Measure 37 (2004)

Measure 37 (2004)
Name	Measure 37 (2004)
Year	2004
Jurisdiction	Oregon
Result	Passed
Vote	535,340 (61%) Yes; 340,585 (39%) No

Measure 37 (2004) was an Oregon ballot initiative that changed Oregon Constitution-era land use and Takings Clause-related practice by creating a claims process for property owners to seek compensation or waivers for land use regulations. The measure provoked national attention involving figures and institutions such as Arnold Schwarzenegger, George W. Bush, National Rifle Association, Environmental Defense Fund, and the American Farm Bureau Federation, and generated litigation that reached state courts and engaged entities including the Oregon Supreme Court, Multnomah County, Lane County, and advocacy organizations such as the Pacific Legal Foundation.

Background and passage

Supporters framed the measure against a backdrop of disputes over Oregon Land Use Program, Senate Bill 100 (1973), and zoning actions affecting parcels from Clackamas County to Jackson County. Backers included coalitions with ties to Oregon Farm Bureau Federation, Oregon Cattlemen's Association, and national groups like the Goldwater Institute and Pacific Legal Foundation. Opposition drew on alliances among Sierra Club, The Nature Conservancy, Oregon Environmental Council, local governments including City of Portland and Multnomah County, and public figures such as John Kitzhaber and Ted Kulongoski. Campaign financing and advertising involved political actors including Don McIntire, Kevin Mannix, and business interests linked to Timber Companies and agricultural stakeholders, leading to debates in outlets like the The Oregonian, Willamette Week, and national media such as The New York Times.

Provisions of Measure 37

The measure required counties and municipal authorities to notify property owners that a land use regulation enacted after acquisition could trigger either compensation or a waiver if it reduced fair market value. It allowed owners to file claims with local jurisdictions; if governments did not pay within two years, they were required to waive enforcement for the claimant. This intersected with constitutional doctrines derived from the Fifth Amendment and state interpretations influenced by precedents from cases involving entities such as the U.S. Supreme Court and rulings cited by the Oregon Supreme Court. The text altered interactions among zoning, clean water protections implemented under statutes like the Clean Water Act and habitat protections enforced with support from U.S. Fish and Wildlife Service and local land use boards.

Legal challenges and court rulings

Immediate litigation challenged procedural and substantive elements, with cases heard by trial courts and appeals to the Oregon Supreme Court. Key issues included whether the measure created a new private right enforceable against counties and whether it impermissibly required payments from state funds, implicating fiscal doctrines similar to disputes before the U.S. Court of Appeals for the Ninth Circuit in related takings contexts. Parties included litigants from Clatsop County, Benton County, Washington County, the Oregon Attorney General's office, and nonprofit litigants like the American Planning Association and Audubon Society. Rulings developed doctrines on retroactivity and the scope of waivers, and subsequent remands produced guidance for local land use decision-making and compensation accounting.

Implementation and impacts

Implementation led to thousands of claims across diverse counties including Deschutes County, Umatilla County, Klamath County, and Marion County, affecting agriculture, forestry, and development projects near cities such as Eugene, Salem, and Bend. Economic analyses from entities like Oregon State University and policy shops such as the Urban Land Institute documented effects on property values, regulatory certainty, and municipal budgets. Environmental organizations reported impacts on habitat conservation programs associated with Oregon Department of Fish and Wildlife and wetland protections coordinated with the U.S. Army Corps of Engineers, while developers and landowners engaged consultants with ties to the National Association of Home Builders and law firms experienced in land use litigation.

Political and public reaction

The measure intensified statewide political debate involving governors Ted Kulongoski and John Kitzhaber, legislators in the Oregon Legislative Assembly, and ballot strategy by campaign committees such as Oregonians for Food and Shelter and Coalition for Oregon's Future. Public opinion, reflected in polling by organizations like DHM Research and reporting in media outlets such as Portland Tribune and Oregon Public Broadcasting, showed rural–urban divides with pronounced support in counties like Malheur County and opposition in metropolitan Portland. National commentators and interest groups including the Heritage Foundation and Center for American Progress weighed in, linking the measure to broader debates over property rights, environmental regulation, and land conservation policy.

Repeal and Measure 49 (2007)

Political backlash and practical complications culminated in the 2007 passage of a follow-up ballot measure that curtailed aspects of the 2004 initiative by restricting large-scale development claims and clarifying compensation mechanisms. That 2007 initiative engaged many of the same actors—state officials, advocacy groups such as the Environmental Defense Fund and American Planning Association, and county governments—and produced revised standards for rural land use review in Oregon. The replacement effort reflected legal theory debates tied to precedents from the U.S. Supreme Court and state jurisprudence, and altered implementation practices used by counties like Josephine County and Coos County.

Category:Oregon ballot measures Category:2004 ballot measures