Our Klamath Basin Water Crisis
Upholding rural Americans' rights to grow food,
own property, and caretake our wildlife and natural resources.
James L. Huffman
even Oregonians are only so green. The state is now in the midst
of high-stakes battle over whether the government should be forced
to pay property owners when it imposes regulations that strip land
of its value. Among the top concerns: regulations so strict that
families who have owned property for decades cannot subdivide and
pass separate parcels to their children.
fight has hit the ballot box, twice. The first time was in 2000,
when voters approved an amendment to the constitution forcing the
state to pay for the loss of value property owners suffer at the
hands of land use and environmental regulations. The amendment was
bogged down in litigation and was tossed out by the state Supreme
years ago voters tried again. This time 61% of them voted to enact
"Measure 37," a law that does what the constitutional amendment
attempted to do -- force the government to pay for the
environmental regulations it imposes on landowners. The law, which
has withstood court scrutiny, allows the government to waive
regulations when it prefers not to compensate a landowner. But in
recent weeks, the Democratically controlled legislature, voting
along party lines, moved to "reform" Measure 37 -- a euphemism for
emptying the law of any real meaning. The legislature has put the
bill on the November ballot.
Earlier this year House Speaker Jeff Merkley opened the assault,
declaring that the law "now reverberates with the sound of
industrial chainsaws and bulldozers. It bears no resemblance to
the measures voters approved, so we have to do everything we can
to make sure Oregonians are getting what they bargained for." In
other words, voters didn't know what they were doing and need to
be saved from themselves. Senate President Peter Courtney has made
Opponents of Measure 37 exploit fears that the law will force
local and state officials to approve large scale development
projects. The reforms on the ballot would drastically limit the
number of new home sites and allow the government to put
regulations on commercial and industrial property without
having to compensate the owners for loss of value.
reform, drafted by Democrats, has been drafted with some appealing
elements. It would expedite claims filed by property owners under
Measure 37; and it would explicitly grant property owners the
right to transfer their claim for compensation to another person
-- something that should be possible under Measure 37, but which
is now being fought over in the courts. Nevertheless, while these
provisions are good, the Democrats' overall aim is to split the
coalition needed to keep Measure 37 intact by driving a wedge
between ordinary folks and business, industry and subdivision
persistent argument in favor of Measure 37 "reform" is that it
could hurt farmers by spurring development that would place new
homeowners near existing farms, whose sounds and smells might be
considered a nuisance. As the argument goes, this could lead to
the new homeowners filing nuisance lawsuits. But there is already
a "right to farm" law to protect against such claims.
Another argument, this one made by the American Land Institute, is
that Measure 37 is a gift to farmers who already get a break
because their land isn't taxed at higher, urban assessments. But
taxing farmers at a lower rate allows them to keep farming, rather
than forcing them sell to developers. And if they do sell out,
they must pay back taxes for as far back as 10 years.
Georgetown Environmental Law & Policy Institute, in
are two problems with this. First, it was never claimed that land
regulation leads to systematic burdens on property owners as a
class. Rather voters were persuaded that it is unfair for some
property owners to suffer a loss because of regulation benefiting
the general public. Only those individuals are entitled to
compensation, and only after proving actual loss.
Secondly, if it is true that all or most of those who have filed
claims under Measure 37 weren't actually harmed by regulation, why
reform the law? If there is no loss, there is no compensation.
Ironically, opponents of the law have changed their tune on
property losses. When the issue was on the ballot in 2004, the
state estimated that regulations cost landowners $5.4 billion in
lost property values. Opponents used that figure to try to scare
voters into voting down Measure 37 because it would result in a
massive tax increase to pay for it. That hasn't happened. In fact,
there have been approximately 7,500 claims filed under the law.
Not one has been paid. Now so-called reformers claim that property
owners were never really harmed in the first place, so it's OK to
revise Measure 37. But then state and local governments have not
seriously tested claimed losses. Governments simply plead poverty
as they insist that waiving regulations is their only option.
Supreme Court Justice Hugo Black once noted that the U.S.
Constitution's Fifth Amendment takings clause was necessary to
"bar Government from forcing some people alone to bear public
burdens which, in all fairness and justice, should be borne by the
public as a whole." That's just the point: Measure 37 passed
because courts haven't provided much protection, and because in
course, if Messrs. Merkley and Courtney and other Democrats
believed Measure 37 was really a mistake, they could have simply
repealed the law. They didn't because they feared a voter
backlash. In the coming weeks and months as the campaign unfolds,
we'll know whether those voters will come back and protect a law
they pushed through to protect themselves.
Huffman, a professor at the Lewis & Clark Law School in Portland,
Ore., represented the chief petitioners in defending Measure 37
Page Updated: Thursday May 07, 2009 09:14 AM Pacific
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