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States Take Action To Protect Property Rights

Oregon's Measure 37 has inspired a national property rights movement

Leonard Gilroy
May 8, 2006

After decades of increasingly burdensome state and local land use regulation, a majority of Oregon voters took a decisive stand in favor of property rights in November 2004 by passing Measure 37. This important ballot initiative will help provide relief to landowners whose properties have been devalued by three decades of regulation, and protect Oregon's property owners from economic hardship that may result from future regulations.

Measure 37 requires that local governments either: (1) compensate landowners when land use restrictions reduce the value of their property (so called "regulatory takings"), or (2) waive the restrictions and reinstate the rights that property owners had at the time they bought their land.

Measure 37 represents a major advance for the national property rights movement by establishing a system that restores to private landowners the rights that had previously been taken away via regulatory action. It also provides a check on government power by ensuring that state and local governments adequately weigh the costs and benefits of public action.

Capitalizing on the momentum generated by Measure 37's passage and the state Supreme Court ruling upholding the measure's constitutionality in February 2006, property rights activists and legislators in several states are following Oregon's lead and taking steps to enact their own regulatory takings reform. In some cases, proponents are advancing what have been termed "Kelo-Plus" measures: regulatory takings reform combined with curbs on the use of eminent domain in response to the U.S. Supreme Court's 2005 Kelo vs. New London decision. For example:

This upsurge of activity in a diverse group of states across the country suggests that the national property rights movement has been galvanized by the Kelo decision and Measure 37. Landowners in many communities have been restricted in their ability to use their land in the ways that they had intended when they purchased their property, dramatically reducing their property's value and imposing an economic hardship on them. And Justice Sandra Day O'Connor's stinging dissent in the Kelo case perfectly captured the feelings — and fears — of most homeowners when she wrote, "Any property may now be taken for the benefit of another private party."

As a result, property owners and citizens are increasingly aware of the need to protect their property rights from the expanding reach of government. Measure 37 represents the boldest response yet to the use of regulation to provide public benefits at private expense, and the fact that a majority of voters in a state with a long tradition of (and public support for) growth management supported Oregon's Measure 37 suggests that urban planning may not be sustainable unless it incorporates property rights into the regulatory framework. For those in the urban planning profession, voters have started to send the clear message that protecting property rights will be increasingly critical to successful planning efforts in the United States.

Leonard Gilroy is a certified planner and policy analyst at the Reason Foundation. He is the author of the new study Statewide Regulatory Takings Reform: Exporting Oregon's Measure 37 to Other States, which can be found online at [PDF, 596 KB]. An archive of Gilroy's research and commentary is here, and Reason Foundation's growth and land use research are available here.

Leonard Gilroy is Senior Managing Director, Pension Integrity Project &
Director of Government Reform

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