What owners want and governments do: Evidence from the Oregon experiment

Fordham Law Review

Volumn 78, Issue 3, 2009, Pages 1281-1330

  Berger, Bethany R ^a  

^a UNIVERSITY OF CONNECTICUT   (United States)

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EID: 75649145027     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (396)

1. General Election Abstract of Votes, State Measure 37, http://www.sos.state.or.us/elections/nov22004/abstract/m37.doc (last visited Nov. 14, 2009).
2. See Gregory Roberts, Oregon Could Foretell Our Land-Use Destiny: Sprawl, Chaos, Justice? Clues Lay in '04 Property-Rights Win, SEATTLE POST-INTELLIGENCER, Nov. 1, 2006, at A1.
3. See Ballot Measure 37, OR. REV. STAT. § 197.352 (2005), amended by OR. REV. STAT. § 195.305 (2007).
4. Id.
5. See Elections Division, Oregon Secretary of State, Special Election Abstract of Votes, State Measure No. 49, http://www.sos.state.or.us/ elections/nov62007/abstract/results.doc (last visited Nov. 14, 2009).
6. See Carol M. Rose, Canons of Property Talk, or, Blackstone's Anxiety, 108 YALE L. J. 601 (1998) (discussing ways that focus on William Blackstone's assertion of "exclusive dominion" distorts both Blackstone and property law).
7. See infra notes 161-66 and accompanying text.
8. See infra notes 154-58 and accompanying text.
9. See infra notes 200-06.
10. See, e.g., ROBERT COOTER & THOMAS ULEN, LAW AND ECONOMICS 186-87 (5th ed. 2009).
11. See, e.g., Daniel A. Farber, Public Choice and Just Compensation, 9 CONST. COMMENT. 279 (1992) (arguing that public choice theory questions the cost-internalization theory);
12. Louis Kaplow, An Economic Analysis of Legal Transitions, 99 HARV. L. REV. 509 (1986) (arguing that compensation inefficiently interferes with assessments of market risks and benefits);
13. Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345 (2000) (arguing that governments are not subject to the same motivations as firms and do not experience costs and benefits of regulations in ways that would lead to their internalization of such costs).
14. See Prineville Writes First Measure 37 Check (OPB radio broadcast Sept. 12, 2007), available at http://news.opb.org/article/340-prineville- writes-first-measure-37-checlc/.
15. See WILLIAM K. JAEGER & ANDREW J. PLANTINGA, HOW HAVE LAND-USE REGULATIONS AFFECTED PROPERTY VALUES IN OREGON?, SPECIAL REPORT 1077, at 22, 26 (2007) (showing that land values in two Western Oregon counties grew more than those in comparable Washington counties, while values of agricultural parcels in one Western Oregon county grew less, although the median growth rate was equal).
16. This example is based on the claims of campaign spokesperson Dorothy English. Mrs. English purchased thirty-nine acres with her husband in 1953 for $4500. Laura Oppenheimer, Breaking Ground: Land Owners Who Fought for Measure 37 Ready the First Cases, OREGONIAN, NOV. 22, 2004, at A1. In the 1970s, they sold twenty acres for $53, 400, so that their investment in the remaining land was reduced to $2250. In 2004, when Mrs. English brought her claim, the land with the restrictions in place was worth $339, 000, or 150.66 times $2250.
17. Id. Without the restrictions, Mrs. English claimed, the land was worth $ 1.15 million, or 511.11 times $2250.
18. Id.
19. Id.
20. Id.
21. Richard Roesler, Voters Consider Property Measures: Washington, Idaho Initiatives Modeled After Oregon Law, SPOKESMAN-REVIEW (Spokane, Wash.), Oct. 8, 2006, at A1.
22. Id.
23. Editorial, Do Us All a Favor, OREGONIAN, Jan. 29, 2005, at D4.
24. Laura Oppenheimer, Lines Drawn on Land Use Put Victory Within Reach, OREGONIAN, NOV. 7, 2004, at A1.
25. Roesler, supra note 17.
26. Oppenheimer, supra note 20.
27. Laura Oppenheimer, Measure 37 Election: Emotions Will Flow in Battle over a Rewrite, OREGONIAN, May 5, 2007, at B1.
28. General Election Abstract of Votes, State Measure 37, http://www.sos.state.or.us/elections/nov22004/abstract/m37.doc (last visited Nov. 14, 2009).
29. Ballot Measure 37, OR. REV. STAT. § 197.352 (2005)
30. amended by OR. REV. STAT. § 195.305 (2007).
31. Michael C. Blumm & Erik Grafe, Enacting Libertarian Property: Oregon's Measure 37 and Its Implications, 85 DENV. U. L. REV. 279, 300-02 (2007).
32. League of Or. Cities v. State, 56 P.3d 892 (Or. 2002).
33. Measure 37: Restoring Balance and Fairness in Oregon's Land Use Laws, http://measure37.com/why.htm (on file with the Fordham Law Review).
34. See Loretto v. Teleprompter Manhattan CATV, Corp., 458 U. S. 419, 441 (1982).
35. 260 U. S. 393 (1922).
36. Id. at 415.
37. See, e.g., Miller v. Schoene, 276 U. S. 272 (1928) (finding that a requirement that property owner destroy a large number of ornamental red cedar trees on property was not a compensable taking);
38. Vill. of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926) (finding that a zoning law that caused a seventy-five percent reduction in the market value of land did not constitute a compensable taking);
39. Jackman v. Rosenbaum Co., 260 U. S. 22 (1922) (holding that a requirement that property owner remove structure on land deemed unsafe for party wall built by neighbor without compensation did not violate Constitution).
40. Lucas v. S. C. Coastal Council, 505 U. S. 1003 (1992). The Court did not rule that the measure was necessarily a taking, but held that such economic wipeouts were per se compensable unless the regulations merely implemented "background principles of nuisance and property law", and remanded to the South Carolina courts for a determination of whether the measure satisfied this standard.
41. Id. at 1031-32.
42. William A. Fischel, Why Are Judges So Wary of Regulatory Takings?, in PRIVATE PROPERTY IN THE 21ST CENTURY 50, 55 (Harvey M. Jacobs ed., 2004). Plaintiffs have found somewhat more success in lower courts, a phenomenon commentators have particularly noted in the U. S. Court of Federal Claims and the U. S. Court of Appeals for the Federal Circuit, both Article I courts where the executive has control over judicial appointments.
43. See David F. Coursen, The Takings Jurisprudence of the Court of Federal Claims and the Federal Circuit, 29 ENVTL. L. 821, 828-31 (1999).
44. The foundational conservative scholarly call is articulated in RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985) [hereinafter EPSTEIN, TAKINGS], which argues that compensation must, as a matter of the basic social compact, be paid for all governmental restrictions of property rights (broadly defined) that would not be permitted by private parties under the common law.
45. Id. at 36.
46. (For Epstein's slightly more nuanced current position, see RICHARD A. EPSTEIN, SUPREME NEGLECT: HOW TO REVIVE CONSTITUTIONAL PROTECTION FOR PRIVATE PROPERTY (2008) [hereinafter EPSTEIN, SUPREME NEGLECT].) Works by moderate to progressive scholars suggesting some expansion of compensation for regulations include Frank Michelman's bible of takings theory, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165 (1967) (suggesting that compensation should be provided where transaction costs are low and the risks of demoralization or unfair imposition on the powerless are high)
47. and Michael Heller and James Krier's Deterrence and Distribution in the Law of Takings, 112 HARV. L. REV. 997, 1009-11 (1999) (suggesting that compensation should be provided in cases such as Hadacheck v. Sebastian, 239 U. S. 394 (1915), even where regulation prevents nuisance-like harm if the burden on the individual property owner is high).
