Private Property Rights Victory: "Takings" Compensation Received 60% of Vote
OREGON VOTERS APPROVE MEASURE TO PAY FOR REGULATORY TAKINGS
Measure Could Start a National Movement
By Carol W. LaGrasse
Private property rights were reaffirmed by 60% of Oregon's voters on November 2, 2004. On that day, "Measure 37," a referendum to require government compensation for regulatory takings, was approved by Oregon's voters. The defeated Democratic presidential candidate received a majority of the vote in Oregon, but property rights protection overcame party lines and was swept to victory.
The good news flew across the country. From its Alaska office, the American Land Rights Association quoted Portland's newspaper, The Oregonian, declaring afterwards, "Oregon voters approved measures Tuesday that will shake the foundations of the state's 30-year-old land-use planning laws In a state better known for its planning than for its sports teams, approval of a sweeping property rights measure signals a major shift in attitude. Politicians can no longer rely on regulations to mold the type of communities they want - not without public buy-in or the money to pay off nonbelievers."
The Oregon Building Industry Association spokesman Jon A. Chandler issued a news release pointing to the key clause of the newly enacted law:
"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."
"It's a statutory enactment (and therefore insulated from a facial legal challenge), and it's a nice reminder that - in the words of the old song - pendulum swings like the pendulum do," remarked Mr. Chandler.
A previous Oregon referendum had approved takings compensation, but had run into technical difficulties in court and been declared invalid.
An editorial in The Wall Street Journal declared, "The measure is proof that voters can made sensible decisions on even emotional environmental issues. It's also a precedent for land owners that could spread to other states."
Clearly pleased, The Wall Street Journal editor was more level-headed than the Portland paper in its predictions in reaction to the measure's passage. "The immediate effect will be to stop the most frivolous land-use regulations, since state and local governments can't afford the millions of dollars it'd take to pay for all the land they 'take' in this fashion."
Of interest, also, was the Journal's observation that voters recognized that the warnings of "calamity" that the environmentalists attached to every attempt to reform laws to treat property owners fairly were mere "hyperbole."
Determination of Just Compensation
Oregon's voters approved directly a compensation measure that gives more fundamental treatment to property owners than any bill that had inched forward, however minusculy, in Congress. Readers will recall that, when the victorious Republican Congress came to town ten years ago, whenever the idea of simply enacting compensation for the loss of property value at any level as the trigger for just compensation was broached to members of Congress who were framing legislation, this idea was laughed out of town as too "radical." Congressional legislation (which failed anyway) was couched so that there would be a trigger point for compensation, so that, say, at 35% reduction in value of a property, compensation would be due. This sort of compromise of principle was not before the Oregon voters. They accepted the same reasoning that any private property owner would apply to an encumbrance by another private owner, such as a utility's request for a right-of-way easement. If value is taken, it should be compensated, without the requirement of a trigger point.
"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," states the simple declaratory clause in the successfully passed Oregon measure.
The measure provides that property owners will be compensated
for regulatory impositions authorized by laws enacted prior to
passage of the act. It provides for notification by the property
owner to the relevant government agency within a stated time-frame,
the opportunity for the government agency to discontinue enforcement
of the land use regulation within 180 days of notification, and
for the property owner to otherwise have a cause of action for
Certain regulations are exempt, such as common law restrictions of "historically recognized" public nuisances; laws to protect public health and safety such as building and fire protection codes, health and sanitation regulations, solid or hazardous waste regulations, and pollution control regulations; restrictions related to the use of property for pornography or nude dancing; laws to comply with federal law; or laws enacted prior to the acquisition of the property by the owner or a family member.
A clause in the law prohibits any government agency from using any procedures that it adopts for the purpose of processing claims as grounds for the dismissal, abatement, or delay of awarding compensation due the property owner.
Under the law, if a claim has not been paid within two years from the date on which it accrues, the owner is allowed to use the property as permitted at the time he acquired it.
The refinement of the Oregon "takings" compensation measure indicates that the days are past where property rights advocates should feel obligated to accept the incompetence and evasiveness, the lack of regard for one of the most fundamental protections of the Constitution, evidenced by legislators and members of Congress. Wetlands restrictions; endangered, threatened, and rare species habitat restrictions; historic and archeological impositions; and a myriad of zoning and land-use restrictions that have nothing to do with public health and safety have encumbered private property for too long. Property owners should no longer have to painfully bear on their individual shoulders the burden of these rules enacted for environmentalists' and preservationists' conceptions of the public good.
Text of Measure 37
"Regulatory Takings CompensationThe Successful Oregon Measure 37 Referendum" - Bill Moshofsky's Keynote Address to Ninth Annual National Conference on Private Property Rights