In November 2006 Oregon voters approved Measure 39 that prohibits the use of eminent domain to take private property on behalf of other private parties, one of many initiatives adopted in response to the U.S. Supreme Court’s decision in Kelo v. City of New London, 545 U.S. 469 (2005) (p. 725). On November 6, 2007, Oregon voters approved Measure 49, which modifies some of the provisions of Measure 37 (p. 731). Measure 49 prohibits subdivisions and limits developments on high-value farmland, forestland and groundwater-restricted lands to three homes. It also specifies that claimants under Measure 37 may not recover premised on developments that would violate current zoning laws restricting commercial and industrial development. On remand from the Rhode Island Supreme Court, the lawsuit that produced the Supreme Court’s decision in Palazzolo v. Rhode Island (p. 752-760) was dismissed in an unpublished opinion by the Rhode Island Superior Court. The court concluded that “background principles of state law limited the property rights acquired by [Palazzolo] and SGI, his predecessor in title. Plaintiff's proposed residential development of the site would constitute a public nuisance under Rhode Island law. Plaintiff's proposed use of the property was, accordingly, not a part of the ‘bundle of rights’ acquired when he, and before him, SGI, obtained title to the subject parcel. Thus, the regulations complained of have not resulted in a taking under the Fifth Amendment.” Palazzolo v State, 2005 WL 1645974 (R.I. Super.). While Palazzolo complained that he had been “left with crumbs” the court noted that “despite wishful thinking on Palazzolo’s part, he paid a modest sum to invest in a proposed subdivision that he must have known from the outset was problematic at best.” Thus, he had no reasonable expectation to be able to build a large subdivision. The court concluded by noting that “Constitutional law does not require the state to guarantee a bad investment.” |
Baltimore, MD 21201-1786