Federal judge complicates Oregon land use policies

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.
Download 111208_decision_cfcf_v_jackson_co.pdf

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.

Comments

[Rain]

Good points. I was not happy when I saw that either. I wish we could get this resolved. I can't how many times I have driven home since Measure 49 passed and enjoyed the farms and productive land that was protected at least for awhile. Now what happens to it? Just disappointing and I guess it will go to a higher court and more costs involved.

It shows again why a president who values the environment and land use controls is so important to us on the left. If you want helter-skelter development and money is all you value, then you see it the opposite. For now, it will go to protecting and not exploiting. It's an issue that is never settled though-- until land has been torn up, paved and forever taken from timber or farm use.

[Harry Vanderpool]

Do you suppose that the 62% of Oregon voters that voted in Measure 49 were all Ultra- Ultra- Ultra- Ultra- Ultra- lefties?

How about the majority that voted against gay marriage in CA? All Ultra- Ultra- Ultra-Ultra- Ultra right wingers?

Of course not!
For example, If Barry would have voted in CA he would have voted AGAINST gay marriage.
That is; if he didn't lie to the American public in the debates where he clearly looked into the camera and stated a position that he knew would garner the most votes; no on gay marriage!

I just don't see the value of trying to alienate Ultra- Ultra- Ultra- Ultra- Ultra right wingers, right wingers, republicans, moderate republicans, & democrats from our land use positions and efforts by protraying the battle as leftist!??????

Maybe you DIDN'T KNOW any of the republican farmers that testified at the land use fairness hearings, but they came out in force. And some of them BIG LAND OWNERS!

I'm on the side of land use fairness, regardless of how some of my knucklehead friends vote on the other stuff.

[Brian]

Harry, I didn't mean to imply that all Republicans are against good land use planning. My jibe about activist judges was directed at those people, mostly conservatives, who usually decry court decisions that overturn a vote of the people.

Except when the vote being overturned is something they're opposed to. Then it's all right, apparently. Either judicial review is fine, or it isn't -- no matter what the issue is. I'm calling for an end to hypocrisy. Don't complain about a court overturning a gay marriage ban if you didn't complain about a court ruling in favor of something you like.

[DB]

Brian,
I read Judge Panner's decision and the main point of his opinion was that 37 waivers were a quasi judcial order. To quote The Judge in the last sentence of the Opinino "Our system of separation of powers does not allow legislation to set aside a judicial decision." Of course as you say the State Supreme Court has ruled differently...what I see is all the $$$ that the legal profession will realize with the possibility of law suits that will sprout in the near future.
In your opinion Brian, do you think a judgment rendered before 49 effective date is reversed by 49? I am thinking about the English case that is coming before the Appeals Court this month.

[Brian]

Yes, if Measure 49 holds up (as I suspect it will, after all is said and done), the only way a Measure 37 development could continue as planned is if the claim is vested under common law. And that's a pretty high hurdle, since significant on the ground building needs to have occurred.

[stephen]

I do not buy the host's premise that 49 in any way ameliorates what is termed as land use for a privileged class. 49 piggy backs on measure 37, just read the final approvals that are comming in and you will see that having persued a M37 is one of the major components of a successful M49 claim.

as for "activist" judges, is the host going to demonstrate anger that individuals within each county's developement departments are currently allowed to make decisions on whether many soil types are high value instead of low value when it happens that the USDA soil survey map is ambiguos without utilizing any scientific protocal? Don't believe it? call each county and ask how they are going to determine high value land vs low value land when data does not exist for a property. you will get a new answer for each county. 2 county heads have gone on record saying no one is going to be able to create 5 acre lots in their counties. I guess they don't care about the law. at least one can argue an activist judge is interpreting the law where it may be vauge (that is what judges do) rather than making declarative decisions DESPITE the law, that is what ideologs do.

[DB]

Brian,
What I have read about the English Case, The issue in the Appeals court this month is not about what is "vested in common law" but a final judgment that was rendered while 37 was in effect. I agree that a 37 claim is moot under 49 but there is no clear language in 49 that reverses a judgment. Any way that is my understanding and was curious of what your opinion was. It seems like the Enlish case has been going for a very long time.
DB

[Debbie]

Hi Brian,

I haven't popped by in a long time. We chatted off and on when 49 haddn't been voted on yet. When it passed your comment was 'wait and see' how great 49 would be. The fast track was going to be wonderful for those that 37 was intended to help.

If you remember I'm one of 'those'. Here it is December, 49's been in place now for nearly the past year. I have a fast track for one home on land in my family since the 60's.

I had to hurry and get my papers into the State in order to be included in the 49 process. Which I did. Here we are coming on to the end of the year and I'm still waiting to hear about my 'fast' claim. Meanwhile, the farmer next door to my land continues to farm that full tennis court.

I told you I believed 49 to be another tactic from the uber left of stall...delay...so we can figure out how to deny... This is hardly a fast track. I think slugs move faster than the 49 fast track.

[Brian]

Debbie, I agree with you. The "fast track" is too slow. I'm also surprised by how slowly DLCD is moving on the so-called express lane.

I understand they want to do this right -- review each claim carefully. But I too thought it would be more of a fast slam dunk to get the three home sites, if a Measure 37 claim already had been approved by a county and the state.

Your frustration is justified. I wish DLCD would explain more clearly why it is taking so long. I'm a Measure 49 supporter, as you know, but the slow motion express approvals aren't helping on the Measure 49 public relations front.