Measure 37 Upheld

Geoffrey Manne —  21 February 2006

You may or may not know that Oregon’s Measure 37 — our anti-takings measure — was ruled unconstitutional last year by a state trial court. See this post by Todd Zywicki. But today the Oregon Supreme Court reversed, and handed the effort to quash Measure 37 a resounding defeat. The court’s holding, on each of the claims raised:

In sum, we conclude that (1) plaintiffs’ claims are justiciable; (2) Measure 37 does not impede the legislative plenary power; (3) Measure 37 does not violate the equal privileges and immunities guarantee of Article I, section 20, of the Oregon Constitution; (4) Measure 37 does not violate the suspension of laws provision contained in Article I, section 22, of the Oregon Constitution; (5) Measure 37 does not violate separation of powers constraints; (6) Measure 37 does not waive impermissibly sovereign immunity; and (7) Measure 37 does not violate the Fourteenth Amendment to the United States Constitution. The trial court’s contrary conclusions under the state and federal constitutions were erroneous and must be reversed.

portland.jpgFor those who don’t know about it, Measure 37 is Oregon’s version of Richard Epstein’s classic refrain on takings: “Take and pay.” It leaves governments a choice — pay for land use planning (and Oregon has a lot of land use planning) or refrain from it. This won’t be the end of the saga, but the court’s opinion is sure a nice waypoint.

By the way — here’s the dispositive language of Measure 37. (There’s more to the measure than I’m about to quote, but this is the real meat of the measure. For the whole thing, follow the link to the court’s opinion and then scroll down to the appendix:

(1) If a public entity enacts or enforces a new land use regulation or enforces a land use regulation enacted prior to the effective date of this amendment that restricts the use of private real property or any interest therein and has the effect of reducing the fair market value of the property, or any interest therein, then the owner of the property shall be paid just compensation.

(2) Just compensation shall be equal to the reduction in the fair market value of the affected property interest resulting from enactment or enforcement of the land use regulation as of the date the owner makes written demand for compensation under this act.

Also sweetening the victory: The case was successfully argued by Lewis & Clark’s dean, Jim Huffman. Congratulations, Jim!

Geoffrey Manne


President & Founder, International Center for Law & Economics

3 responses to Measure 37 Upheld


    Can you spell phyrric victory?

    If I practiced in Oregon, it would all go to contract zoning.

    You want some public good – water extension, sewer extension, road improvement – your first going to pay the full freight based upon definable impact.

    Second, if your a land use that does not meet the communities goals, you do not get the extension.

    Do what ever you want with the land. There is no obligation of the municipality to provide service. Not much to do if you don’t have a road going to your property.

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