Judge overturns Oregon's property compensation law
Friday, October 14, 2005 9:49 PM PDT
By Associated Press
Printable version
E-mail this articleSALEM -- A judge on Friday overturned a voter-passed property compensation law as unconstitutional.
Marion County Circuit Judge Mary James struck down the law as violating five provisions of the state and federal constitutions.
The state will appeal the ruling, said Kevin Neely, spokesman for Attorney General Hardy Myers, whose office defends voter-passed laws
The compensation law -- passed as Measure 37 on the November 2004 ballot -- requires that state and local governments either compensate land owners when regulations lower property values or waive the rules.
James said the statute violates equal protection provisions of the Oregon Constitution and a state constitutional ban on suspending laws except by authority of the Legislature.
She also ruled that the law breaches the separation of powers between government branches, "intrudes on" legislative authority and violates due process protections under the U.S. Constitution.
Foes of the law argued that it violates the "equal privileges and immunities" provisions of the state constitution because it gives benefits to people who buy their land before regulations were applied but not to those who purchase property later.
The judge said the distinction between those groups "is not reasonably related to a legitimate state interest and, therefore, is unconstitutional."
An appeal to the Oregon Court of Appeals and eventually to the Oregon Supreme Court was expected no matter which way the trial court ruled.
The voters approved Measure 37 after the property rights group Oregonians in Action mounted a campaign that put the proposals on the ballot by initiative petition.
Voters approved a similar property compensation measure in 2000 as a constitutional amendment. But the state Supreme Court threw it out on grounds it contained too many changes to be rolled into a single amendment.
Because of that, Oregonians in Action drafted Measure 37 as a statutory change. That made it vulnerable, though, to challenges alleging that it violated constitutional protections.
Striking at the heart of the compensation issue in the measure, the judge said the government can't be required to pay if it wants to enforce valid land use regulations.
"A government cannot be forced to choose between exercising its power...to regulate for public welfare, health or safety or paying private parties to comply with the law," James said. `Because Measure 37 imposes limitations on the government's exercise of power to regulate land use in Oregon, it is unconstitutional."
Measure 37 easily passed last fall, and more than 2,000 claims for compensation or waivers have been filed throughout the state so far.
Neely said Myers' office "will determine what to do with waivers already granted and claims in process now."
Many claims have been brought by property owners wanting to subdivide to build houses, or who want to put commercial developments on land where current rules forbid that.
Only someone who owned a tract of land before regulations affecting it were enacted can file a claim. A major dangling issue has been whether a property owner who is granted a waiver of a land use restriction could pass along the waiver rights to new owners.
Myers believes the law doesn't allow waiver rights to be transferred. He is raising the issue in test court cases in Crook and Jackson counties.
The land use planning watchdog group 1000 Friends of Oregon, which campaigned against Measure 37, argues that allowing transferable waivers could cripple planning and allow hodgepodge development.
The Legislature grappled with waiver issues and some other legal questions but couldn't agree any legislation to iron out the wrinkles of the law.
Local officials have had to process claims because of deadlines in the law, even though they lack any guidance from uniform statewide standards.
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