Constitutional Limitations on Takings in Oregon & Arizona

September 26th, 2009 by Joseph William Singer

On Nov. 2, 2004, the voters adopted a state law known as Measure 37 that required compensation when any regulation “restricts the use of real property” and is enacted after an owner or a family member acquires title to land if the regulation “has the effect of reducing the fair market value of property” unless the regulation restricts activities “commonly and historically recognized as public nuisances under common law” or protects “public health and safety, such as fire and building codes, health and sanitation regulations, solid or hazardous waste regulations, and pollution control regulations.” Or. Stat. §195:305; Michael C. Blumm & Erik Grafe, Enacting Libertarian Property: Oregon’s Measure 37 and Its Implications, 85 Denv. U. L. Rev. 279 (2007). The measure applied both to statutes and to zoning ordinances. See Or. Stat. §195.305 to 195.314. Because the law applies to any regulations passed after an owner (or a family member) acquired title, present owners may go back to the laws in effect at the time their family first acquired the land – for some families, this may go back to a time before any zoning or environmental laws were in effect. This “inheritance right” would mean that zoning in a particular area would be inconsistent if acquired by different families at different times, making each parcel might be subject to different land use regulations. For this reason – and because it turned out that deregulating neighboring property might lead to a strip mall next to one’s house and even have the effect of reducing the value of one’s home – Measure 37 proved unpopular in various respects and was substantially modified when the Oregon voters passed Measure 49 on Nov. 6, 2007. Measure 49 eliminated the “inheritance right” and restricted Measure 37 claims to laws that restricted restrict residential, farm or forest uses of property, while allowing, without compensation, laws that limit commercial or industrial uses like strip malls and mines. Measure 49 also limited the number of homes that may be built on property freed from regulation by Measure 37. Claimants may build up to three homes if home construction was allowed when they acquired their properties, whether or not the post-acquisition restriction on construction reduced the value of their land; they may build four to ten homes if a post-acquisition regulation reduced their property value; however, they may not build more than three homes on high-value farmlands, forestlands and groundwater-restricted lands. And Measure 49 capped at twenty the number of homes sites any owner may build through Measure 37 waivers of land use laws regardless of the number of property she owns. In 2006, Arizona passed an act similar to Measure 37, known as Proposition 207 or the Private Property Rights Protection Act. Ariz. Stat. §12-1134.

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