Journal of Environmental Law & Litigation : Vol. 26, no. 1 (Spring 2011)

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Browsing Journal of Environmental Law & Litigation : Vol. 26, no. 1 (Spring 2011) by Author "Blodgett, Abigail D."

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    Journal of Environmental Law & Litigation : Vol. 26, No. 1, p. 259-286 : Lessons from Oregon’s Battle over Measure 37 and Measure 49: Applying the Reserved Powers Doctrine to Defend State Land Use Regulations
    (University of Oregon School of Law, 2011) Blodgett, Abigail D.
    Part I provides a brief introduction to Oregon’s expansive land use system. Part II then discusses the revolt against Oregon’s system that resulted from the state’s approach to private land use regulation. One way that voters expressed their frustration towards state land use regulations was by passing Measure 37. However, the public quickly realized the massive ramifications associated with Measure 37 and passed Measure 49. Part III explores both Citizens for Constitutional Fairness v. Jackson County decisions, introduces the Contract Clause of the United States Constitution, and describes how the district and appellate courts applied the Contract Clause to formulate their conclusions. Citizens I concluded that the land use regulation waivers granted pursuant to Measure 37 were binding, irrevocable contracts that could not be subsequently altered by Measure 49, while Citizens II interpreted these waivers to be fully revocable. Finally, Part IV discusses the reserved powers doctrine as alternative grounds for limiting the scope of Measure 37 and similar state initiatives across the country. The reserved powers doctrine, a common law tool crafted by the Supreme Court of the United States to protect a state’s ability to enact legislation necessary to preserve the public welfare, allows a state to modify or rescind existing contracts that interfere with its ability to exercise essential sovereign responsibilities. Since enacting legislation that ensures proper land use is an essential state responsibility, the reserved powers doctrine is a powerful, yet unexplored, method for protecting important state land use regulations—and ultimately, the public interest.
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