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Court
Rules Measure 37 as Unfair, Unconstitutional & Invalid
Frequently
Asked Questions
1. What was the court's ruling about?
On October
14, 2005, the Marion County Circuit Court ruled that Measure 37 was
unconstitutional. The ruling focused on the Measure's unfairness. The
court found that the Measure created a class of landowners with special
rights to ignore laws that promote the public good and protect our collective
property values.
Specifically,
the court found that Measure 37 unfairly deprives property owners of
their rights if a neighboring Measure 37 claim reduces their property
value. (Due Process Clause of the United States and Oregon Constitutions)
The court ruled that the Measure created a special class of citizens
made up of long-time property owners. This special class can reap windfall
profits from taxpayers far beyond any actual loss due to land use regulations.
(Privileges and Immunities Clause of the Oregon Constitution).
In addition,
the court found that Measure 37 improperly requires the government to
pay citizens to comply with law. (Police Power under the Oregon Constitution).
According to the opinion, "…a government cannot be forced
to choose between exercising its police power to regulate for public
welfare, health or safety, or pay private powers to obey the law."
The plaintiffs
in the suit were farmers, property owners, five county farm bureaus,
and 1000 Friends of Oregon. The parties defending the suit were the
State of Oregon and Marion, Washington, Clackamas, and Jackson counties,
and some individuals who chose to join in the litigation.
2. What
happens next?
1000 Friends
is advocating a responsible replacement to Measure 37 that treats all
people fairly and makes whole those who have been unfairly burdened.
Certain landowners should not be exempt from land use laws and made
rich at the expense of their neighbors and community. We have called
on the Governor, the Senate President, and the Speaker of the House
to convene a special session of the legislature to change the law so
it is both fair and constitutional.
The circuit
court ruling has been appealed to the Oregon Supreme Court, which is
scheduled to hear oral arguments January 10 (1:15 PM). The Oregon Supreme
Court denied a State motion for stay pending appeal, which means the
Marion County Circuit Court opinion and order remain in effect. The
Marion County Circuit Court has specifically ordered the state and the
four counties involved in the case (Clackamas, Jackson, Marion, and
Washington) to stop accepting and ruling on claims immediately. Unless
and until a court rules otherwise, we believe the measure is invalid
and no longer in effect anywhere in the state. (See also Question
#5.) (Download the Supreme
Court order and other documents related to the case.)
3. I thought
Measure 37 would allow a few people to build a house. What kinds of claims
were really filed under Measure 37?
Most claims
filed under Measure 37 demanded residential subdivisions that would
hurt neighboring homeowners and family farms. Other claims demanded
exemptions from land use protections to expand a landfill, mine gravel,
erect billboards, construct large commercial developments, and build
houses unrelated to farming in exclusive farm use zones. According to
the press, over 2,500 claims have been filed so far in Oregon.
4. Will
1000 Friends of Oregon take steps to address voter concerns about fairness?
1000 Friends
believes that voters want land use laws that are fair to communities
and all property owners, which is why we have called for a special session
of the legislature to address this issue. The legislature could not
reach agreement during the 2005 session when it had many other issues
to debate, but a special session limited to this topic should produce
a solution. Also, a special task force on Measure 37, as recommended
by The Oregonian, could be a good first step. 1000 Friends of
Oregon is also considering filing a ballot initiative should the legislature
fail to convene in a special session.
We recently
filed "The Home Owner and
Family Farmer Bill of Rights" initiative that would guarantee
a homestead right to build a home for all property owners who could
have built one when they acquired their property. We also supported
similar concepts in the last legislative session.
Read The
Oregonian editorials here
and here.
5.
What happens with Measure 37 claims now?
We believe
the court's ruling is applicable to all cities, counties, and the state
governments because Marion County Circuit Court is the only court in
which such constitutional challenges can be brought. At present, some
cities and counties disagree with this interpretation; we anticipate
it will take a few weeks before this issue is resolved.
All named
parties in the suit are required to follow the judge's findings. This
means that none of these jurisdictions may accept, process, or make
determinations on Measure 37 claims: the Oregon Department of Administrative
Services (which oversees all Measure 37 claims), the Oregon Department
of Land Conservation and Development, plus Clackamas, Jackson, Marion,
and Washington counties.
6. What
about claims that have already been decided?
Measure
37 claims that have already been decided are null and void. This means
that local governments cannot use prior waivers as the basis for approving
a land use application or building permit.
Even if
your county does not believe that it is bound by the court ruling, most
land use applications will require both a county and a state waiver
(such as for land zoned for exclusive farm use, forest use, or other
lands outside urban growth boundaries). Because the state waivers are
now invalid, current state law still applies to the land use decisions.
We encourage citizens, neighbors, and farmers to participate in such
decisions to ensure that your rights are protected.
Read
recent testimony by 1000 Friends of Oregon about a land partition being
sought in violation of state law.
Learn
more about the this lawsuit and download documents related to the case.
Read
recent Measure 37 news articles and commentary.
(Note:
This material is provided for general information purposes only, and is
not intended to serve as legal advice. You are urged to consult a lawyer
concerning your own situation and any specific legal questions you may
have. If you have any questions or feedback concerning this paper, contact
1000 Friends of Oregon at 503-497-1000 or info@friends.org.)
12/21/05
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