48. Harvey M. Jacobs, Introduction: Is All That Is Solid Melting into Air?, in PRIVATE PROPERTY IN THE 21ST CENTURY, supra note 34, at 1.
49. Id. at 2.
50. 545 U. S. 469 (2005).
51. Edward J. López, R. Todd Jewell & Noel Campbell, Pass a Law, Any Law, Fast!: State Legislative Response to the Kelo Backlash, REV. L. & ECON., available at http://www.bepress. com/cgi/viewcontent.cgi?article=1268&context=rle.
52. S. B. 100, 57th Leg. Assem., Reg. Sess. (Or. 1973), available at http://www.oregon. gov/LCD/docs/bills/sb100.pdf.
53. For more comprehensive discussions of this scheme and its history, see PLANNING THE OREGON WAY: A TWENTY YEAR EVALUATION xi-xxii (Carl Abbott, Deborah Howe & Sy Adler eds., 1994)
54. and Blumm & Grafe, supra note 26, at 285-304. The majority of Oregon's land use planning scheme is codified at Oregon Revised Statutes chapter 197.
55. See OR. REV. STAT. § 197.296 (2) (2007) (defining urban growth boundary and zoning considerations within urban growth boundaries).
56. OR. REV. STAT. §§ 215.203,.283,.284 (2007). Restrictions on new residential dwellings are slightly relaxed for lands not designated "high value" agricultural lands, but the restrictions remain extremely strict.
57. Id. §§ 215.700,.705,.710.
58. Id. §§ 215.720-.755 (restricting new residential dwellings on forestland).
59. OR. REV. STAT. §§ 308A.50-.128 (2007) (farmland taxation);
60. OR. REV. STAT. §§ 321.259-.290 (2007) (forestland taxation).
61. Arthur C. Nelson, Oregon's Urban Growth Boundary Policy as a Landmark Planning Tool, in PLANNING THE OREGON WAY, supra note 41, at 25, 33.
62. William G. Robbins, The Place We Call Home: A History of Land-Use Planning in Oregon, OR. HUMAN., Spring 2006, at 14, 14 (quoting former Oregon Governor Tom McCall and former Washington Governor John Kitzhaber) (internal quotation marks omitted).
63. Blumm & Grafe, supra note 26, at 279.
64. Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 STAN. L. REV. 1433, 1451 (1993).
65. Id. at 1442.
66. This gendered language carries a substantive point: takings test cases frequently involve female plaintiffs, see Kelo v. City of New London, 545 U. S. 469 (2005);
67. Dolan v. City of Tigard, 512 U. S. 374 (1994); Loretto v. Teleprompter Manhattan CATV, 458 U. S. 419 (1982), perhaps because they are more sympathetic as representatives of the "home" that needs to be protected from imposition. Dave Hunnicutt, executive director of Oregonians in Action, which both spearheaded the Measure 37 campaign and represented Mrs. Florence Dolan in her successful battle against Tigard, was kidded about the effectiveness of
68. "Hunnicutt's widows." Laura Oppenheimer, The Monday Profile: The Man Behind Measure 37: David Hunnicutt: Populist Lawyer Reigns in Aftermath of Land Use Reversal, OREGONIAN, Dec. 20, 2004, at A1.
69. See Prineville Writes First Measure 37 Check, supra note 12.
70. Although 42% of claims were for one to three homesites, 58% were for subdivisions of at least four homes. See HENRY R. RICHMOND & TIMOTHY G. HOUCHEN, AM. LAND INST., MEASURE 37: IS IT DOING WHAT OREGON VOTERS WANTED?, at 8 tbl.2 (2007). Subdivision claims encompassed 73.1% of all acreage affected.
71. Id. Claims for more than ten homes covered 71% of the total acreage affected. VICTOR ATIYEH, BARBARA ROBERTS & JOHN D. GRAY, MEASURE 37 REPORT AND RECOMMENDATIONS 1 (2007) [hereinafter ATIYEH REPORT].
72. BEN TULCHIN & LUNNA LOPES, GREENBERG QUINLAN ROSNER RESEARCH, OREGON STATEWIDE POLL RESULTS: OREGONIANS HAVE BUYER'S REMORSE FOR MEASURE 37 (2006), available at www.defendersactionfund.org/ newsroom/oregonpoll.pdf.
73. See Press Release, Governor Ted Kulongoski, Governor Urges Legislature To Put Small Landowners at Front of the Line (Jan. 19, 2007), available at http://governor.oregon. gov/Gov/P2007/press-011907.shtml (regarding proposal to fast track small claims and provide 180-day moratorium for others);
74. Peter Wong, Measure 37's Aftershocks Felt Two Years Later, STATESMAN-JOURNAL (Salem, Or.), Feb. 5, 2007, at 1A (describing beginning of hearings in response to governor's proposal).
75. S. B. 588, 74th Leg. Assem., Reg. Sess. (Or. 2007).
76. Or. Bill Hist., 2007 Reg. Sess., H. B. 3540 (2007), http://www.leg.state. or.us/07reg/pubs/hsemh.html (reflecting introduction of bill on April 12, 2007).
77. Id.
78. Id.
79. Ballot Measure 49: How It Works, www.yeson49.com (on file with the Fordham Law Review) [hereinafter Ballot Measure 49 Website].
80. H. B. 2640, 74th Leg. Assem., Reg. Sess. (Or. 2007). Oregonians in Action unsuccessfully challenged this language and the accompanying explanatory statement as biased and misleading. Grudzinski v. Bradbury, Civ. No. 07-6195-AA, 2007 WL 2733826 (D. Or. Sept. 12, 2007).
81. See Vote No on Measure 49, http://www.measure37.com (on file with author).
82. See Or. REV. STAT. § 195.300 (14) (2007) (describing land use regulation to include only regulations affecting residential, farm, or timber uses).
83. Ballot Measure 49, ch. 424, §§ 5, 6, 8, 2007 Or. Laws 1138, 1142-15.
84. See OR. REV. STAT. §§ 215.700,.705,.710 (2007).
85. Ballot Measure 49, ch. 424, §§ 7, 9, 2007 Or. Laws 1143-47.
86. Id. § 5 (3), 2007 Or. Laws 1142.
87. Ballot Measure 49 Website, supra note 60.
88. OR. REV. STAT. § 195.305 (1) (2007).
89. Id.
90. Id. § 195.310.
91. JOHN D. ECHEVERRIA & THEKLA HANSEN-YOUNG, THE TRACK RECORD ON TAKINGS LEGISLATION: LESSONS FROM DEMOCRACY'S LABORATORIES 8, 17-21, 24 (2008).
92. Blumm & Grafe, supra note 26, at 364-65.
93. See H. B. 2640, 74th Leg. Assem., Reg. Sess. §§ 3, 4 (Or. 2007) (bill enacting official ballot language).
94. Compare ELECTIONS DIV., OR. SEC'Y OF STATE, NOV. 6, 2007, SPECIAL ELECTION ABSTRACT OF VOTES, STATE MEASURE NO. 49 (2007) [hereinafter MEASURE 49 VOTE], available at http://www.sos.state.or.us/elections/ nov62007/abstract/results.pdf (showing a total of 1, 155, 374 votes on Ballot Measure 49)
95. with ELECTIONS DIV., OR. SEC'Y OF STATE, NOV. 2, 2004, GENERAL ELECTION ABSTRACT OF VOTES, STATE MEASURE NO. 37 (2004) [hereinafter MEASURE 37 VOTE], available at http://www.sos.state.or.us/elections/ nov22004/abstract/m37.pdf (showing a total of 1, 739, 668 votes on Ballot Measure 37). The Measure 49 vote represents sixty percent of registered voters.
