Measure 37 Court’s ruling plows doubts

October 19, 2005

Hood River County officials are unsure how to proceed with the processing of Measure 37 claims following last week’s lower court ruling that the law was unconstitutional.

The successful challenge was led by 1,000 Friends of Oregon, a conservation group that is celebrating a victory that they say “restores fairness” to landowners.

However, Oregonians In Action, property rights advocates that authored the new law, claim the Marion County court decision was “purely political” and will be overturned.

Meanwhile, Hood River County has a pre-application conference set up in November to review plans for the first development brought by a successful Measure 37 claim.

Legal counsel Will Carey told the county commissioners on Monday that, based on his conversation with other attorneys across the state, it was possible the ruling by Judge Mary James would be rejected. However, he said it was also possible that it would be upheld and the voter-approved Measure 37 thrown out as its predecessor, Measure 7, had been.

“Quite frankly, at this juncture, no one knows exactly what this ruling means to us,” said Carey.

He said the four counties which filed the legal challenge were now bound by James’ decision – at least temporarily – to reject claims. But Hood River County and the 32 others that had not participated could continue to process Measure 37 demands. However, he said all claimants needed to be notified that pending litigation could nullify their request for either compensation or removal of a regulation that had downzoned their property.

Carey said the state was now compelled to defend the challenge against Measure 37 since it was a law that had been put into effect by the people. Last November, Measure 37 was approved by a 61 percent supermajority of voters statewide and 53 percent in Hood River County.

“Most counties are coming up with the advice of ‘let’s continue to process the claims’,” said Carey. “But anyone who files a claim is taking a risk that it will later be void. However, there is just as likely a chance that the judge’s ruling will be overturned.”

He said the county had been put in a tough position since it had to rule on a Measure 37 claim within a 180 day period. Another state law required that development applications be processed within the same time period. But it could take years for OIA to gain a final judgment from the state Supreme Court.

“What I do not want to have happen is to not process a claim and have charges brought against us,” said Carey. “I’m sure that people who are more seasoned than I am have never seen this in Oregon law. It’s a new adventure for all of us and we’re going to be plowing some new ground.”

Steven Andersen, a land-use consultant, was present at the Oct. 17 meeting on behalf of his Measure 37 clients. He wanted to know how Joe and Nadine Holt should proceed with a land-use issue.

The couple recently had their development rights restored by a Measure 37 claim and are now seeking to divide 18.69 acres along Highway 35 into 10 lots.

The county and Andersen agreed that the pre-application conference should take place as planned on Nov. 3. But if the Holts submitted plans following that meeting then the clock would begin ticking and there would be no certainty in the outcome – even if the county approved the proposal.

Carey said any structures built from a Measure 37 claim could end up being torn down if the Marion County ruling prevailed.

“We’ve been advised to wait for the ruling to come down on the appropriateness of the judge’s decision. So, we may do that anticipating that cooler heads will prevail,” said Andersen following that discussion.

Ross Day, OIA legal affairs director, plans to ask the Oregon Appeals Court to bypass a hearing. He wants to take the case directly to the Supreme Court to shorten the time before a decision is reached.

Day said landowners and government officials did not need a “spectre hanging over their heads” any longer than absolutely necessary.

“All of the legal theories that were advanced in this case have previously been discredited. We believe this was a purely political decision and that justice will ultimately prevail,” Day said.

Bob Stacey, director of 1000 Friends, believes the ruling by Judge James was correct. She concluded the law was not legal because it granted special privileges and immunities to one class of citizens, impaired the legislative body’s plenary power, suspended laws, and violated the separation of powers.

“We are very pleased that the court recognized Measure 37 is not about fairness: it is unfair at its core,” said Stacey. “We expect local governments and the state to heed this ruling and not enforce the law.”

He has called upon Gov. Ted Kulongoski and legislative leaders to convene a special session. 1000 Friends wants officials to “pass legislation that deals fairly with people who have borne an unfair burden — but not at the expense of their neighbors.”

During the 2005-07 legislative session, Kulongoski successfully called for a taskforce to review Oregon’s land-use laws. He believed that many of the issues intended to be resolved by Measure 37 would be better addressed by policy changes in government processes.

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