Future of Oregon Property Rights Measure 37 in Doubt
By Jon A. Chandler

On October 14, the Oregon Circuit Court for Marion County ruled that Ballot Measure 37, the sweeping property rights measure passed by Oregon voters in November, 2004, was unconstitutional.  On cross motions for summary judgment, the Court held that the Measure:

intrudes on the plenary power of the legislative body; violates the equal privileges and immunities clause of the Oregon Constitution, Article I, § 20; violates the suspension of laws clause of the Oregon Constitution, Article I, § 22; violates the separation of powers clause of the Oregon Constitution, Article III, § 1, to the extent the legislative branch purports to delegate to public entities powers it does not possess; and violates procedural and substantive due process, United States Constitution Fourteenth Amendment.

MacPherson v. Dep't of Administrative Services, No. 05C10444 (Marion County Circ. Ct. October 14, 2005) http://www.ojd.state.or.us/mar/documents/OpinionOrderMSJ.pdf

The Circuit Court ruling puts the future of Measure 37 in a state of total confusion.  For one thing, this is a trial court decision and will be appealed to the state Supreme Court, probably on direct review (although that is discretionary, with both the Court of Appeals and the Supreme Court needing to agree), so it is far from the final word on whether or not the Measure is valid or not.

It is also unclear whether the decision of the Marion County Circuit Court is binding statewide or only to the four counties that were either parties or interveners to the action.  Pursuant to Oregon statutes, the Marion County Circuit Court has exclusive jurisdiction of any challenges to ballot measures in which the constitutionality of the measure is at issue, but there is some question as to whether or not the particular challenge brought in the instance of Measure 37 qualifies for this statutory exclusivity.  Adding to the confusion is the language of Measure 37 itself, which provides for actions for damages against local governments after the passage of time, so numerous Oregon local governments are forging forward with the processing of Measure 37 claims to avoid this potential liability.

At this writing, there is no stay on the operation of the MacPherson decision, and no definitive ruling on its applicability.  If the appeal goes forward and the Supreme Court takes direct review, a final answer could be given within a year or so; if the Court of Appeals takes the case first, it could take as long as two years.  In the meanwhile, property owners, local and state government agencies, and the general public are left in limbo as to the Measure’s legality.

Added to the inherent uncertainty created by MacPherson, there is the fact that, since this case only addressed the constitutionality of Measure 37 and was decided on summary judgment, there is no guidance as to how the Measure actually functions, even if the Supreme Court ultimately upholds it.  Numerous legal questions surrounded Measure 37 – ranging from whether or not any waivers of land use restrictions are personal in nature or transfer with the property, to whether and how a state administrative agency can waive the application of state statutes, among others – and there will be additional litigation ahead before the status of the law in Oregon is clarified.  Several cases in counties around Oregon have been filed to flesh out the requirements of the law, including one in which one county sued itself to bring the procedural issues to the attention of the Circuit Court.

The 2005 Oregon legislature had the opportunity to address some of these issues, but a bill which would have done so failed to pass the state Senate during the final days of the session.  The legislature does not meet again in regular session until 2007, but given that the courts may not have issued an opinion before then, the legislature may get another shot at crafting a political compromise.

Other events are taking place as well which may have an impact:  both Oregonians in Action (which sponsored Measure 37) and 1000 Friends of Oregon (which filed the MacPherson challenge) have ballot initiatives heading for signature gathering, which will force another statewide vote in November of 2006 if the measures qualify for the ballot.  Also, the 2005 legislature did establish the Task Force on Land Use Planning – a ten person committee, whose members are jointly appointed by the Speaker of the House, the President of the Senate, and the Governor – and charged them with examining Oregon land use law and recommending changes to the 2009 legislature, with a progress check-in to the ’07 legislature.  This task force has not yet been appointed, and the make up of the membership is, as one might imagine, a fairly delicate political issue.

So other than a tangle of litigation at all levels, the prospect of another round of dueling thermo-nuclear ballot initiatives, and the yet-to-be-determined work of a yet-to-be-determined task force, the status of Oregon land use law is totally fine.
[ return to top ]