A backlash among voters this November against an unpopular
Supreme Court decision on eminent domain could dramatically curtail
the ability of officials to manage growth and development in parts
of the western United States.
Libertarian activists, tapping into voter anger as well as
outside money, have helped propel property rights referendums onto
12 state ballots - making it the single biggest ballot issue this
Most of the measures aim to overrule a 2005 US Supreme Court
decision that homes can be seized and handed over to private
developers. But in some Western states, the eminent domain issue is
coupled with other far reaching provisions that would force
governments to pay landowners when regulations harm property values.
At stake is the momentum of "smart growth" planning in recent
decades that has provided public interests like open space and
environmental protection at the expense of private property owners.
Supporters of the changes say they want those costs made
transparent, while opponents argue that individual property rights,
if unfettered, will trample on the rights of neighbors and the
"Urban growth boundaries, agricultural protection ordinances,
wetlands regulations, historic district rules - just about any kind
of land-use rule would be more vulnerable to litigation if the
[regulatory takings] measures were adopted," says John Echeverria,
executive director of the Georgetown Environmental Law and Policy
Institute in Washington. "[The West] would be a lot more polluted,
it would be a lot more congested, and it would be a lot less green
if these measures were enacted."
Prior to the high court's decision on eminent domain in Kelo v.
New London last year, Oregon, in 2004, enacted Measure 37, a law
requiring local and state governments to compensate landowners when
regulations decreased the value of their properties. Ballot
initiatives in California, Arizona, Idaho, and Washington are
loosely based on Measure 37. If governments cannot pay, some
measures call for granting individuals exemptions from the rules.
In Oregon, the 2,446 claims already filed with the state would
cost more than $5.7 billion to reimburse, according to the
Department of Land Conservation and Development. None have been
paid, says Michael Morrissey with the department. "Measure 37 didn't
identify any new revenue source to pay for claims. So that means for
those claims we judge to be valid, the issue is only waiver of
Such waivers have created some unusual dilemmas.
In Clackamas County, a landowner used Measure 37 to get a waiver
for agricultural zoning restrictions that prevented a commercial
gravel pit operation. One neighbor suddenly faced the prospect of a
rock crusher just a few hundred feet from his home.
Another neighbor, an elderly couple trying to sell their adjacent
farm, saw a $1.3 million offer collapse on account of the proposed
pit, says their son, Scott Lay. He had voted for Measure 37, but now
finds himself ambivalent. He warns voters in other states to "really
consider how far that measure could extend into the property rights
of the neighbor. …