Supreme Court upholds Measure 37

With a favorable state Supreme Court decision Tuesday, property rights advocates scored a big victory over defenders of Oregon’s renowned statewide planning regime. But more legal and political debate lies ahead.

The state’s highest court upheld a law approved by voters in 2004 that lets property owners file claims for compensation from local and state agencies when land-use regulations reduce the value of their holdings. If those agencies can’t afford the compensation, they can waive the regulation.

But the ruling upholding Measure 37 doesn’t settle a host of questions about how the law will work. For instance, can property owners sell or bequeath their Measure 37 rights? Does Measure 37 apply in an area the federal government declares as scenic, such as the Columbia Gorge?

Planners like Lane Shetterly, director of the Department of Land Conservation and Development, said the agency is involved in 29 different lawsuits and legal proceedings stemming from Measure 37.

And property owners say there are still nitty-gritty questions that could stand in the way of their development plans.

Duane Weeks, for example, estimates it will take six months to a year to figure out how local authorities will deal with his proposal to subdivide the 20-acre farm he and his wife have owned near Canby since 1969. At issue are how strict the road requirements and the septic tank specifications.

Shetterly expects a temporary surge in claims such as those filed by Weeks and his wife.

"If you picture these claims as logs piling up against a dam, now that the Supreme Court has reversed the trial court, the dam has broken," Shetterly said.

More than 2,000 claims already have been filed under the measure, and more will be coming now that the Supreme Court has upheld the law. Without money to compensate claimants, many counties and state agencies have opted to waive the development restrictions.

Approved in 1973, Oregon’s land-use planning program seeks to restrain development in rich agricultural regions such as the Willamette River Valley.

Planning proponents said Oregonians will someday regret the change Measure 37 will bring.

"Many people were not here when the pioneering effort was made to protect Oregon, and they are just not aware of just how dependent our quality of life is on planning," said Hector Macpherson, a former legislator who helped to write the planning law. "By the time they realize how destructive this law is, it will be too late."

Critics of the statewide planning law argued that it often restricts development on land in Eastern Oregon that’s not suitable for agriculture of any sort.

"People with 20 acres of lava and sagebrush have been stuck," said Dave Hunnicutt of Oregonians in Action, the property rights group that sponsored Measure 37.

In its ruling Tuesday, which overturned a lower court ruling, the state Supreme Court said that if the people of a state want to require a government to compensate landowners whose interests are damaged by a new regulation, they have every right to do so.

As to the arguments that Measure 37 treats some property owners differently from others, that it strips the Legislature of its power and that it fails to give neighbors a voice in decisions, the justices said, "We find none of those arguments persuasive."

That brought joy to property rights advocates, such as the Weekses, who first grew berries and then grains on their land. Now, they lease it for production of red oak trees sold as nursery stock and use five acres to grow farmers market vegetables such as corn, tomatoes and garlic.

"They took control of our land and told us what we could do with it," Duane Weeks said.

Proponents of the land-use regulations that brought Oregon national attention were dismayed.

"As a farmer, I want farmland to remain in farming," said James Gilbert, a fruit tree nurseryman, a plaintiff in the challenge to Measure 37 and Democratic candidate for the Legislature.

Hunnicutt said the number of Measure 37 claims should dwindle in a decade. The law will apply mainly to landowners who held title when the rules changed in the 1970s, so many will either settle their claims for compensation or die, he said. "As those people die, their claims go away as well," he said.

But Shetterly said the impact of Measure 37 may endure because it could deter governments from making regulations more strict.

For instance, a billboard company has helped business owners use Measure 37 to challenge regulations the city of Portland passed in 1998 to further restrict the size of billboards. In the face of advice from a city lawyer that the company has a case, the City Council has rejected one proposal on the grounds that the restrictions apply to the use of land, not the space above it.

"You may not see the claims, but you will see the impact," Shetterly said.

Hunnicutt, for one, would not mind seeing a change in the mindset of Oregonians, and he said one of the linchpins of the Oregon system, statewide planning, should be open to question.

"In every other Western state, zoning decisions are made at the local level, and that seems to work," he said.

Last year, the state Legislature tried, and failed, to resolve questions dealing with Measure 37, which led Gov. Ted Kulongoski and the bipartisan legislative leadership to name a 10-member commission to take what’s been called "the big look" at the state’s land-use scheme.

Kulongoski on Tuesday called for the Legislature to clarify the measure, something lawmakers tried, but failed, to do last year.