Background

Over the last decade, Congress has debated a series of takings or property rights bills, which would, in various ways, change the standards and procedures for assessing or asserting takings challenges to local, state, or federal government actions. To date, none of these proposals has been enacted into law. But the controversy continues today, as the notion of takings is taken to a greater level. Although the debate continues over whether the Endangered Species Act (ESA) threatens private property rights, activists believe the next threat to private property rights are regulations to curb the spread of invasive species. Internationally, Free Trade Agreements threaten to open states to litigation from the international community. Many state legislatures have similarly taken up the debate, with over half of the states actually adopting some kind of takings law.

In the 1990s, takings legislation was debated in virtually every state legislature. About half the states have actually adopted some type of takings law. Most of these measures are largely symbolic and have had minimal practical impact, simply reinforcing the constitutional requirements, not redefining them, and establishing only loose procedural requirements.

In many other states, takings bills have been defeated outright. In the mid-1990s, there were two prominent ballot measure contests that led to the defeat of takings proposals. In Arizona, following the enactment of an assessment-type law, a coalition of groups succeeded in placing repeal of the law on the state ballot in November 1994. By a vote of 60% to 40%, Arizona voters rejected the takings law. Similarly, in November 1995, Washington State voters rejected that state’s payment-type takings law, again by a vote of 60% to 40%.

Last, but certainly not least, on November 7, 2000, Oregon voters, by a margin of 53% to 47%, adopted Measure 7, by far the most extreme takings measure adopted anywhere in the United States. An Oregon court promptly enjoined implementation of the measure, and the validity of Measure 7 under the Oregon Constitution went to the Oregon Supreme Court. Measure 7 was eventually voided by the Oregon Supreme Court because it was not fairly presented to the voters and did not meet the requirements for voter-created initiatives.

Measure 7 created a claim for payment whenever a regulatory restriction “has the effect of reducing the value of a property upon which the restriction is imposed.” It creates a right to payment if the regulation “was adopted, first enforced, or applied after the current owner of the property became the owner, and continues to apply to the property 90 days after the owner applies for compensation.” The amount of the payment is based on “the difference in the fair market value of the property before and after application of the regulation.”

Four states have statutes on the books that explicitly seek to go beyond established constitutional standards, and many other states are currently debating far-reaching takings bills in their state legislature.

For more information about takings legislation in specific states, read the State Activity Page.