Topping 2006 ballots: eminent domain

In another case, a pumice mine and power plant may be built inside Newberry National Volcanic Monument in Oregon if one longtime landowner gets his way.

"If putting up mining operations in national monuments seems too bizarre to contemplate, look again at Oregon because that's what [voters elsewhere] could get," says Bob Stacey, executive director of 1000 Friends of Oregon, a land-use watchdog group.

Supporters of laws like Measure 37 cite the Constitution's Fifth Amendment, which prohibits taking private property for public use without just compensation. Land-use restrictions, they say, unfairly "take" part of the property's value without paying the owner.

"By not compensating landowners ... you are essentially forcing a minority of landowners – the private property owners – to bear the cost of providing [a] public benefit," says Leonard Gilroy, a senior policy analyst with the libertarian Reason Foundation in Los Angeles.

In recent decades, land-use restrictions have burgeoned in many states as strategies to manage growth. Oregon stood at the forefront of that movement before Measure 37. Mr. Gilroy says the measure is an indication that urban planning isn't sustainable without incorporating property rights into the policy framework.

"Measure 37 was passed by the Oregon voters who still strongly support their state's system of land-use regulation. They've just realized that it's had these severe economic consequences on private property owners ... [and] they wanted to rebalance the equation," says Gilroy.

But critics of laws like Measure 37 argue that they create profound imbalances by putting the rights of a few developers over those of the great majority: homeowners. Zoning rules and other land-use protections, they say, protect the value of homes.

The court decision that evicted Susette Kelo from her Connecticut home has helped campaigners connect with voters.

"As soon as I brought up the little old lady in New London, Connecticut, it just clicked with everybody," says Eric Dondero, a libertarian Republican consultant from Texas who gathered signatures for Montana's 'Kelo-plus' ballot measure.

He received payments from an outside group chaired by New York City real estate magnate Howie Rich. "But there were a lot of people that wanted to read the whole wording and I said, 'Here it is.' And they would read everything."

Mr. Dondero says the regulatory takings aspect wasn't controversial for any of the voters with whom he interacted. But he did meet stiff resistance, he says, from local officials and other operatives whom he claims tried to physically block and intimidate signature gatherers.

Countercharges of signature-gathering fraud prompted a Montana judge to throw out the property rights ballot measure. Dondero denies that there were irregularities from his camp, noting also that out-of-state money was used to gather signatures for liberal measures. The case is under appeal.

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