An Important Difference Between the 2004 Oregon Eminent Domain Initiative and Proposition 90

As I previously wrote, Proposition 90’s complexities regarding regulatory takings have led to doubt and confusion, even among some supporters.  Some opponents have pointed to all the lawsuits that have resulted from Oregon’s eminent domain law that passed in 2004.

However, there is a crucial difference between Proposition 90 and Oregon’s 2004 law as Roger Pilon recently pointed out in an editorial in the LA Times:

In some respects, the states with measures on the November ballot are taking their cue from Oregon, which for more than 30 years had the most restrictive statewide land use regulations in the nation.  Fed up with the restrictions, in 2004 voters overwhelmingly passed a retroactive measure that requires the relevant agencies to either compensate owners for their losses or waive the restrictions.  Not surprisingly, most have chosen the latter course.

Unlike Oregon’s measure, however, California’s Proposition 90 is not retroactive.  When vocal opponents scream, therefore, that it amounts to a raid on the taxpayers, they are wrong in both theory and fact.  Wrong in theory becauseit hardly counts as a ‘raid’ to make the public pay for the goods it wants.  Wrong in fact, because the Oregon experience shows that almost all the claims filed to date are for past restrictions.  Once a fair regime is in place, governments think twice before they impose new restrictions on owners, knowing that the taxpayers are going to have to pay for the goods thus acquired.