When the word “parsing” starts showing up in newspaper headlines, you just know something has gone horribly awry. In this case, that something is Oregon’s Measure 37, which voters may modify next week when they weigh in on Measure 49.
Starting in 2000, with Measure 7, Oregon’s so-called “property rights” initiatives have unleashed perhaps the nastiest and most confusing series of election battles in Oregon’s history. (And that’s really saying something if you know Oregon politics.) For the last few months the debate over 49 has become a sort of bizarre monument to popular ballot measures: a dark gothic dread under-girding the swirling rococo flourishes of campaign rhetoric.
But at this late hour—and lacking the intestinal fortitude to descend into the fever swamps of Oregon’s electoral screaming match—it’s maybe worth reminding the state’s voters what happened at the ballot box in other states last year:
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- Each state neighboring Oregon considered their own Measure 37.
- And in each state, voters were swamped with pro and con stories from Oregon’s experience with 37. So, what happened?
- Nevada’s courts tossed the measure. California voters handed out a decisive “no.” Washington’s voters said “no” by nearly 20 points. And Idaho’s voters said “no” by almost 3 to 1.
The lesson? Measure 37 and its spawn are simply radioactive to the public. That’s because, at bottom, regulatory takings laws are terrible, terrible public policy. They are fundamentally anti-democracy, and voters tend to see them that way.
I’m keeping my fingers crossed that Oregon voters will see through the political bramble and support Measure 49. Whether they do or not, however, it is almost certain that the state’s property laws will once again be sorted out in courtrooms. And the state legislature will once again need to tinker with the laws.
Sigh. I’m starting to think that maybe popular initiatives aren’t the best way to address complicated policy questions.
Do you believe that there would by any furor over Measure 37 and 49 IF Oregonians were aware that the federal government owns fully 55 per cent of the acreage in the state? (and the state owns 5 per cent). It is mainly the western half of the nation that has laws like 37/49, as most states have very little federal land, ergo lots of land to go around. Would not it be more productive to get the federal lands sold or donated (Oklahoma land rush) to the state than to argue the propositions as we are now doing?
It is mainly the western half of the nation that has laws like 37/49, as most states have very little federal land, ergo lots of land to go around. Would not it be more productive to get the federal lands sold or donated (Oklahoma land rush) to the state than to argue the propositions as we are now doing? First, the only places that have M37-type laws is OR and AZ, and AZ only because it was snuck in (and OR is seeking to almost repeal M37).Second, federal lands are everyone’s lands. Selling them off is not an option. I want them. In public hands. As do the majority of people in this country.
What we forget is that all real property is a grant from the state. The state (us, the citizens) own all land within the sovereign jurisdiction of the state. Your title to real property is not outright – it has strings: taxation, eminent domain, police power, and escheat. Individuals do not own land; that is why it is called “real estate.” You have only an “estate” in the land, which is the grant to an owner to use the land and the ability to transfer that land.The police power affects owners of real estate, most prominently, as zoning.The key provision of Measure 37 turns on the impact of a regulation (exercise of the police power) on the immediate value of the property. What Measure 37, and its supporters, have done, is to confuse the police power of the state with eminent domain.If at any point in the future a regulation enacted in the past, but after purchase of the property, causes the value of the land to decline, then the regulation is effectively moot. Thus, we the people, have to pay or waive the police power because Measure 37 has effectively confused regulation with eminent domain.Measure 49 does not resolve this conflation, but compromises by allowing individuals who have Measure 37 claims to build up to three homes. Those who want more, must show a loss of value at the time the regulation was imposed; if they can, then what they can do is limited to the amount of loss, but not to exceed ten home sites.
So the NIMBYs and Bananas got their way, nothing new here.