96. See ELECTIONS DIV., OR. SEC'Y OF STATE, STATISTICAL SUMMARY, 2007 NOVEMBER SPECIAL ELECTION (2007), available at www.sos.state.or.us/elections/nov62007/nov07stats.pdf. Even given Oregon's relatively high voter participation rates, this seems an excellent turnout for a special election. Although the turnout was only two-thirds that of the 2004 election, the 2004 vote on Measure 37 was on the same day as the closely contested Bush-Kerry presidential election while the 2007 election concerned solely Measure 49 and another ballot measure for an increased tobacco tax.
97. See Elections Division, Oregon Secretary of State, Nov. 6, 2007 Special Election, http://www.sos.state.or.us/elections/nov62007 (last visited Nov. 14, 2009).
98. Compare MEASURE 49 VOTE, supra note 75
99. with MEASURE 37 VOTE, supra note 75 (showing that 62% of Jackson County voters supported Measure 37 and 60% opposed Measure 49 while 75% of Klamath County voters supported Measure 37 and 67% opposed Measure 49).
100. RICHMOND & HOUCHEN, supra note 53, at 11 (listing claims by region).
101. Compare MEASURE 49 VOTE, supra note 75
102. with MEASURE 37 VOTE, supra note 75.
103. RICHMOND & HOUCHEN, supra note 53, at 20-22 (charting number of claims in Willamette Valley counties).
104. Compare MEASURE 49 VOTE, supra note 75
105. with MEASURE 37 VOTE, supra note 75.
106. See, e.g., Corey v. Dep't of Land Conservation & Dev., 184 P.3d 1109 (Or. 2008) (denying claim);
107. Dep't of Land Conservation & Dev. v. Jefferson County, 188 P.3d 313 (Or. Ct. App. 2008) (same);
108. Frank v. Dep't of Land Conservation & Dev., 176 P.3d 411 (Or. Ct. App. 2008) (same);
109. *2 (D. Or. Nov. 12, 2008). The court found that the waivers were "contracts" not to continue litigation, and so could not be invalidated by Measure 49. The brief unpublished opinion is unlikely to be followed in other cases. The regulatory waiver is only loosely analogized to a settlement, and even more loosely to a binding contract characterized by consideration and mutual exchange of promises. The Contract Clause, moreover, is not an inexorable restriction even on obligations deemed contracts, but rather is subject to the states' police power to protect public health, safety, and welfare. Allied Structural Steel Co. v. Spannaus, 438 U. S. 234, 241-42 (1978);
110. U. S. Trust v. New Jersey, 431 U. S. 1, 22 (1977). Thus even clearly contractual obligations, such as a state railway charter providing that the railway would be immune from suits arising from injuries of its employees, Texas & N. O. R. R. Co. v. Miller, 221 U. S. 408, 415 (1911), and remedies for defaulting purchasers of state land, El Paso v. Simmons, 379 U. S. 497, 508 (1965), may be amended when necessary to serve an overriding public interest. The grant of a land development permit, while it may give rise to a vested rights claim if sufficient action is taken in reliance on the permit, is sufficiently far from traditional contract obligations and sufficiently tied to traditional exercises of police power to adjust regulation of land use that other courts are unlikely to break new ground in finding a Contract Clause violation.
111. OR. TASK FORCE ON LAND USE PLANNING, FINAL REPORT TO THE 2009 OREGON LEGISLATURE (2009) (reporting on comprehensive assessment on Oregon land use system and recommending modest changes);
112. Peter Wong, Lawmakers Take Another Look at Rules for Land Use-Oregon's Urban-Rural Conflict Is Decades Old, STATESMAN J. (Salem, Or.), Feb. 1, 2009, at 1A.
113. Kaiser Aetna v. United States, 444 U. S. 164, 179 (1979).
114. Lucas v. S. C. Coastal Council, 505 U. S. 1003, 1027 (1992).
115. Block v. Hirsh, 256 U. S. 135, 155 (1921).
116. See BRUCE A. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 113-67, 189 (1977) (arguing that much of takings law may be understood by taking the position of the Ordinary Observer, and that the U. S. Constitution embeds a principle of evaluating property according to ordinary social practice).
117. As many have noted, the notion that regulations comprise a compensable diminution of property rights has only emerged in the last century. See, e.g., Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U. S. 302, 322 (2002) ("Our jurisprudence involving condemnations and physical takings is as old as the Republic.... Our regulatory takings jurisprudence, in contrast, is of more recent vintage...."). Others have noted that underlying conceptions of property, and with them property law, shift over time.
118. See, e.g., MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 32-34 (1977) (describing shift from a natural use to a first development theory of property);
119. Sax, supra note 49, at 1442 (describing emergence and dominance of a "transformative economy" of property and the challenge now posed by a developing "economy of nature" model).
120. See, for example, the famous definition that Felix Cohen proposed and then challenged: [T]hat is property to which the following label can be attached: To the world: Keep off X unless you have my permission, which I may grant or withhold. Signed: Private citizen Endorsed: The state Felix S. Cohen, Dialogue on Private Properly, 9 RUTGERS L. REV. 357, 374, 378-79 (1954).
121. See Joan Williams, The Rhetoric of Property, 83 IOWA L. REV. 277, 280-82 (1998) (discussing gap between intuitive understanding and legal definition of property).
122. See, e.g., Christine Jolls, Cass R. Sunstein & Richard Thaler, A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471, 1483-85 (1998) (discussing empirical evidence of "endowment effect" that makes individuals place higher value on physical possessions);
123. Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957 (1982) (discussing ways that control over physical things contributes to personal selfactualization);
124. Carol M. Rose, Takings, Federalism, Norms, 105 YALE L. J. 1121, 1143 (1996) (reviewing WILLIAM A. FISCHEL, REGULATORY TAKINGS: LAW, ECONOMICS, AND POLITICS (1995)) ("There is just something about land that makes you think that when you own it, it is really, really yours.");
125. Williams, supra note 89.
126. Fischel, supra note 34, at 59.
127. See Abraham Bell & Gideon Parchomovsky, Givings, 111 YALE L. J. 547, 549-50 (2001) (discussing elision of givings in property jurisprudence).
128. Oppenheimer, supra note 23.
129. Laura Oppenheimer, Public Demands Land-Use Clarity, OREGONIAN, Feb. 23, 2007, at A1.
130. See, e.g., E-mail from Rozelle Burcher to Senator Kurt Schrader (Apr. 10, 2007) (on file with author) (saying when she saw the advertisements for Measure 37, she thought it would be a good thing if a farmer could build a house or two for his kids, but "[n]eighbors' rights need near equal weight");
131. Letter from Cindy Tyree, Freestyle Farm, Wilsonville, Or. to Joint Special Comm. on Land Use Fairness (Feb. 27, 2007) (on file with author) (writing that she voted for Measure 37 because she thought it would allow people to build one or two homes, not subdivisions, and she wants to be able to vote again).
132. Hearing on S. B. 588, S. B. 1019, H. B. 3153, H. B. 354, Before the Joint Comm. on Land Use Fairness [hereinafter Hearing], 74th Leg. Assem., Reg. Sess. (Or. 2007) (statement of Andra Bobbitt).
