It’s about land. And money. But what is Measure 37, really?
Measure 37 dictates that owners of property affected by land-use regulations in Oregon are owed “just compensation” for the loss of profits related to the restrictions on how they use that property. It also allows governing bodies to exempt land from regulations in order to avoid compensating landowners.
Measure 37 applies to land use regulations already in effect. Thus, many claims for compensation are based on hypothetical and often questionable estimates of profit loss.
Although voters approved Measure 37 in last year’s election, last week, a Marion County judge found it unconstitutional.
In her ruling, Marion County Circuit Court Judge Mary Mertens James rightly explained that Measure 37 forces the government to make a difficult choice: It must either compensate property owners affected by land restrictions or give up its power to regulate how land is used. Either way, landowners win.
Nearby landowners and other taxpayers, however, often lose.
As demonstrated by plaintiffs’ claims in this case, Measure 37 has been applied or may be applied unfairly in some Oregon counties; some property owners have received exemptions from land use laws while others have not. Developing land around a farm, for example, can adversely affect that farm’s groundwater quality. Mixing residential housing and farming can also cause tensions with dust, noise, pesticide spraying and traffic congestion.
Oregon voters have recognized these conflicts in the past and worked to remedy them. Oregon began regulating land use in 1973, and the state has become a model for environmentally-minded urban growth boundaries and other planning measures.
Under Measure 37, the desires of land owners have precedent over the desires of a government trying to contend with the multi-faceted needs of the environment and city planning policies.
The measure also forces all citizens to help compensate landowners with their tax dollars, even if those citizens do not receive benefits or are negatively affected by Measure 37.
There are some cases in which land restrictions have prevented landowners from using their land in practical and responsible ways. It is certainly unconstitutional that the government’s power to rule, i.e. make policies which work toward the greatest good for the greatest number, is compromised by Measure 37.
Moreover, calculating hypothetical lost profits in today’s currency is a near-impossible task. Without a mechanism to calculate lost profits, important government policy stands the very real chance of being overturned simply to appease landowners.
Oregon is not required to make amends for laws passed by its government. Sometimes the government enacts policies that are difficult for individuals to cope with, but allocating monetary compensation for lack of a coping mechanism is no way to run a state.
As Governor Ted Kulongoski said Friday, “Significant policy changes that alter the very nature of governmental processes and the rights of individual citizens must be examined and enacted with thoughtful and careful deliberations.”
Measure 37 is both unconstitutional and fiscally irresponsible. As this case makes its way to the Oregon Supreme Court, judges should follow James’ logic and find this measure as such.