative. The act affords landowners the right to sue local governments should their property value be "inordinately burdened" or "restricted" by government regulations. It also applies only to government regulation that happened after the act was implemented. Many of the property rights initiatives passed since the Harris Act go further in that they are retroactive.

OREGON LEADS THE WAY--FOR AND AGAINST

It is ironic that the state where the property rights movement has now been reborn is Oregon. In the early 1970s, the state of Oregon legislated state-mandated land use planning, which was touted as cutting-edge public policy and hailed by some as a grand experiment in land use planning.

In 1973, a bipartisan Oregon legislature and a progressive Republican governor named Tom McCall approved the first statewide land use planning program in the nation. The program required the use of comprehensive plans and urban growth boundaries, all in the name of saving farms and forests. For more than a quarter century, Oregon has received much national media attention for its innovative land use planning program.

On November 2, 2004, however, the very citizens who were purportedly served by this vaunted planning program permanently crippled and politically rejected the program with the passage of Ballot Measure 37. After 30 years, and by a decisive 61 percent to 39 percent margin, the voters essentially terminated the grand experiment by passing the severest property compensation law in the United States. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

A Failure of Fairness? the Property Rights Movement Is Reborn at the Ballot Box
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.