133. E-mail from Ellen Nawrocki to Senator Kurt Schrader, Joint Special Comm. on Land Use Fairness (Apr. 1, 2007) (on file with author).
134. E-mail from Mary Blankevoort to Representative Patti Smith et al., Joint Special Comm. on Land Use Fairness (Mar. 18, 2007) (on file with author).
135. E-mail from Rozelle Burcher to Senator Kurt Schrader, Joint Special Comm. on Land Use Fairness (Apr. 10, 2007) (on file with author).
136. Letter from Steve Rouse to Joint Special Comm. on Land Use Fairness (Apr. 18, 2007) (on file with author).
137. Hearing, supra note 96 (statement of Sharon Konopa).
138. Challenges to Oregon Laws Aimed at Controlling Urban Development (NPR radio broadcast, Apr. 26, 2005) (transcript on file with the Fordham Law Review).
139. Letter from Marilyn Allen et al. to Joint Special Comm. on Land Use Fairness (Apr. 7, 2007) (on file with author).
140. Hearing, supra note 96 (statement of David Setniker).
141. Letter from Victoria Avery and Michael Atherton to Senator Floyd Prozanski and Representative Gregory Macpherson, Comm. for a Better Measure 37 (Apr. 17, 2007) (on file with author).
142. See, e.g., Hearing, supra note 96 (statement of George Hansen);
143. id. (statement of Jess R. Moses);
144. id. (statement of Bob Horning).
145. See id. (statement of Rita Swyers);
146. E-mail from Paul Serres to Senator Kurt Schrader et al., Joint Special Comm. on Land Use Fairness (Mar. 13, 2007) (on file with author);
147. see also Hearing, supra note 96 (statement of David Duncan) (arguing that Oregon's land use laws were inappropriate for the current economy of Oregon).
148. See, e.g., Hearing, supra note 96 (statement of Thomas A. McDonald) (stating that Measure 37 should "be remembered and honored, as the restoration of the owners' property rights at the time of purchasing");
149. Letter from Charles D. & Kay Simmelink to Senator Roger Beyer et al., Joint Special Comm. on Land Use Fairness (Mar. 14, 2007) (on file with author) ("Please understand that in the 1970's the Oregon State Legislature took away our rights as property owners to do as we wished with our land.").
150. Hearing, supra note 96 (statement of Loydee Stonebrink).
151. Id. (statement of Glen Stonebrink) (submitted as part of statement of Loydee Stonebrink).
152. Letter from Thomas A. McDonald to Joint Special Comm. on Land Use Fairness (Mar. 6, 2007) (on file with author).
153. Hearing, supra note 96 (statement of Ronald D. Whitelaw).
154. Roesler, supra note 17.
155. Id.
156. See Bruce Ramsey, Despite Losses, Property-Rights Fight Is Far from Over, SEATTLE TIMES, NOV. 15, 2006, at B6.
157. Roberts, supra note 2;
158. see also Roesler, supra note 17.
159. Ray Ring, Patriotic Pitch Hides Snarling Dog, SEATTLE POST-INTELLIGENCER, Sept. 17, 2006, http://www.seattlepi.com/ opinion/285287-focusl7.html.
160. Tom Koenninger, Ballot Gets Development 'Monster,' COLUMBIAN (Vancouver, Wa.), Aug. 9, 2006, at C7.
161. Ramsey, supra note 115. Proponents tried to get similar measures before voters in Oklahoma, Missouri, Montana, and Nevada. Rocky Barker, Proposition 2 Opposition Is Widespread, IDAHO STATESMAN (Boise), Oct. 8, 2006, at 1. The Missouri measure failed to get enough signatures and the state courts struck the other three from the ballot as misleading or otherwise in violation of state requirements.
162. Id.
163. 546 U. S. 469 (2005).
164. Ray Ring, Taking Liberties, BOISE WEEKLY, Aug. 23, 2006, at 13.
165. Leonard Gilroy, By a Landslide, Americans Voted To Protect Their Property Rights, BUFFALO NEWS, Nov. 19, 2006, at 12.
166. Prop 207 Has Local Officials Worried, ARIZ. DAILY SUN, Oct. 20, 2006, http://www.azdailysun.com/articles/ 2006/10/20/news/20061020-news-22.txt.
167. See, e.g., Rocky Barker, Oregon Tried Law Like Prop 2 in 2004, IDAHO STATESMAN (Boise), Nov. 2, 2006, at Main 1;
168. Ramsey, supra note 115. A similar limitation on eminent domain had already been enacted by statute by the Idaho Legislature. Barker, supra.
169. See Barker, supra note 124;
170. Ring, supra note 121;
171. Lora Volkert, Oregon a Glimpse of Idaho's Future, IDAHO BUS. REV., Oct. 9, 2006.
172. Vem Bisterfeldt, Proposition 2 Will Take Away Property Rights, Not Protect Them, IDAHO STATESMAN (Boise), Oct. 23, 2006, at 6.
173. Ramsey, supra note 115.
174. Chuck DeVore, California Conservatives Wage Ballot Battle To Protect Private Property, HUM. EVENTS, Oct. 30, 2006, at 9.
175. Id.
176. See, e.g., Meg Caldwell, Prop 90 Would Doom Coast to Over-Development, SAN JOSE MERCURY NEWS, Oct. 19, 2006, at 18A;
177. Patrick Hoge, Oregon Experience Cited in Property Rights Debate, S. F. CHRON., Oct. 16, 2006, at A9;
178. Lisa Vorderbrueggen, Community vs. Individual: Debate Turns on Landowners' Rights Balanced Against Ability of Community To Improve or Protect Its Land, CONTRA COSTA TIMES (E. County ed.), Oct. 17, 2006, at Al.
179. Ramsey, supra note 115.
180. Prop 207 Has Local Officials Worried, supra note 123.
181. Ramsey, supra note 115.
182. Barker, supra note 119.
183. Stories of Measure 37 dominated the unsuccessful 2007 campaign to pass a similar measure in Alaska's Matanuska-Wanitsa Borough as well. See Rindi White, Land-Use Debate Looks to Oregon: Prop I: Friends, Foes of Ballot Issue Justify Stance Based on Outside Effects, ANCHORAGE DAILY NEWS, Sept. 28, 2007, at J1.
184. John Gastil, Justin Reedy & Chris Wells, When Good Voters Make Bad Policies: Assessing and Improving the Deliberative Quality of Initiative Elections, 78 U. COLO. L. REV. 1435, 1441-66 (2007).
185. See supra note 96.
186. Hearing, supra note 96 (statement of Sue Anne Henneck);
187. Letter from Sarah Deumling to Joint Special Comm. on Land Use (Apr. 17, 2007) (on file with author);
188. Letter from Sharon Konopa, City Councilor of Albany, Or. to Senator Floyd Prozanski & Representative Gregory Macpherson, Joint Special Comm. on Land Use Fairness (Apr. 17, 2007) (on file with author).
189. Dorothy English, for example, our infamous gravelly voiced poster widow, became only more committed to freedom from governmental regulation of property use, insisting that not only could she build a multi-unit subdivision on her land, but that she did not need to comply with any state permitting procedures because they also did not exist in 1953 when she and her husband purchased their land. Laura Oppenheimer, Measure 37 'Hero' Faces a New Battle, OREGONIAN, Feb. 2, 2007, at Cl.
190. See supra notes 96-106 and accompanying text.
191. See supra notes 16-27 and accompanying text.
192. See, e.g., COOTER & ULEN, supra note 10, at 186-87 ("If the state need not compensate for restrictions, then it will impose too many of them. If there are too many restrictions, then resources will not be put to their highest-valued use. Thus, uncompensated restrictions result in inefficient uses.");
193. see also EPSTEIN, SUPREME NEGLECT, supra note 35, at 119 ("If by chance, the diffuse social gains do outweigh the localized costs, then the 'winners' should be able to push the condemnation measure through, with compensation.").
