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36 Envtl. L. 79 (2006)
Measure 37: Paying People for What We Take

handle is hein.journals/envlnw36 and id is 95 raw text is: MEASURE 37: PAYING PEOPLE FOR WHAT WE TAKE By STEVEN GEOFFREY GIESELER7 LESLIE MARSHALL LEWALLEN* TIMOTHY SANDEFUR- In 2004 the voters of Oregon enacted Measure 37, an initiative requiring state and local governments to compensate landowners when burdensome regulations result in decreased property values. Incredibly, an Oregon judge struck it down in October 2005, claiming, among other things, that Oregon's citizens had no right to limt the powers of their elected offlcias. This essay examines the events that led to, and resulted from, Oregon's enactment of Measure 37 In paricular, it details the doctrine of regulatory takings, advocating the position that governments can take property without physically occupying it. The essay recounts the nightm are that is Oregon s land-use apparatus, and chronicles what led the state's voters to do something about it. Finally, the essay concludes by critiquing the unfortunate decision invalidating Measure 37, with emphasis on the court's argument that citizens are powerless to linit the authority of their own legislature. I. INTRO DU CTION ...................................................................................................................... 80 I1. THE CONCEPT OF REGULATORY TAKINGS ......................................................................... 81 A. Of Form and Substance ........................................................................................ 81 B. H ow Faris too Far? ............................................................................................. 84 C The Ifiusion of Compensation .............................................................................. 88 III. MEASURE 37 (AND WHY OREGON NEEDS IT) .................................................................. 91 A. Oregon's RegulatoryNightmare ...................................... 91 *© Steven Geoffrey Gieseler, 2006. J.D. 2004, University of Virginia School of Law; B.A. 2001, University of Florida. Mr. Gieseler is a Staff Attorney at the Pacific Legal Foundation. The authors are grateful for the assistance of Pacific Legal Foundation's Program for Judicial Awareness in the preparation of this essay. © Leslie Marshall Lewallen, 2006. J.D. 2001, Seattle University School of Law; B.A. 1997, University of Washington. Ms. Lewallen is a former law clerk to Chief Justice Gerry Alexander of the Washington State Supreme Court, and Justice N. Patrick Crooks of the Wisconsin Supreme Court. Ms. Lewallen was the lead attorney for Pacific Legal Foundation in MacPherson v. Dep't ofAdmin. Servs., No. 05C10444 (Marion County Or. Cir. Ct. Oct. 14, 2005), and Crook County v ABElectors, No. 05CV0015 (Crook County, Or. Civ. Ct. Oct. 25, 2005). © Timothy Sandefur, 2006. J.D. 2002, Chapman University School of Law; B.A. 1998, Hillsdale College. Mr. Sandefur is a Staff Attorney at the Pacific Legal Foundation.

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