Oregon Land Use Law Casts Long Election Shadow

Eminent domain gives the government authority to seize private property to develop it for the greater good. For example, to build a road that all can use. Generally, the government will pay fair market value for the land it takes.

But what if the government does something that reduces the potential value of land? For example, limiting the number of homes that can be built on it? This November, voters in four Western states will decide if the government should compensate property owners in those cases, too.

Oregon has already gone down this path. Two years ago, voters passed Measure 37, a ballot initiative that forces the state government to either compensate land owners or waive regulations if those regulations change a property's value.

A legal fight followed the 2004 ballot initiative. In February, the Oregon State Supreme Court ruled that Measure 37 is constitutional. Yet bureaucratic battles persist over how to implement the law, leaving many land owners frustrated.

And if voters in California, Arizona, Washington and Idaho -- all considering spin-offs of Measure 37 -- are looking to Oregon for clarity on how a compensation system works, they won't find much.

Take the case of Dennis and Ellen VonWald, for instance. They recently retired to live out their years in the rolling green hills of Washington County, halfway between Portland and the Pacific Ocean, where they planned to subdivide 50 acres of land into eight or nine home sites for sale.

Soon after they bought the land, the state government enacted some of the toughest land-use regulations in the nation. The rules essentially prohibited the couple from subdividing. "It's not fair," says Ellen VonWald. "It's taking my rights away -- rights that I bought and paid for."

Even with Measure 37 enacted, the VonWalds are in limbo. The Oregon attorney general says Measure 37 waivers, which allow property owners to go ahead with development plans, are non-transferrable. In short, the Von Walds could sell the land, but the new owners would not have the right to build on it.

Portland State University professor Sheila Martin says that's a Catch-22 situation that has scared off lenders and new development.

"With over 3,000 claims [for recompense filed by property owners], not much has happened on the ground in terms of development, because of the huge amount of legal uncertainty around the measure," Martin says. Those claims by property owners against the state currently total more than $4 billion.

So far, the government hasn't paid out a single dime under Measure 37. Nine times out of 10, the property owners get a waiver and are allowed to develop their land -- but some can find themselves in the same legal limbo at the VonWalds.

Opponents say the short-term stall in development as legal issues are resolved is just the calm before the storm. Eric Stachon, communications director for 1,000 Friends of Oregon -- the group that led the fight against Measure 37 -- says there are proposals to put industrial sites in places that are rural by nature.

"Claims for things like a gravel pit, an expanded garbage dump next to a winery, a pumice mine in a national monument... Many, many claims for large subdivisions," Stachon says.

Backers of the ballot initiative argue that it has not caused the rampant development that opponents feared when the law was first passed.

Meanwhile, authors of the property rights initiatives on other state ballots this year have tried to learn from the Oregon experience, crafting their measures with language meant to avoid legal snags.

Copyright 2022 NPR. To see more, visit https://www.npr.org.