194. See Prineville Writes First Measure 37 Check, supra note 12.
195. Timothy J. Brennan & James Boyd, Political Economy and the Efficiency of Compensation for Takings, 24 CONTEMP. ECON. POL'Y 188, 190 (2006).
196. A leading law and economics textbook provides a succinct statement (along with italics) of this principle: "Obviously, the noncompensability of regulations gives government officials an incentive to overregulate, whereas the compensability of takings makes governmental officials internalize the full cost of expropriating private property." COOTER & ULEN, supra note 10, at 188-89;
197. see also Lawrence Blume & Daniel L. Rubinfeld, Compensation for Takings: An Economic Analysis, 72 CAL. L. REV. 569, 621 (1984) (describing government decision making in absence of compensation requirement as operation under a "fiscal illusion"). Scholars have of course contributed important complexities to the efficiency justification for compensation requirements. Frank Michelman, in an article that remains the starting point in takings theory, recognized that analysis of the costs and benefits of a project must also include the demoralization costs to owners whose property is taken without compensation and the settlement costs of identifying and negotiating compensation. See Michelman, supra note 35. Michael Heller and James Krier more recently pointed out that deterring inefficient decisions did not require that the costs imposed on governments go to property owners, thus separating the efficiency argument from fairness arguments for compensation. Heller & Krier, supra note 35. The dominant view also recognizes that full compensation for regulatory restrictions may encourage property owners to engage in investment without concern for whether the state will eventually restrict them, thus encouraging potentially wasteful investment.
198. See COOTER & ULEN, supra note 10, at 187.
199. See, e.g., Farber, supra note 11;
200. Kaplow, supra note 11;
201. Levinson, supra note 11.
202. The Kelo Decision: Investigating Takings of Homes and Other Private Property: Hearing Before the S. Comm. on the Judiciary, 109th Cong. (2005) (statement of Thomas A. Merrill, Charles Keller Beekman Professor of Law, Columbia University), available at http://judiciary.senate.gov/hearings/ testimony.cfm?id=1612&wit-id=4661 (suggesting greater compensation to provide added deterrence to all eminent domain projects);
203. James E. Krier & Christopher Serkin, Public Ruses, 2004 MICH. ST. L. REV. 859, 865-73. One such scholar has since recanted, providing an excellent discussion of the greater salience of political over economic concerns in planning projects as well as the significantly abovemarket compensation provided to takees. See Nicole Stelle Garnett, The Neglected Political Economy of Eminent Domain, 105 MICH. L. REV. 101 (2006).
204. E-mail from Colleen Fluetsch to Senator Vicki Walker et al., Joint Special Comm. on Land Use Fairness (Mar. 13, 2007, 16:01 PST) (on file with author).
205. E-mail from Colleen Fluetsch to Senator Vicki Walker et al., Joint Special Comm. on Land Use Fairness (Mar. 15, 2007, 09:59 PST) (on file with author).
206. Press Release, Or. Dep't of Agric, ODA Develops Maps To Show Impact of Measure 37 Claims: Willamette Valley Farmland Faces Measure 37 Impact (Feb. 21, 2007), available at http://oregon. gov/ODA/docs/pdf/news/07022 lmeasure37.pdf.
207. Id.
208. Id.
209. See, e.g., Hearing, supra note 96 (statement of Gary Conklin, Oregon Winegrowers Association). In an interesting comment on modern
210. See id. (statement of David Martin, President, Oregon Pilots' Association);
211. id. (statement of Robert Severance, President, Oregon Flying Farmers).
212. Id. (statement of Larry Martin);
213. see also id. (statement of Don Schellenberg, Associate Director of Governmental Affairs, Oregon Farm Bureau) (expressing concern about carving up agricultural lots and seeking right to farm legislation to prevent nuisance suits against farmers).
214. See id. (statement of Gary Rhinhart).
215. Mary Pitman Kitch, This Land Is Whose Land?, OREGONIAN, Feb. 11, 2007, at El.
216. Hearing, supra note 96 (statement of Gary Conklin, Oregon Winegrowers Association).
217. See David Sarasohn, Editorial, Paying for No: On Measures 49 and 50, the Money Is the Message, OREGONIAN, Oct. 3, 2007, at F6.
218. JIM JOHNSON, OR. DEP'T OF AGRIC, MEASURE 37 SLIDESHOW, available at http://www.oregon. gov/ODA/NRD/docs/pdf7m37/m37-ppt.pdf.
219. Jeff Wright, Claims Spur Watershed Warning, REGISTER- GUARD (Eugene, Or.), Feb. 8, 2007, at Al.
220. Id.
221. Letter from Marilyn Allen et al. to Joint Special Comm. on Land Use Fairness (Apr. 7, 2007) (on file with author).
222. Id.
223. Hearing, supra note 96 (statement of Andra Bobbitt).
224. Letter from Steve Rouse to Joint Special Comm. on Land Use Fairness (Apr. 17, 2007) (on file with author).
225. Timothy Alex Akimoff, Land-Use Claims Bury Marion and Polk County Staffs, STATESMAN JOURNAL (Salem, Or.), Jan. 4, 2007, at 1 A.
226. In re Ballot Measure 37 Claim of Walter and Sara McGuire, No. 06-LURCC-06, Order No. 11-06-380 at 2 (Bd. of Comm'rs for Lincoln County, Or., Nov. 8, 2006) (approving claim to divide property into up to eighty one-acre parcels);
227. see also In re Ballot Measure 37 Claim of Robert and Janice Foley, No. 147-LURCC-06, Order No. 9-07-708 at 3 (Bd. of Comm'rs for Lincoln County, Or., Sept. 12, 2007) (approving claim to divide property into up to nine one-acre parcels).
228. See Farber, supra note 11, at 279;
229. Levinson, supra note 11, at 345. 169.
230. See Levinson, supra note 11, at 355.
231. See Kaplow, supra note 11, at 568-69.
232. Garnett, supra note 147, at 141-42.
233. Id.
234. See DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION 33 (1991);
235. Levinson, supra note 11, at 374.
236. See FARBER & FRICKEY, supra note 173, at 29-33.
237. See Farber, supra note 11, at 289-90.
238. Some have even argued that in eminent domain cases, where the injury of governmental action is clear and strong, the compensation requirement may actually facilitate takings by placating an otherwise highly motivated and sympathetic opposition group.
239. See id. at 293-94. Timothy J. Brennan and James Boyd have interestingly used political economy to argue that compensation should be paid for regulatory takings where property owners are politically powerful and those they dub environmentalists are weak to ensure that owners do not deter efficient regulation, but that compensation should not be paid where environmentalists are strong, to ensure that land owners provide a counterbalance in arguments regarding land use regulation. Brennan & Boyd, supra note 144, at 200. Although a clever twist to the efficiency debate, the impossibility of jiggering the compensation requirement according to an ex ante assignment of sides and their relative strength in a debate, as well as the idea that efficient regulation will necessarily emerge from debate between equally motivated opponents, suggests that this is at most an entertaining thought experiment.
240. See WILLIAM A. FISCHEL, THE HOMEVOTER HYPOTHESIS: HOW HOME VALUES INFLUENCE LOCAL GOVERNMENT TAXATION, SCHOOL FINANCE, AND LAND-USE POLICIES (2001).
