Property Rights Victory in Oregon

April 2006

Property Rights Victory in Oregon

By Michael Bindas

The people of Oregon and property owners nationwide won a significant victory on February 21 when the Oregon Supreme Court upheld a ballot initiative designed to restore fairness to land use regulation.

Measure 37, which Oregonians approved in 2004, requires the government to compensate a property owner if enactment or enforcement of a land use regulation restricts the property’s use and reduces its fair market value. Alternatively, the government may choose not to apply the regulation to the property.

In a word, Measure 37 is about fairness. Because no individual property owner should have to foot the bill for regulation designed to benefit all citizens, the measure distributes the costs of land use regulation to the public at large.

Even though the measure makes exceptions for regulation necessary to protect public health and safety, influential interests attacked it in the courts. An Oregon trial court judge bowed to their wish, holding Measure 37 unconstitutional because it limits the government’s “plenary power to regulate land use in Oregon.”

IJ entered the fray when the case went to the Oregon Supreme Court. In a “friend of the court” brief, IJ argued that Measure 37 is the people’s expression about the proper protection of individual rights, not an impermissible restriction on the government’s regulatory power.

A unanimous Oregon Supreme Court agreed and held that nothing in the Oregon Constitution prohibits the people, in the exercise of their initiative power, from requiring “state or local entities to decide . . . whether to pay just compensation or to modify, remove, or not apply certain land use regulations.”

The ruling was a victory for Oregonians and for all who value property rights. Rather than pitting environmental preservation against property rights, as so many governmental policies do, Measure 37 strikes an appropriate balance between the two.Michael Bindas is an IJ staff attorney.