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Oregon's Measure 37
Lessons from the First Eleven Months

by Todd Myers, Director, Center for Environmental Policy
2005-14

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In November 2004, Oregon voters overwhelmingly passed Measure 37, requiring counties and the state of Oregon to pay for the value landowners lose when new zoning restrictions are put in place.  The ballot measure was approved by a margin of 60% statewide and received a majority of votes in all but one of Oregon’s 36 counties.[1]

Supporters and opponents of the Measure claimed it would change the landscape of Oregon.  Opponents predicted Measure 37 would cause “anarchy,” “chaos” and even a “nightmare.”[2]  Critics claimed that it would bankrupt the state and counties by requiring them to pay out millions of dollars in claims.

The reality, however, is that during the time it was in effect, the impact on the landscape was less than either side expected.  Although Judge Mertens James ruled the Measure unconstitutional in October 2005, its impact during the time it was in effect is instructive for those now looking to bring a version of the law to other states, including Washington.

After studying dozens of settled claims at the state and county level, we found several things.

First, the impact on Oregon’s landscape was smaller than expected, because even though many Measure 37 claims were filed, they were mostly for small, family owned plots of land. 

Measure 37 gave landowners two years to request compensation for zoning restrictions imposed since they purchased their land.  A landowner who purchased a property in 1950 could make a claim for compensation due to restrictions adopted since that time. Because corporations typically do not hold unproductive land indefinitely, very few applied for compensation. The vast majority of claims, therefore, were made by families who purchased their land as an investment or other uses.  Thus, many Measure 37 claims are for fewer than 100 acres, with many for parcels of only five to ten acres.

Second, even when these claims were approved, other land use restrictions prevented new construction that would have impacted public safety or changed the character of rural parts of Oregon.

Many zoning rules in Oregon go back decades, meaning that even when claims are approved, options are still limited. Many claims made across Oregon involve “exclusive farm use” (EFU) zoning, a restriction created in 1982 that prevents land from being subdivided below 80-acre parcels.  For rural landowners who purchased land after 1982 this means that they cannot subdivide their land into parcels smaller than 80 acres.

In other cases the rules, adopted in 1977, required any construction to be “appropriate for the continuation of the existing commercial agricultural enterprise in the area.”  Even when claims were approved, county staff noted that successful claimants were unlikely to receive the go-ahead to build subdivisions in these areas, making new construction unlikely to change the rural character of the surrounding community.

Measure 37 also created exceptions for safety and other public concerns. In one instance Habitat for Humanity was a party to a successful claim. Construction of low-income housing, however, was denied on public safety grounds because the land was located in a flood plain.[3]

Ultimately, Measure 37 seems to have been limited in its overall impact. The main benefit of the measure, however, was felt most by families whose land had been significantly devalued by years of increased restrictions.

This calls into question the complaint of Measure 37 opponents who argue that it is undemocratic because it allows some individuals to receive compensation and because their construction might negatively impact their neighbors.

The reality is, however, that Measure 37 shifts the burden of restrictions from individual landowners to the public. Without Measure 37, those who hold their land for long periods of time are punished disproportionately, and undemocratically, by new restrictions. Additionally, landowners wishing to protect the new restrictions can purchase the land of other owners or they can ask the government to pay compensation and protect the zoning rules. This is the truly democratic response, with the public bearing the cost of restricting private property for public benefit.

Still unclear, however, is how Measure 37 would have constrained governments as they looked to change zoning laws in the future.

The research results from Oregon do not imply that land reforms like Measure 37 are not needed.  While the impact on the community might be small, the benefit for individuals who had long-term investments is, in some cases, very large. 

Policy reforms like this Oregon ballot measure are really a matter of simple fairness.  After all, protecting individual property rights and investments is the primary goal of Measure 37.

As the battle over bringing a similar measure to Washington and other states heats up, it is useful to take a close look at what actually happened in Oregon.  A close examination of the first eleven months shows that there is more fiction than fact in the attacks on that law.

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