The Oregon Trial

What’s to learn from one state’s property-rights experiment?

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In November 2004, more than 1.7 million Oregonians voted on an initiative known as Measure 37, which supporters said would ensure that property owners in the state were “fairly compensated” when a government regulation reduced the value of their land.

The measure passed, winning nearly 61 percent of the vote. Nearly two years later, more than 2,400 claims for compensation — asking for more than $5.6 billion in all — have been filed with the Oregon Department of Land Conservation and Development, and hundreds more have been filed with counties. Waivers of land-use rules are routinely granted. And there are fears of large-scale residential and commercial development in areas that have been protected for decades.

“[In Oregon] 170,000 acres are subject to claims for [waivers] or compensation,” says Bob Stacey, the executive director of 1000 Friends of Oregon, an anti-sprawl organization that opposed Measure 37. While a few individual homes have been built as a result of such claims, he says, there have been no major developments because of a provision that precludes the transfer of a waiver from one landowner to another.

“You can expect intensive litigation on that point, a lot of hard lawyering to try to get around that transfer problem,” Stacey says. If the litigation is successful, he says, it could pave the way for “massive developments in rural neighborhoods affecting working family farmers, bizarre things like a pumice mine in a national monument, a waste dump next to vineyard land. These are unthinkable things, but people are thinking them, planning them, and suing government to do them.”

Nonsense, says David J. Hunnicutt, the president of Oregonians in Action, the organization that backed Measure 37 and its predecessor in 2000, Measure 7, which was thrown out after a court challenge. Opponents of the 2004 initiative trotted out a “parade of horribles,” he says, “ignoring the fact that Measure 37 has a health-and-safety exemption, a nuisance exemption, and a number of other exemptions that would have prohibited exactly what it was they were talking about.”

The acreage covered by the 3,000 or so claims filed to date is overwhelmingly in rural areas, and represents only a fraction of the 61 million acres in Oregon, according to Hunnicutt. “So,” he says, “when you put it into perspective, approximately 2 percent of Oregon is developed; the remaining 98 percent is undeveloped. As a result of Measure 37, we go from 2 percent to somewhere around 2.25 percent.”

On November 7, residents of Arizona, California, Idaho, and Washington will vote on initiatives similar to Measure 37. The events in Oregon over the past two years may be instructive.

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