241. Id. at 4, 15.
242. Id. at 39-10.
243. See id. at 4.
244. Id. at 89.
245. This insight may be translated to decisions of larger governments as well. Take, for example, the infamous case of Perm Central Transportation Co. v. New York City, 438 U. S. 104 (1978), in which a historic preservation ordinance prevented the owners of Grand Central Terminal from building a skyscraper atop their historic Beaux Arts building. The rent from the proposed addition would have been three million dollars annually.
246. Id. at 116. Although the owner lost the value of this rent, the city lost the taxes on this additional income and the economic benefits of this additional commercial space as well. The ordinance reflected a long-term decision that the benefits of maintaining the integrity of New York's historic structures surpassed the losses due to this sacrifice. To compensate Penn Central for the loss in addition to foregoing the benefits of the added economic activity, however, would effectively double the cost side of the calculus and almost certainly make the ordinance inefficient.
247. It is important to note that William Fischel himself supports broader compensation for land use regulations, FISCHEL, supra note 177, at 284-85, but not for reasons that undermine this use of his work. Fischel recommends compensation for land use regulations that demand "supernormal" density, such as ten-acre lots
248. id. at 272-75, but not because he believes that such restrictions are inefficient for the community imposing them. He writes that local government desires to protect property values undermine regional and state interests in providing housing and preventing sprawl
249. id. at 229-31, so that local communities should be forced to pay when they wish to impose such restrictions
250. id. at 274-75. The compensation requirement is thus a way of deterring land use decisions where local and societal interests are not aligned.
251. Akimoff, supra note 166.
252. The lack of allocated funds for compensation was apparently a significant factor in the decision to waive regulations. As an article describing the process in Marion and Polk Counties described, "No county has paid compensation to landowners, because there is no money to do so."
253. Id. Of course, while the volume of claims made compensation without allocated funds more difficult, it does not explain the failure of local governments to make any attempt to determine if even a limited set of the regulations were worth maintaining.
254. Even here, however, the public was not effectively mobilized with respect to individual claims. Most county hearings on Measure 37 claims appear to have been unattended except for by the claimant; even in the Prineville Rimrock case no one besides the Palins appeared to testify on the claim. Rachel Scarborough King, Next Steps Uncertain in Prineville Mil Payout, BULLETIN (Bend, Or.), Oct. 25, 2006, available at Rachael Scarborough King, http://rachaelsking.blogspot.com/2006/10/next-steps-uncertain-inprineville-m37. html (Oct. 25, 2006, 11:04 PST).
255. Hearing, supra note 96 (statement of Laurel Hines & Brian Hines).
256. Letter from Steve Rouse to Joint Special Comm. on Land Use Fairness (Apr. 17, 2007) (on file with author).
257. This intuition regarding the chilling effect on future regulations is borne out by studies of the impact of Florida and Arizona laws demanding compensation for new regulatory restrictions. JOHN D. ECHEVERRIA & THEKLA HANSEN-YOUNG, THE TRACK RECORD ON TAKINGS LEGISLATION: LESSONS FROM DEMOCRACY'S LABORATORIES 8-9, 17-21 (2008) (discussing regulatory chill caused by Florida's 1995 Bert Harris Act and Arizona's Proposition 207).
258. Matthew Preusch, Prineville Offers Measure 37 Pay, OREGONIAN, Oct. 26, 2006, at Al.
259. Mary Kitch, The Riddle of the Rimrock, OREGONIAN, NOV. 14, 2007, at Fl.
260. King, supra note 186. Grover Palin apparently purchased the land to graze his horses and did not even realize at the time of purchase that it included rimrock land.
261. Id.
262. Id.
263. Preusch, supra note 190.
264. Id.
265. Id.
266. King, supra note 186.
267. Id.
268. Id.
269. Rachael Scarborough King, Prineville To Pay First M37 Claim, BLLETIN (Bend, Or.), Oct. 18, 2006, available at Rachael Scarborough King, http://rachaelsking.blogspot.com/2006/10/prineville-to-pay- first-m37-claim.html (Oct. 18, 2006, 11:22 PST);
270. see also King, supra note 186 (reporting statement of Councilor Bobbi Young: "I think the rimrock is extremely important to this community, it's what defines it and to allow a home built that is a visual blight, if you will, on that rimrock... would be a very tough thing for me to accept.").
271. Kitch, supra note 191.
272. Brennan & Boyd, supra note 144.
273. 545 U. S. 469, 475-77 (2005).
274. King, supra note 200.
275. Rachel Scarborough King, Prineville Pair Files Second M37 Claim, BULLETIN (Bend, Or.), Nov. 29, 2006, available at Rachel Scarborough King, nttp://rachaelsking.blogspot.com/2006/12/prineville-pair- files-second-m37-claim.html (Nov. 29, 2006, 23:47 PST).
276. Id.
277. Id.
278. Prineville Writes First Measure 37 Check, supra note 12. The difference in offers was likely not a determination of the value of the parcel with hotel development rights, but rather a resolution of the difference between the city's appraisal of the land with building rights and a private appraisal the Palins had obtained. See King, supra note 200 (noting that the city appraised the land at $60, 000 with development rights, and $12, 340 without, while the Palin's appraisor valued the land at $195, 000 with development rights).
279. Prineville Writes First Measure 37 Check, supra note 12.
280. Heller & Krier, supra note 35, at 1000.
281. I use the Kaldor/Hicks definition of efficiency, the definition most commonly used in legal analysis, which defines an action as efficient if its benefits outweigh its costs. COOTER & ULEN, supra note 10, at 47-48. To be Pareto efficient, the action would have to make society better off without making any individual worse off and, therefore, would always require compensation of the losses of any individual.
282. Id. at 17.
283. See, e.g., Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U. S. 302, 336 (2002) (describing regulatory takings test as seeking to determine "when 'justice and fairness' require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons" (quoting Perm Cent. Transp. Co. v. New York City, 438 U. S. 104, 124 (1978))).
284. Pa. Coal Co. v. Mahon, 260 U. S. 393, 416 (1922).
285. Oppenheimer, supra note 14.
286. For a nice discussion of some of the theoretical and practical difficulties in determining compensation in regulatory takings cases, see Christopher Serkin, The Meaning of Value: Assessing Just Compensation for Regulatory Takings, 99 Nw. U. L. REV. 677 (2005).
287. See, e.g., ATIYEH REPORT, supra note 53, at 4 (discussing Claim Ml 19803, which demanded $9.5 million in compensation for the difference in value between claimant's fiftyfour acres used as farmland and divided into ninety-seven half-acre lots).
288. See Eric Mortenson, Face of Measure 37 Campaign Still Stuck, OREGONIAN, Dec. 25, 2007, at Dl.
289. See King, supra note 200;
290. cf. Serkin, supra note 215, at 683 (noting that even with the same appraisal techniques appraisers can reach "wildly different results").
291. 272 U. S. 365 (1926).
292. Id. at 384.
293. Palazzolo v. Rhode Island, 533 U. S. 606, 616 (2001). It appears, however, that Anthony Palazzolo could not have developed the land as he wished even without the wetlands laws; during the litigation the Town testified that zoning laws prohibited dividing eighteen acres into seventy-four homesites. Palazzolo v. State, 746 A.2d 707, 715 n. 7 (R. I. 2000), rev'd, 533 U. S. 606.
294. 533 U. S. 606.
