Last month federal judge Owen Panner ruled that some property owners in southern Oregon had a binding contract with Jackson County over their county waivers of land use regulations under Measure 37.
That was an early Christmas present for Oregonians in Action and other opponents of Measure 49, which rolled back Measure 37 in order to protect irreplaceable farm, forest, and groundwater limited land.
They hoped this would open the door again for subdivisions to sprout where crops and trees grow now. Pave it over could replace Keep Oregon green as a state motto.
Well, not so fast.
A few days ago Richard Whitman, director of the Department of Land Conservation and Development (DLCD) sent a letter to the chair of the Jackson County Board of Commissioners.
He said that a "stop" sign needs to be placed in the way of a proposed 12-lot subdivision on land zoned for exclusive farm use.
Whitman makes a lot of sense (even with some typos in the letter). He points out that were a county land use law to be waived, state law still remains in effect.
In sum, under [t]he terms of Measure 49, applicable court decisions, and LCDC rules and irrespective of the status of the county's Measure 37 waivers, the county may not lawfully approve a land use permit for the proposed subdivision because that subdivision in [sic] unlawful under state statutes and rules and the state's waiver of those statutes and rules is no longer in effect.
When he says "no longer in effect," this refers to rulings by the Oregon Supreme Court, Court of Appeals, and Land Use Board of Appeals that affirmed the primacy of Measure 49 over Measure 37.
However, the Oregon Supreme Court has held that the state's waivers under Measure 37 are no longer in effect. Corey v. DLCD, 344 Or 457 (2008) ("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.). The Court of Appeals also has held that any rights an owner had under Measure 37 are converted to rights under Measure 49, and must be analyzed under that law. Frank v. DLCD, 217 Or App 498 (2008).
Measure 37 waivers are gone. Vanished. Non-existent.
The only way a waiver can be brought back to life is if a claimant's development is determined to be vested under common law (the "single exception" in the passage from Whitman's letter quoted above).
This isn't the end of the legal wrangling over what Judge Panner's decision means for Measure 37 claimants.
However, DLCD has cast additional light on the situation, and I'm hopeful that Whitman's legal reasoning will prevail in the end.