October 22, 2005
The clock for processing Measure 37 claims at the state level is expected to be stilled by court action within the next three weeks.
For up to two years the hands on that clock could be frozen as battle lines are drawn in the halls of Oregon’s Supreme Court.
Meanwhile, debate wages across the state over last week’s ruling in Marion County Circuit Court that Measure 37 is unconstitutional.
Judge Mary James determined that Measure 37 granted special privileges and immunities to one class of citizens, impaired the government’s “police powers” to impose regulations for the public health and safety, suspended laws and violated the separation of powers.
The new law went into effect last December after being approved by a 61 percent supermajority of voters statewide.
Measure 37, which passed in Hood River by a 53 percent margin, requires government agencies to compensate landowners for regulations that devalue property by taking away its use. In lieu of compensation, the agency is given the option to remove the ”offending” restriction.
1000 Friends of Oregon, which prevailed in the Marion County lawsuit, will fight to have the Oct. 14 decision by Judge James upheld. The conservation group contends that Measure 37 landowners are given special development rights that are denied to other property holders.
“The essense of our land-use laws is to promote shared prosperity. We want to address any unfairness in a responsible way without making some people rich through a windfall.” said Daniel Eisenbeis, Friends staff planner.
Oregonians in Action (OIA), a property rights advocacy group, plans to appeal James’ verdict to the state’s highest court. OIA argues that Measure 37 restores fairness because, for more than 30 years, some citizens have gained a viewshed or other valuation advantage through the downzoning of a neighbor’s property.
“If a schoolyard bully takes my dollar away but the principal makes him give it back, am I making a windfall?” asked Ross Day, OIA legal affairs director.
Meanwhile, Lane Shetterly, director of the state Department of Land Conservation and Development, said the 180 day timeline to process Measure 37 claims is likely to be suspended indefinitely. However, he does not know if that will harm or hurt government agencies who must make decisions on claims within a 180 day period or possibly incur damage costs.
Shetterly said the state will be prohibited from reviewing claims 14 days after the final judgement is entered into the record by Marion County Court Judge Mary James.
“We expect that once the judgement becomes effective more likely than not everything will go on hold,” Shetterly said.
The Supreme Court will have to decide how to restart the Measure 37 clock if the lower court ruling is overturned, according to Shetterly.
At this point, he said, no one knows whether the time period will have run out, leaving government agencies in jeopardy of being sued, or if the clock will just start ticking where it left off.
And then there is the possibility that Measure 37 could be thrown out.
That will raise many other questions, said Shetterly, such as whether filing fees for claims should be reimbursed.
In addition, many jurisdictions have become leary of enforcing land-use regulations because these actions could later become subject to a Measure 37 claim.
“I don’t think anyone has any sense at this point how this is all going to play out,” he said. “And, given what’s at stake, we do hope the Supreme Court will expedite this.”
Eisenbeis declined to comment on “abstract” arguments concerning the pending case. He said the judge’s opinion can be read in its entirety on the 1000 Friends Web site, www.friends.org
Eisenbeis said 1000 Friends is now calling upon Gov. Ted Kulongoski and the legislature to convene a special session. He said its been 32 years since the passage of Senate Bill 100, which set up Oregon’s centralized land-use system. And it is time to review what is working and what is not. According to Eisenbois, the organization is also very supportive of Kulongoki forming a “Big Look” task force to make recommendations for change.
“Oregonians, when asked, give support for land-use planning and protection,” said Eisenbeis.
“It’s very important the taskforce not get bogged down in particulars but look at the demographics facing the state and the tools that we’re going to need to build better communities. And protect the viewscapes that make Oregon such a wonderful place to live.”
The challenge to Measure 37 was brought by 1000 Friends, which gained standing to make arguments because its membership would be affected by an inability to protect resource lands.
The lead plaintiff in the lawsuit was Sen. Hector MacPherson, the original sponsor of SB100, and farm bureaus from Linn, Washington, Marion and Yamhill counties.
A group of private landowners was also named as plaintiffs.
Day said the court’s decision is “built upon a house of cards” because it uses “hypothetical and undefined” legal tests. For example, he said James ignored research on the police power question that had been explored by retired Oregon Supreme Court Justice Hans Linde, professor of constutional law.
In a 1970 article on the subject, Linde determined that police power did not exist in the state’s constitution and these arguments should be “shunned” and “completely abandoned.”
Instead, Day said James justified her conclusion by saying that Measure 37 forced public entities to choose between regulating and paying citizens. As an example, she said the Department of Environmental Quality would have to choose between enforcing vehicle emission regulations or paying citizens whose cars did not meet air quality standards for the cost to repair their cars.
Or, school attendance policies might not be enforceable unless parents were paid for the costs of clothing, food and other expenses associated with educating their child. Day has written a summary in rebuttal of James’ decision that is posted on OIA’s Web site at www.oia.org
“If this ruling is upheld on appeal I think it calls into question all land-use planning as a whole,” said Day. “All land-use laws create a special class of people. The whole idea of SB100 was to help farmers buy land at a cheaper price. Unfortunately, it had the effect of devastating Oregon’s economy and placing an unfair burden on farmers.”
He views it as ironic that 1000 Friends might have actually been the cause of Measure 37 and its strong passage.
He said the group, which pushed SB100 through the halls of Salem, did not follow through on a provision that called for a committee to develop a compensation plan.
According to Day, even three decades ago, legislators envisioned that Oregon’s restrictive laws would have a detrimental effect on some landowners.
“This was touted as a statewide land-use planning system that would become a ‘model’ for the rest of the nation – but no one else wants it,” said Day.
“Maybe if they had put more thought into what they were doing to people in their zeal to protect the land we wouldn’t be here today.”
The Marion County case will bypass the Court of Appeals and be heard by the Supreme Court because it concerns an issue with statewide ramifications.