295. Pa. Coal Co. v. Mahon, 260 U. S. 393, 416 (1922).
296. JAEGER & PLANTINGA, supra note 13;
297. William K. Jaeger, The Effects of Land-Use Regulations on Property Values, 36 ENVTL. L. 105 (2006);
298. see also Keith H. Hirokawa, Property Pieces in Compensation Statutes: Law's Eulogy for Oregon's Measure 37, 38 ENVTL. L. 1111, 1156 (2008) (noting that Measure 37 did not account for the positive effects of zoning on land value);
299. Serkin, supra note 215, at 695-96 (discussing the difficulty of measuring the "benefit offset[s]" in regulatory takings cases).
300. Bell & Parchomovsky, supra note 92, at 549-50.
301. JAEGER & PLANTINGA, supra note 13, at 2;
302. Serkin, supra note 215, at 695-96.
303. For example, a recent report by Oregon Land Watch calculated that the costs of providing infrastructure and municipal services vastly outweigh tax revenue and other benefits for Oregon's planned "destination resorts", for which the Legislature has relaxed development restrictions. EBEN FODOR, FISCAL AND ECONOMIC IMPACTS OF DESTINATION RESORTS IN OREGON (2009), available at http://www.centraloregonlandwatch.org/files/ Destination%20Resort%20Impact%20Study%20Revised.pdf.
304. Palazzolo v. Rhode Island, 533 U. S. 606, 613 (2001).
305. Vicki Been, Lucas v. the Green Machine: Using the Takings Clause To Promote More Efficient Regulation?, in PROPERTY STORIES 299 (Gerald Korngold & Andrew P. Morriss eds., 2009).
306. See, e.g., Hearing, supra note 96 (statement of Gary Conklin, Oregon Winegrowers Association).
307. OR. REV. STAT. §§ 308A.50-.128 (2007) (farmland taxation);
308. OR. REV. STAT. §§ 321.259-.290 (2007) (forestland taxation).
309. HENRY R. RICHMOND & TIMOTHY G. HOUCHEN, AM. LAND INST., OREGON'S PUBLIC INVESTMENT IN CONSERVATION, PROSPERITY & FAIRNESS: REDUCED TAXATION OF FARM LAND AND FOREST LAND 1974-2004, at 2 (2007).
310. In some cases, the governmental investment was even more specific. Gary Rhinhart, a wheat farmer, testified to the Land Use Fairness Committee that most of the owners of lands subject to Measure 37 claims in his area were paid by the federal government to have their land planted with grass to protect water quality and protect wildlife habitats. "I see no way they lost any value", he declared, "as they watch the grass grow." Hearing, supra note 96 (statement of Gary W. Rhinhart).
311. As discussed below, however, a study comparing properties in Oregon and Washington suggested that, perhaps as a result of these amenity effects, restricted property was actually more valuable than similar property without such restrictions. JAEGER & PLANTINGA, supra note 13, at 2.
312. See ATIYEH REPORT, supra note 53, at 4-5.
313. For an article by an expert witness for Anthony Palazzolo on the battle over valuation methods in Palazzolo v. Rhode Island, 533 U. S. 606 (2001)
314. see William W. Wade & Robert L. Bunting, Average Reciprocity of Advantage: "Magic Words" or Economic Reality-Lessons from Palazzolo, 39 URB. LAW. 319 (2007).
315. Elli Pagourtzi et al., Real Estate Appraisal: A Review of Valuation Methods, 21 J. PROP. INVESTMENT & FIN. 383, 386-88 (2003). This is the gold standard in determining compensation for property as well.
316. See United States v. 50 Acres of Land, 469 U. S. 24, 30 (1984) (stating that where there is a "robust market" for similar properties, the comparable price method is to be preferred);
317. United States v. New River Collieries Co., 262 U. S. 341, 345 (1923) ('"If it be an article commonly traded in on a market and it is shown that at the time and place it was taken there was a market in which like articles in volume were openly bought and sold, the prices current in such a market will be regarded as its fair market value and likewise the measure of just compensation for its requisition. '" (quoting United States v. New River Collieries Co., 276 F. 690, 692 (3d Cir. 1921))).
318. Andrew J. Plantinga, Measuring Compensation Under Measure 37: An Economist's Perspective (2004), http://arec.oregonstate.edu/faculty2/ measure37.pdf.
319. Id. 239.
320. Id.
321. JAEGER & PLANTINGA, supra note 13, at 6.
322. Id.
323. Id.
324. Id.
325. Id. at 7.
326. Id.
327. Id..
328. Id. at 22.
329. Id.
330. The authors explain that this variation is due to the small and varying sample of Baker County properties.
331. Id. at 24. They also note that data compiled by the USDA Economic Research Service suggest that farmland in Oregon has increased in value at rates comparable to those in neighboring states and higher than the national average.
332. Id. at 26.
333. Ballot Measure 49, ch. 424, §§ 7, 9, 2007 Or. Laws 1138, 1143-47.
334. OR. REV. STAT. § 195.310 (2007).
335. As owners have five years from the date of the enactment of the regulation to file a compensation claim, these appraisals may involve estimating the value of a property as much as six years prior.
336. Id. § 195.312 (4).
337. Indeed, zoning law typically preserves the right of existing nonconforming uses to continue. See JOSEPH WILLIAM SINGER, PROPERTY LAW: RULES, POLICIES & PRACTICES 919-25 (4th ed. 2006).
338. In addition, as Professor Christopher Serkin points out, the risk of a pending restriction may be reflected in the cost of property for some time before the formal adoption of a zoning change. See Serkin, supra note 215, at 697-99.
339. Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 459 (1897).
340. JAEGER & PLANTINGA, supra note 13, at 22.
341. Oppenheimer, supra note 14.
342. ECHEVERRIA & HANSEN-YOUNG, supra note 72, at 53.
343. Oppenheimer, supra note 14.
344. See, e.g., EPSTEIN, TAKINGS, supra note 35, at 10-12, 57 (using Lockean conception of natural rights of individual against sovereign to argue that any governmental diminishment of the rights of the owner that would not be permitted a private individual at common law is within the scope of the Takings Clause);
345. Steven Geoffrey Gieseler, Leslie Marshall Lewallen & Timothy Sandefur, Measure 37: Paying People for What We Take, 36 ENVTL. L. 79, 82 (2006) ("Property is part of a familiar triad-along with life and liberty-that has as its essence the right to self-actualization. The reason that a traditional condemnation requires compensation is that it unfairly deprives a person, without her consent, of the right to use her faculties as she sees fit. Regulatory takings are no different.").
346. William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782, 783 (1995).
347. Dickman v. Comm'r, 465 U. S. 330, 336 (1984) ("Of the aggregate rights associated with any property interest, the right of use of property is perhaps of the highest order.");
348. Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 433, 435 (1982)
349. (describing property rights in a physical thing as "the rights 'to possess, use, and dispose of it'" (quoting United States v. Gen. Motors Corp., 323 U. S. 373, 378 (1945)));
350. see also United States v. Craft, 535 U. S. 274, 278 (2002) ("A common idiom describes property as a 'bundle of sticks'-a collection of individual rights which, in certain combinations, constitute property." (citation omitted)).
351. JAMES W. ELY, JR., THE GUARDIAN OF EVERY OTHER RIGHT: A CONSTITUTIONAL HISTORY OF PROPERTY RIGHTS 26 (1992) (quoting constitutional convention delegate Arthur Lee of Virginia) (internal quotation marks omitted).
352. See Lucas v. S. C Coastal Council, 505 U. S. 1003, 1024 (1992) ("The transition from our early focus on control of noxious uses to our contemporary understanding of the broad realm within which government may regulate without compensation was an easy one, since the distinction between harm-preventing and benefit-conferring regulation is often in the eye of the beholder." (internal quotation marks omitted));
353. Miller v. Schoene, 276 U. S. 272, 279 (1928) ("[T]he state was under the necessity of making a choice between the preservation of one class of property and that of the other wherever both existed in dangerous proximity.... When forced to such a choice the state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public").
