Measure 37 unconstitutional, says Marion County Circuit Court

Word is out that Judge Mary Mertens James of the Marion County Circuit Court ruled today that Measure 37 violates the Oregon constitution.  Judge James ruled that because the measure makes cities and counties choose between paying compensation and waiving land use rules, thus coercing the state into not make new land use rules, it impermissibly limits the plenary power of the legislature to make new land use rules.  The court also found that Measure 37 distinguishes between people who bought property before a regulation was enacted (the judge calls them "pre-owners") and not giving the same right to people who bought property after the regulation was enacted ("post-owners"), and this distinction is not (in the judge's words) "reasonably related to a legitimate state interest and, therefore, is unconstitutional."  The court said that because compensation is the heart of Measure 37, if it were severed the people's intent in adopting it wouldn't be carried out, and therefore the whole measure must be thrown out.

I'll doubtless have more to say about this decision, but I offer a few immediate thoughts on what will happen if this decision is upheld on appeal.

1.  Oregonians in Action's next initiative will be to repeal Chapter 197, the authority for statewide land use planning, in its entirety.

2.  The same argument about special treatment will be used to invalidate the sweetheart bill that protects Nike and Columbia Sportswear from being annexed by Beaverton.

3.  The court gave great weight to the plaintiffs' statements that they relied on the present zoning when they bought their properties.  The judge did not note that the Measure 37 claimants could make the same argument.   The legislature will note it, however.

The complete ruling is here in PDF.

Comments

[Jesse O]

OIA's never wanted to take on statewide planning head-on. They've assiduously avoided it, as it would be a worse ballot title. That said, there may be some significant anger from voters on having another initiative overturned, and that anger may be channeled.

[Isaac Laquedem]

I think a lot of the public will see this as the court saying that the public doesn't have the right to limit the legislature, even by initiative legislation, and will look for some even more direct and blunt way to send a message. A similar sort of anger is what brought us Measure 5 (the first successful property tax limit measure) and its progeny.

[Sid]

I'm not sure if you can compare land use issues with tax issues. Oregonians do have a deep sense of pride about our state and its natural beauty.

A friend of mine who voted yes on 37 did so because her grandmother has some 200 acres in eastern Oregon. The family wants to build a guest house on the property, but was unable to under Oregon's land use laws. But when my friend saw the kinds of claims that were being filed she was shocked. She wasn't looking at the big picture when she voted and she would change her vote now if she knew there was some way they could get the guest house built, but for the time being M37 answered their problem.

Hopefully people will chill out and help the legislature find a decent solution.

[Isaac Laquedem]

On reflection overnight, I've concluded that Judge James didn't look carefully enough for a way to sever part of Measure 37 and keep some, which would have averted the war that I see coming. She could have found something like this:
1. People buy property in reliance on the zoning that exists at the time. (She found this for the plaintiffs, but not for the defendants.)
2. Measure 37 reasonably distinguishes between owners based on the zoning in place at the time of acquisition, because different owners relied on different zoning.
3. Measure 37 gives the government the power to waive post-purchase rules so that people get the zoning they expected.
4. However, the provisions allowing people to get compensation because the zoning has changed since family members acquired the property aren't reasonably related to a valid purpose, because the present owner didn't rely on Grandpa's zoning when inheriting the property. (Under Measure 37, people who rely on a relative's zoning for their claim may get compensation, but not a waiver of the rules.)
5. Therefore, the provisions relating to getting compensation because the zoning's changed since Grandpa bought the property are invalid. People have to rely on their own ownership, not their family's ownership, for a Measure 37 claim.

I would like to think that the legislature can find a decent solution, but its track record this last session doesn't give me any hope.

[ron ledbury]

The OIA folks displayed an embarrassing lack of understanding of contracts and the defense of private property by adopting the notion that development rights are instead privileges that can be severed from the rights that go with the land.

I too feel that the compensation component is flawed.

But, I add a twist by noting that the remaining land use specific issues, and transfers, cannot be addressed without reference to the contracts clause. (See update to post.)
http://pdxnag.com/drupal/node/809

[Sid]

Perhaps it was a failure of 1000 Friends rather than Judge James' not to include the ownership issues you articulate in your above comment and today's post.

[CLP]

It amazes me how many people just don't look at the big picture.
Judge James did the right thing, it is unconstitutional. Measure 37
gives special rights only to a select group of land owners. It
also doesn't spell out the danger of commerical developements that
have been taking place. I'm all for land owners having the right
to do certain things with their land, but I'm not for the scam and
scum of commerical developement taking advantage of such a measure
that is very dangerous to all of us.

I live out towards the country and my neighbors who have owned their
home and property more than 35 years, decided to turn their land into a row of
apartment complex buildings after a commerical developer talked them
into it. They cashed out to the big $$$ and moved and retired to
Florida. Because I have only owned my home and property for only 7
years, I cannot do the same thing, yet I'm having to look at that
once beautiful country setting now gone and my view of it destroyed
by apartment buildings. now the once quiet and peaceful setting is
replaced by car noise, barking dogs, and screamming kids.

Now I have my house up for sale to get out of this hell hole that
measure 37 created for us. I strongly support Judge James and you
people better start educating yourselves of just how dangerous
measure 37 is with commerical developements that should not be
allowed. This does not fall under personal use rights, but a way
of using the system for commerical scamming. Funny how none of the
measure 37 readings/supporters ever mention the dangers of it for
such type commerical use because most are greedy land owners wanting
to cash out big $$$ at our expense and greedy land builders wanting
to come in from California and Oregon to make the big $$$ to quickly
do, get the $$$ as they move on for more scamming while they start
destorying Oregon land.

The person here complaining about a guest house not being able to be
put on grandma's land, well, for personal use, you should be able to,
but where are we protected from commerical developement???? We aren't,
so until Measure 37 is more in line with personal use and not for
commerical as well, it's not a good thing at all to vote for it as it
brings such dangers to commercial developement and you may soon be
living next to a commerical building next to your home just because your
neighbor owned their place longer than you and have special rights to do
so! Don't think so, I paid more for my land than my neighbors did many
years ago and I should have the same rights as they do!!! I have the
right to be protected from commerical developement abuse as well.
Lets see how quick someone would be for measure 37 if they see just how
you don't have the same rights and a commerial building is being built
right next to your beloved home and nothing you could do about it.
Don't let these corrupt people fool you about measure 37! I was stupid
to vote for it because I didn't educate myself to the dangers of it and
now I have apartment buildings next to my home with no more beautiful
views of the country side. Beware of measure 37 and support Judge Mary
James for protecting us from these dangers! Measure 37 has to be re-written
before we support it.