Posted By: Dwight Merriam, Partner, Robinson & Cole LLP
I guess after tilling the fields of land use law for 30 years and having been a planner for 40, it’s little wonder that I find myself whining: “I said it before and I’ll say it again…”
In most cases when we try to legislate in areas of complex constitutional and common law, we will end up causing more trouble than it’s worth. Last week, the United States District Court for the District of Oregon handed down a decision the property rights advocates love, government side supporters think is plainly wrong, and the Ninth Circuit will likely have an opportunity to mess with. Citizens for Constitutional Fairness v. Jackson County, 2008 U.S. Dist. LEXIS 92049, http://www.oia.org/CFCFv.JacksonCounty.pdf. I have already filed it under “I Told You So.”
Oregon property rights advocates in 2004 pushed through a ballot initiative, Measure 37, with surprisingly broad support. The law permits property owners to claim compensation from state and local government where their property value has been reduced by land-use regulations. In the alternative, government may waive the regulations.
The most recent numbers I could find from the state website indicate that as of the end of last year 6,857 Measure 37 claims have been made. The total compensation claims as of that time total a nice round $20 billion. http://www.oregon.gov/LCD/MEASURE37/summaries_of_claims.shtml. I don’t believe that any money has actually been paid by government; all but one of the claims settled to date have been by waiver. http://blog.oregonlive.com/breakingnews/2007/09/prineville_makes_oregons_first.html.
The plain fact is that virtually everyone on both sides of the fence and those perched on top have found Measure 37 to be unworkable to some degree, essentially as I and many others predicted from the get-go. Early on, even the Oregon chapter of the American Planning Association expressed an interest in finding a middle ground with some remedial legislation.
In 2007, Oregon voters passed another ballot initiative, Measure 49, with a 62% majority, exceeding the majority that enacted Measure 37 three years before. Measure 49 had the effect of overturning and otherwise changing much of Measure 37. Principally protected under Measure 49 are high-value farmlands, forest lands and groundwater restricted lands. Local regulations prohibiting commercial and industrial developments on lands reserved for homes, farms, forests and other uses became exempt from the new compensation scheme.
In the Jackson County case the plaintiffs had filed timely claims against the county under Measure 37. The Board of County Commissioners, because they didn’t have the money to pay compensation, instead waived enforcement of the zoning changes. After the adoption of Measure 49 the county said it would not honor the waivers. The question: can Measure 49, extinguish Measure 37 waivers granted at the local level where there might be a question as to whether an additional state waiver is required?
The District Court held that “Measure 37 waivers are binding, constitutionally protected contracts between plaintiffs and Jackson County.” Judge Owen Panner further held: “To avoid an interpretation of Measure 49 that would violate plaintiffs’ rights under the Contract Clause, I conclude that Measure 49 does not apply to plaintiffs’ Measure 37 waivers.” The judge then threw on a pair of suspenders with that belt and held in the alternative that “Measure 37 waivers are final quasi-judicial orders, and that Measure 49 cannot rescind the waivers without violating separation of powers.”
The property rights advocates in Oregon, chief among them Oregonians in Action, are delighted with the ruling. http://oia.org/M37ClaimsRestored.htm. Edward Sullivan of Portland, Oregon, an IMLA member who The Oregonian newspaper describes as “one of Oregon’s leading land-use experts” (he’s actually one of the country’s leaders), says the ruling doesn’t apply to Measure 37 claims where state action is required. Eric Mortenson, “Jackson County land-use ruling could have broader consequences: the win upholding landowners’ Measure 37 rights may inspire suits in other counties,” The Oregonian, November 14, 2008. CLICK HERE for the article.
The questions now are: will other suits follow in other counties and will Jackson County appeal to the Ninth Circuit. I just checked the odds makers in Vegas and “Yes” is the heavily favored answer to both.