354. Miller, 276 U. S. at 280 ("We need not weigh with nicety the question whether the infected cedars constitute a nuisance according to the common law; or whether they may be so declared by statute.");
355. see also Goldblatt v. Town of Hempstead, 369 U. S. 590, 593 (1962) (stating in case upholding challenge to ordinance prohibiting future mining at a quarry that it was not of controlling significance "that the use prohibited is arguably not a common-law nuisance");
356. Reinman v. City of Little Rock, 237 U. S. 171, 176 (1915) (holding in case rejecting challenge to ordinance barring operation of existing livery stable that "the argument that a livery stable is not a nuisance per se... is beside the question" and the only limitation on the municipal power was that the "power [could not be] exerted arbitrarily, or with unjust discrimination").
357. See, e.g., EPSTEIN, TAKINGS, supra note 35, at 36 ("On Lockean principles the government stands no better than the citizens it represents on whether property has been taken, so a simple test determines, not the ultimate liability of the government, but whether its actions are brought within the purview of the eminent domain clause.");
358. see also Penn Cent. Transp. Co. v. New York City, 438 U. S. 104, 145 (1978) (Rehnquist, J., dissenting) (arguing that historic preservation ordinance preventing building above a certain height wrought a taking because the ordinance did not prohibit a nuisance);
359. cf. Lucas, 505 U. S. at 1029 (holding that where a restriction wipes out all economic benefit of land the limitation demands compensation unless it inheres in the title of the land via nuisance or other common law principles).
360. Joseph William Singer, The Reliance Interest in Property, 40 STAN. L. REV. 611, 653 (1988).
361. GREGORY S. ALEXANDER, COMMODITY AND PROPRIETY: COMPETING VISIONS OF PROPERTY IN AMERICAN LEGAL THOUGHT 1776-1970, at 1-2 (1997);
362. Carol M. Rose, Property as Wealth, Property as Propriety, in NOMOS XXXIII: COMPENSATORY JUSTICE 223, 223-41 (John W. Chapman ed, 1991).
363. See supra notes 114-36 and accompanying text.
364. Kaiser Aetna v. United States, 444 U. S. 164, 179 (1979).
365. ECHEVERRIA & HANSEN-YOUNG, supra note 72, at 8-9, 17-21 (providing examples of the chilling effect that Florida and Arizona prospective compensation laws have had on passage and implementation of land use restrictions).
366. Cf. Heller & Krier, supra note 35, at 1006-09 (suggesting that in some cases a general distribution rather than specific distribution to the harmed individuals may be the best way to achieve deterrence).
367. See, e.g., Kelo v. City of New London, 545 U. S. 469, 521-23 (2005) (Thomas, J., dissenting).
368. Compare City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U. S. 188 (2003) (holding defendant city was entitled to summary judgment on claim that by first enacting ordinance permitting building of low income housing complex, then revoking ordinance after voter-led initiative, city violated Fourteenth Amendment), with Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926 (2d Cir.), aff'd, 488 U. S. 15 (1988) (holding that zoning plan limiting multiunit housing to largely minority neighborhoods had disparate impact in violation of the Fair Housing Act), and Dews v. Town of Sunnyvale, 109 F. Supp. 2d 526 (N. D. Tex. 2000) (holding that low-density zoning plan had illegal disparate impact against minorities and was motivated by discriminatory intent).
369. Justice Kennedy has suggested more stringent review along these lines for improper influence in eminent domain for economic development. Kelo, 545 U. S. at 493 (Kennedy, J., concurring);
370. see also FARBER & FRICKEY, supra note 173, at 72 (arguing that public choice theory suggests there should be a "safe harbor" for governments against takings challenges where the action burdens a powerful and well-defined group to provide a diffuse societal benefit).
371. Such a solution may well, of course, fail to address the concentration of low-income voters in particular municipalities but would both make communities bear the costs of their exclusionary decisions and provide an effective substitute for property taxes for higher density locales.
372. Serkin, supra note 215, at 742;
373. see also Michelman, supra note 35, at 1167.
374. Pa. Coal Co. v. Mahon, 260 U. S. 393, 415 (1922).
375. See Penn Cent. Transp. Co. v. New York City, 438 U. S. 104, 130, 136 (1978).
376. See, e.g., id. at 139-40 (Rehnquist, J., dissenting) (distinguishing between landmark law and zoning laws whose burdens were justified by an average reciprocity of advantage);
377. EPSTEIN, SUPREME NEGLECT, supra note 35, at 99-100 (distinguishing between regulations that impose disproportionate burdens on a few and so demand compensation and those that impose reciprocal burdens and benefits and presumptively do not require compensation).
378. Perm Cent., 438 U. S. at 140.
379. Lucas v. S. C. Coastal Council, 505 U. S. 1003, 1017 (1992) (quoting Penn Cent., 438 U. S. at 124);
380. see, e.g., Pa. Coal, 260 U. S. at 413 ("Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.");
381. EPSTEIN, SUPREME NEGLECT, supra note 35, at 99-100.
382. See, e.g., Palm Beach Isles Assocs. v. United States, 208 F.3d 1374 (Fed. Cir. 2000) (holding that denial of permit to fill fifty acres of wetlands and lake bed from original 311-acre parcel was a taking unless subject to a navigational servitude);
383. Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994) (holding that federal government took property by denying right to fill last 11.5 acres of 250-acre development);
384. Palazzolo v. State, 746 A.2d 707, 709-10 (R. I. 2000), rev'd, 533 U. S. 606 (2001) (describing original purchase of larger tract in 1959 and sale of many of its upland parcels by 1961).
385. See OR. REV. STAT. §§ 308A.50-.128 (2007) (farmland taxation);
386. OR. REV. STAT. 321.257-287 (2007) (forestland taxation).
387. Penn Cent., 438 U. S. at 122.
388. Palazzolo, 746 A.2d at 715.
389. Jeremy Paul, The Hidden Structure of Takings Law, 64 S. CAL. L. REV. 1393, 1396 (1991).
390. See, e.g., id. at 1396-97 (describing longstanding judicial consensus that supports "broad governmental authority to adjust the benefits and burdens of economic life" and "commitment to ad hoc factual inquiry");
391. Joseph William Singer, The Ownership Society and Takings of Property: Castles, Investments, and Just Obligations, 30 HARV. ENVTL. L. REV. 309, 327-28 (2006) (describing the years since Lucas v. South Carolina Coastal Council as ones in which "the heart of regulatory takings law seems to have been taken over by the investment or 'justified expectations' model").
392. 505 U. S. 1003 (1992).
393. Michael C. Blumm & Lucus Ritchie, Lucas's Unlikely Legacy: The Rise of Background Principles as Categorical Takings Defenses, 29 HARV. ENVTL. L. REV. 321, 322 (2005) (arguing that Lucas has undermined nonwipeout regulatory takings claims by establishing that background principles of property law may undermine the owner's expectations of use).
394. See, e.g., Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U. S. 302, 343 (2002) (Rehnquist, C. J., dissenting) (arguing that moratorium on construction while considering lake preservation plan constituted taking);
395. Penn Cent., 438 U. S. at 139 (Rehnquist, J., dissenting) (arguing that historic preservation ordinance preventing substantial use of air rights of building constituted taking).
396. Jacobs, supra note 36, at 2.