Just when it seemed that with the passage of Measure 49 last year, some clarity had emerged about Oregon land use policies, now a federal district judge has ruled that Measure 37 waivers are still alive in Jackson County.
Measure 49 markedly rolled back the excesses of Measure 37. In November 2007 sixty-two percent of Oregonians voted to preserve irreplaceable farm, forest, and groundwater limited land from excessive development.
Measure 37, passed in 2004, allowed property owners to get waivers from land use regulations passed after they acquired their property. This created a privileged class based on when someone came to own a piece of land.
Most laws don't act that way. If the speed limit changes on a freeway, you have to obey it, no matter when you got your car -- even if it's a Porsche that you bought so you could drive fast.
Measure 49 restored fairness to Oregon's land use system.
It allowed Measure 37 claimants to have three home sites on their property (up to ten if they could prove a loss of value from land use regulation). But subdivisions and commercial uses, such as gravel pits, were banned from farm and forest land.
A lawsuit was filed in federal court challenging Jackson County's right to follow Measure 49 and roll back development under Measure 37. Judge Owen Panner ruled in favor of the plaintiffs. You can read his decision here.
Not being an attorney, I'm not competent to comment on Panner's reasoning.
The only two things I'm pretty certain about is that (1) this decision complicates the implementation of Measure 49, and (2) it will be challenged.
A follow-up story in today's Oregonian points out some of the problems with this federal intervention into Oregon law.
Meanwhile, Jackson County Commissioner Dennis C.W. Smith said the ruling didn't specify how the county should remedy the situation, but direction should be coming from the judge soon. The county hasn't decided whether it will appeal the decision to the next step up the legal ladder: the 9th U.S. Circuit Court of Appeals.
"The state court says do it one way, the federal court says do it another -- I feel like a yo-yo," Smith said. "Nothing in relation to land use catches me by surprise."
What Commissioner Smith probably is referring to is a decision in May 2008 by the Oregon Supreme Court, Corey v. DLCD, that affirmed Measure 49. The Supreme Court said:
In the end, we hold only that plaintiffs' contention that Measure 49 does not affect the rights of persons who already have obtained Measure 37 waivers is incorrect. In fact, Measure 49 by its terms deprives Measure 37 waivers -- and all orders disposing of Measure 37 claims -- of any continuing viability, with a single exception that does not apply to plaintiffs' claim.
Thus, after December 6, 2007 (the effective date of Measure 49), the final order at issue in the present case had no legal effect. It follows that resolution of the issue that the Court of Appeals decided in Corey and as to which we allowed review -- whether the Court of Appeals or the circuit court has jurisdiction to review DLCD's final order respecting plaintiffs' Measure 37 claim -- can have no practical effect upon the parties: If the order at issue has no continuing legal effect, then neither party can gain anything from review in either forum. The case is moot.
So a federal judge says one thing; the Oregon Supreme Court says another thing. Let the lawsuits continue.
Our nation is ruled by law. I've got no problem with this issue being played out in the courts. I'm confident that a sound decision will be arrived at in the end.
I just hope that the conservatives who are applauding Judge Tanner's ruling appreciate the irony of this situation, because most of these folks are fond of railing on about "activist judges" who "overturn the will of the people."
Well, that's what happened here. A single judge has said that his opinion counts more than 62% of Oregon voters (although Tanner didn't rule that Measure 49 was unconstitutional).
And there's nothing wrong with that. Again, we're a nation of laws, not of unfettered majority rule.
Let's just be consistent, right-wingers, and not froth at the mouth the next time a court affirms the right of gays to marry, or blocks the Ten Commandments from being displayed in a government building.