Takings Initiatives Accountability Project

Published — October 10, 2006 Updated — May 19, 2014 at 12:19 pm ET

The ‘Reason’ Road Map

Libertarian foundation laid out a plan for cloning Oregon experiment


When Measure 37 passed handily in Oregon two years ago, property-rights activists throughout the nation were euphoric — and, apparently, eager to push the experiment forward.

Although the full effect of Oregon’s ballot initiative won’t be known for years, property owners in the state have filed thousands of claims under Measure 37, seeking compensation because of regulations they say devalue their land. Lacking the funds to pay these claims, state and county officials have been waiving the rules instead.

The Reason Foundation, a libertarian think tank based in Los Angeles and the publisher of Reason magazine, published a 58-page paper in April 2006 outlining how Measure 37 could be “exported” to other states. The organization’s “how-to guide,” as its news release characterizes it, seems to have met with some success: Four Western states have regulatory takings initiatives similar to Measure 37 on their fall ballots.

“Citizens, activists, and elected officials across the nation can look to Measure 37 as a model for regulatory reform,” the foundation’s guide says, “as they continue the push to protect private property rights from the expanding reach of government and prevent landowners from being forced to bear the hidden costs associated with government regulation.”

The report’s author, Leonard C. Gilroy, a senior policy analyst at the foundation, initially agreed to speak with the Center for Public Integrity, but ultimately did not grant an interview. Gilroy is described on the organization’s Web site as a certified planner who researches “housing, urban growth, privatization, and government reform issues.”

Other studies published by the Reason Foundation have supported toll-funded highways and the privatization of prisons and opposed universal preschool. According to its Web site, the organization “advances a free society by developing, applying, and promoting libertarian principles, including individual liberty, free markets, and the rule of law.”

In his report, Gilroy pointed out that 24 states have initiative processes that could be used to seek constitutional or statutory changes. By his appraisal, Measure 37 passed in a state known for its strict land-use regulations because supporters:

  • Put a human face on the ballot initiative, notably by spotlighting an elderly woman who had been barred from subdividing her long-held land. This, Gilroy observed, “resonated strongly with voters.”
  • Stayed on message, using opinion polling to develop a simple theme: Regulatory takings aren’t fair, and your property is at risk.
  • Formed partnerships with such organizations as farm bureaus and homebuilder associations, which tend to support property rights.

In the report, Gilroy characterized Measure 37 as a “major advance for the national property-rights movement” and an important victory in the crusade against “heavy-handed land use regulation.” Not everyone, however, shares his view.

The Oregon Department of Land Conservation and Development has been inundated with Measure 37 claims, says its director, Lane Shetterly, who suspects that many people who voted for the initiative didn’t understand its ramifications.

“My sense is that most folks … were probably thinking more of the right of a farmer to build a house on his farm, which sounds reasonable,” Shetterly said in an interview with the Center. “I don’t know that most voters expected the extent of claims that we are seeing for subdivisions and major partitions of farm and forest lands.”

Kristina Wilfore, the executive director of the Ballot Initiative Strategy Center, says the regulatory takings initiatives pending in Arizona, California, Idaho, and Washington “have nothing to do with protecting homes or neighborhoods but are more about changing the laws and the structure of state government so that wealthy developers can come in and build casinos and build Wal-Marts and build — who knows? — pig farms next to houses and in areas that have, for years, controlled growth.”

Like voters in Oregon two years ago, those in the four states with initiatives on the ballot this year may not know “what this agenda is, what its real intent is and [what] the effect of takings policy will be,” says Wilfore, whose organization is advising “no” campaigns in those states. Because of Measure 37, she says, Oregon is on the verge of destroying “30 years of smart-growth planning.”

In his report, Gilroy called such fears “overblown,” noting that “while some large development claims have been filed, many of the approved land-use changes to date would simply allow owners to build one or two residences on currently zoned farmland.”

His recommendation to property-rights forces: Press on.

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