Lawsuit could stall land-use claims

Parkdale resident wants to stop county from wasting a ‘colossal’ amount of time if courts rule Measure 37 unconstitutional

December 24, 2005

Parkdale resident Scott Franke is taking legal steps to stop Hood River County from processing Measure 37 claims until the state’s highest court rules on its constitutionality.

Franke, who lives on Leasure Drive, believes he has standing to initiate a lawsuit since several nearby landowners have filed Measure 37 claims.

So, the value of his property will likely be affected by any development rights the county grants these individuals. He contends that local officials should take a hiatus from reviewing any Measure 37 requests for compensation or restored zoning.

Franke said similar lawsuits have been filed by citizens from counties across the state that were not bound by a Marion County Circuit Court ruling in October that found Measure 37 to be illegal.

Although Franke is the president of the Hood River Valley Residents Committee, he said the local conservation group is not involved in the recent litigation.

“I believe that if Measure 37 turns out to be invalid then it’s just a colossal waste of resources for the county to process these claims,” he said.

However, Oregonians in Action, the property rights advocacy group that authored Measure 37, said it would be a mistake for counties within the state to quit processing claims. Measure 37, which passed statewide in 2004 by a 61 percent margin and by 53 percent in Hood River County, sets out a 180-day timeline for an up or down vote on the validity of a claim.

If that decision has not been made within six months, the landowner can then take his/her case to court and recoup attorney fees.

The law, which went into effect 30 days after its passage, requires government agencies to compensate a landowner when a regulation devalues property by taking away its use. In lieu of compensation, the agency can remove the “offending” restriction and restore the zoning in place when the current owner acquired the parcel.

“These recent lawsuits are much ado about nothing. They are just being filed to get as much play as possible out of the trial court decision before it is overturned by the Supreme Court,” said Ross Day, OIA director of legal affairs.

He said the lawsuits brought by Franke and other individuals in some of the 32 counties with Measure 37 activity might not even be filed in the right venue.

Those hearings are slated to be heard in Marion County since the state capital is located there and the issue has statewide significance.

However, Day questions how Hood River and other counties can be forced to “cease and desist” processing claims by a Marion County judge. In fact, Polk County has filed a motion to dismiss the case based on that premise.

Day said it was proper for opponents of Measure 37 to take their constitutional challenge against the new law to Marion County. He said the controversial ruling by Judge Mary James did require the state and four counties whose farm bureaus joined in the case to reject claims, at least temporarily.

Day said Hood River and other counties not involved in the litigation are not under the same constraint.

Hood River County Counsel Will Carey said he will likely accept the mail service of Franke’s suit. But the county is probably not going to expend either time or money on the issue, he said, until the outcome of Polk County’s case is known.

“We are probably going to take a conservative ‘wait and see’ approach to this matter,” he said.

Franke acknowledged the lawsuits at the local level could be moot if the Supreme Court renders a quick decision following the Jan. 10 appeals hearing.

However, he said it could also be months or years until the future of Measure 37 is determined.

He said any county that voluntarily agrees to quit processing claims will not be faced with court costs to defend its stand or the possibility of paying the plaintiff’s attorney fees.

“This was just meant as a friendly suit to help the counties stop wasting time on this stuff. We want them to put everything in limbo until the Supreme Court decision has been made,” he said.

To date, Hood River County has either processed, or is currently reviewing, 63 claims totaling 2,300 acres with a combined property value of about $270 million. Mike Benedict, county planning director, said a dozen of these claims have been filed since the ruling by Judge James.

Last fall, the county decided to continue processing claims until directed otherwise by a court, in order to avoid potential liability.

However, all Measure 37 claimants have since been warned that pending litigation in the highest state court could nullify their request for either compensation or removal of a land-use restriction.

OIA and State Attorney General Hardy Meyers, who is compelled to defend the law put in place by citizens, have already filed appellate briefs.

They will face off with attorneys from 1,000 Friends of Oregon in the Supreme Court and both sides claim that a victory will “restore fairness” to the state’s land-use system.

Judge James concluded 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.

1000 Friends contends that Measure 37 landowners are given special development rights that are denied to other property holders. In addition, neighbors could have their viewscapes impaired by previously disallowed construction.

And government agencies lose the authority to impose regulations to protect natural resources that enhance the quality of life for all of Oregon’s citizens.

“The essence 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 Eisenbois, Friends staff planner, following Judge James’ decision.

OIA counters that for more than 30 years Oregon’s land-use regulations have allowed some citizens to gain a viewshed or other valuation advantage through the downzoning of a neighbor’s property.

The organization contends that Measure 37 simply upholds the constitutional principle that a government entity taking away use of private property for the public good should compensate the landowner.

“If a schoolyard bully takes my dollar away but the principal makes him give it back, am I making a windfall?” asked Day.

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