Edward J. Sullivan

Oregon's Measure 37: Crisis and Opportunity for Planning

It was a clever political stroke. For the second time, opponents of the Oregon planning system convinced the voters of the state to pass an initiative (Measure 37) that appears to cripple a planning system that had withstood three previous frontal assaults. The objective was accomplished not by another frontal assault, but by putting to the voters a proposition promising government payments when certain land use regulations reduce land values. By using the term “just compensation” in Measure 37, the drafters identified themselves with payment for property actually appropriated by state or local governments for roads, sewer plants, or other public works. By keeping “on message” with a theme based on “fairness” and concentrating on anecdotal inequities, especially tales of grandmothers unable to realize their fiscal expectations, the campaign rolled to a 61-to-39 percent victory in the November 2004 election.

Protecting Our Farmlands: Lessons from Oregon 1961-2009

Abstract For almost 50 years, Oregon has protected its agricultural economy and farmland base through a combined strategy of tax incentives and development restrictions. This effort has evolved from a general voluntary approach to one that has a strong regulatory component. The program began as a means of providing tax incentives to preserve farmland; agriculture then constituted the largest part of the state’s economy. However, over the years, these tax incentives were combined with the state’s comprehensive land use planning system and together they have been used to prevent sprawl and extensive nonresource-related rural development, and to reinforce compact urban growth as a highly effective means to protect farmland.

A Taste of Ashes—The MacPherson Decision and the Future of Oregon's Planning Program

On February 21, 2005, the Oregon Supreme Court handed down its decision in MacPherson v. Dept. of Adminis-trative Services (2006 OR LEXIS 104). In its decision, the Oregon Suprem Court reversed a trial court decision and upheld Oregons Measure 37 against a series of facial constitutional challenges under the state and federal constitutions. The hopes of the plan-ning and environmental communities that skillful lawyering might save the states planning program from the bullet of a voter-approved initiative that would damage that programsome say irreversibly, came to an end.

Substantive Due Process and American Planning Law

Certain jurisprudence of the Supreme Court continues its profound, and perhaps baneful, effect on American planning law. That jurisprudence relates to the invented constitutional doctrine of substantive due process, which remains popular among lawyers attacking and defending land use actions. This article analyzes that doctrine, attempts to demonstrate its inadequacies, and suggests alternatives to its use.

The World Turned Upside Down: Payment for Regulation under Oregon's Measure 37

Abstract On November 2, 2004, Oregon voters approved Measure 37 by a margin of 60 to 40 percent, making Oregon the first state in the country in which state, regional, and general purpose local governments are obligated to pay for the lowering of property values that results from the adoption of certain land use regulations. Measure 37 follows on the heels of Measure 7, an initiative to add a similar compensation requirement to the state constitution, which passed in 2000 by a 54 percent vote, but was overturned by the Oregon Supreme Court for violating the states separate vote requirement for constitutional amendments.

Too Clever for Words: The Demise of Oregon's Measure 7

Abstract On October 4 2002, the Oregon Supreme Court upheld invalidation of a voter-approved measure that would have required government payment for most regulations that had the effect of devaluing property. The court held that the measure, is presented, violated those provisions for amending the Oregon Constitution requiring separate votes on each state constitutional provision amended unless the amendments were “closely related.” By excepting certain disfavored uses—such as bars, casinos, and strip clubs—from the payment scheme, the court ruled that the drafters of the measure impermissibly implicated other rights protected by the state constitution. Thus ended a journey that had begun with an effort to gain government payments for regulation and ended with a determination that negating that payment for uses that involved expressive conduct undermined the measure.

Measure 7 and the Politics of Land-Use Planning in Oregon

Abstract In November 2001, in an election with a relatively large turnout, Oregon voters approved an initiated measure that appeared to be inconsistent with that states reputation as a leading planning state. Measure 7 would have subjected state or local governments to a 90-day claims process (see page 5) for regulations that had the effect of reducing property values. If the regulation remained at the end of the 90 days and was found to reduce property values, the state or local government would be liable for compensation for that reduced value. The effects of the measure are unknown, and may be unknowable because, one day before the measure was to be certified as an amendment to the state constitution, a trial court issued a preliminary injunction against certification and, more recently, issued an opinion making the preliminary injunction permanent.

The Renaissance of Comprehensive Planning: The Oregon Case

Abstract During the last decade, a popular pastime among planners and others has been to discredit the comprehensive plan and the process by which such plans are developed. Advocacy planning, strategic planning, policy planning, social planning, etc., were suggested alternatives to the traditional focus of planning-the comprehensive plan, The reasons for criticism were varied, but basically they boiled down to the fact that plans often ended up on shelves collecting dust. Plans failed as continuing guides to a wide variety of decisions since they were static end-state conceptions a supposedly better world. Plans and their associated regulatory devices were found inadequate to control or limit the effects of the market-plans were simply ineffective tools. So the searcH began for alternatives or modifications to the comprehensive plan.