Posted: Sunday, November 16, 2008 12:00 am
Oregon's land use wars have entered a new and welcome phase because of the ruling last week by U.S. District Judge Owen M. Panner.
Remember the background? In 2004 voters approved Measure 37, an initiative that required local governments to compensate owners - if they applied - for any property value lost because of land use regulations imposed after they acquired the property. Or local governments could waive the regulations.
In 2007 the legislature crafted Measure 49 to cancel Measure 37, voters approved it, and it took effect in December.
But in the meantime, hundreds of property owners had won waivers of land use regulations.
Like other counties, Jackson County refused to comply with those waivers after Measure 49 took effect. Several owners there went to federal court.
In a ruling that came out Wednesday, Judge Panner said, "I conclude that plaintiffs' Measure 37 waivers are valid and must be honored by Jackson County." He reasoned that the waivers were valid contracts, and under the U.S. Constitution, states are not allowed to abrogate contracts.
Justice at last! Or so one would hope. But it's not so simple. Nothing involving the government and land use ever is.
Judge Panner explicitly said he was not declaring Measure 49 unconstitutional. He said only that the county could not use it as an excuse to ignore the contracts it had made with the Measure 37 claimants. (The contracts were that the owners were giving up compensation in return for the county's promise to waive certain regulations.)
The state Department of Land Conservation and Development now says that it doesn't have to go along with the implications of the ruling. It says the state had not granted those waivers and is not obligated to honor anything that the counties granted under Measure 37. The state response is typical of the prevailing attitude, which is to throw every possible roadblock in the path of property owners trying to exercise their rights.
So more litigation is likely to ensue. One question raised but not answered by Judge Panner: If Measure 49 is used as the basis for denying valid contract rights, why is it not invalid whenever it is used that way?
Even though it didn't go far enough, Panner's ruling does serve as a ray of hope and light for property owners whose rights have been denied, especially those who - like Charlie Fischer in Benton County - expended a good deal of cash under Measure 37 and then found themselves deprived not just of their development rights but of some of their money as well.
With luck, the 2009 legislature will take Judge Panner's ruling as a warning. It could then catch up on something it should have done in the first place: Recognize the valid rights of people who proceeded under Measure 37 instead of cutting them off at the knees. (hh)