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Measure 37: Paying People for What We Take

26 Pages Posted: 10 Jan 2006 Last revised: 12 Mar 2008

Leslie L. Lewallen

University of Washington - Seattle University School of Law

Timothy Sandefur

Goldwater Institute

Steven Geoffrey Gieseler

Pacific Legal Foundation


For decades, landowners in Oregon have suffered under one of the most restrictive land-use regimes in the nation. Among the many ills this system fostered was a failure to compensate owners when land use restrictions resulted in a diminution of the value of their property. Property owners seeking judicial enforcement of their constitutional right to be compensated found no such protection. Therefore, in 2004 the voters of Oregon took it upon themselves to enact Measure 37, an initiative requiring state and local governments to compensate landowners where land use regulations result in decreased property values. Incredibly, an Oregon circuit judge struck down Measure 37 in October, claiming among other things that the people of Oregon had no right to limit the powers of their elected officials.

This Article examines the events that led to, and resulted from, Oregon's enactment of Measure 37. In particular, it looks at the theory behind the doctrine of regulatory takings, advocating the position that governments can take property without physically occupying it. With this theoretical baseline in place, the Article recounts the regulatory nightmare that is Oregon's land use apparatus, and recounts the steps that led the state's voters to finally do something about it in the form of Measure 37. Finally, the Article concludes by critiquing the unfortunate decision invalidating Measure 37, with emphasis on the court's argument that citizens are powerless to limit the authority of their own legislature.

Keywords: land use, property rights, takings, Measure 37, decreased property values

JEL Classification: K11

Suggested Citation

Lewallen, Leslie L. and Sandefur, Timothy and Gieseler, Steven Geoffrey, Measure 37: Paying People for What We Take. Environmental Law, Vol. 36, 2005. Available at SSRN:

Leslie L. Lewallen

University of Washington - Seattle University School of Law ( email )

Seattle, WA 98195
United States

Timothy Sandefur

Goldwater Institute ( email )

500 E. Coronado Rd.
Phoenix, AZ 85004
United States
(602) 462-5000 (Phone)
(602) 256-7045 (Fax)


Steven Geoffrey Gieseler (Contact Author)

Pacific Legal Foundation ( email )

930 G Street
Sacramento, CA 95814
United States

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