With Measure 37 Tossed, We All Must Wait

By Edward H. Trompke

Measure 37 was passed almost a year ago by the voters almost a year ago as an initiative petition. Its stated purpose was to promote fairness to property owners who lost value of their land because of subsequently adopted land use regulations. Land use advocates immediately challenged the law, and the legislature was unable either to mediate a compromise or fix the uncertainties of the new law. On October 14, 2005, a Marion County circuit court judge ruled that Measure 37 was unconstitutional.

So, what does this mean, and what did the judge say?

First, city and county governments that are not parties to the lawsuit are technically not bound by it; neither are their residents, if they file claims. Some of these governments are continuing to accept new claims and to process the ones that they already have accepted. They are doing this to avoid bumping into Measure 37's 180-day deadline for resolving claims in case Measure 37 is upheld.

The defendants in the lawsuit — Washington, Clackamas, and Marion Counties, and the State of Oregon — are taking no action. The court ordered that they stop processing the claims they have received and that they stop taking new ones. The state asked the court to permit the three counties and the state to continue taking claims and processing them in the 180-day deadline period in the event that the circuit court decision is overturned on appeal. The court rejected that request.

The state has appealed the decision of the circuit court to the Supreme Court of Oregon. A decision could take as much as one or two years. However, all parties hope that the decision will be sooner in order to resolve this issue promptly. The Supreme Court has scheduled briefing by attorneys in the case and a hearing for oral argument is expected between June and September 2006. A decision will be issued some time after that date, but no one can predict when.

At least one candidate for governor has called for a special session of the Legislature to solve the problem. Most legislators do not believe that a compromise is possible and are resisting. The governor has spoken to the parties, but no compromise has yet been proposed.

So, what portions of Measure 37 did the judge find unconstitutional? The judge threw out this law on four grounds: that it impairs the power of the legislature, it creates a class of property owners who will unfairly benefit, it unlawfully suspends the laws of Oregon, and it violates the "due process" rights of neighbors of Measure 37 claimants.

The first three grounds rest upon an unspoken rule: that neighbors of a subject property have some right to control how that property is used, and that their right is both fixed as of the date they acquire their property, and is superior to the rights of the owner. This is similar to, but conflicts with, the rule set out in Measure 37 that protects the right of the owner over that of the neighbor. The judge's rule was once of the law of England (and probably its American colonies), but it was thrown out almost three hundred years ago because it was unfair to allow the nobility (who owned most of the land) to prevent the commoners from developing their property. Development moved society forward to what it is today. The old rule is being revived and used in this case to allow the majority, who enacted land use laws, to prevent individual landowners from using their lands in ways that the majority once allowed, but no longer wants to allow. Will such a rule be upheld by the Supreme Court of Oregon? That's anybody's guess, but the Supreme Court justices may find alternate reasons to throw out Measure 37. Many people expect that result.

Three outcomes are possible. First, a political compromise may be adopted by a special session of the Legislature. However, a subsequent circuit court ruling might find that any such compromise is unconstitutional. Second, the Oregon Supreme Court might invalidate Measure 37. Third, the Supreme Court could uphold Measure 37 with all of its warts and flaws. In any case, a political solution may be better than a judicial solution.

In the meantime, property owners who want to assert Measure 37 rights should continue to file their claims, at least in the counties where claims are still accepted. Opponents of Measure 37 claims should continue to appear at the hearings to oppose them. Governments can hold hearings, knowing that they may be a waste of time. We will all wait for the Supreme Court to provide finality.

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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