Measure 37 Vulnerable to Constitutional Challenge

Yesterday plaintiffs in a lawsuit challenging the constitutionality of Measure 37 filed a motion for summary judgment in the Marion County Circuit Court, asking the Court for an immediate ruling that Measure 37 violates the Oregon Constitution and must be invalidated.

The plaintiffs (four county Farm Bureaus, five farm families and 1000 Friends of Oregon) argue that Measure 37 is an unconstitutional violation of the government‚s power to protect the health and welfare of Oregonians. The Oregon Supreme Court has called this power "the very essence of sovereignty of the state."

The plaintiffs also argue that Measure 37 violates the Oregon Constitution’s "privileges and immunities" clause by creating a privileged class of landowners that are immune from the law. "Article I, section 20, is directed at the vice of legislative favoritism, and favoritism is at the heart of any law that extends a privilege or immunity to a fixed or closed class, meaning a class that cannot, by definition, include new members."

"The people voted to make government treat property owners fairly," said Bob Stacey, Executive Director of 1000 Friends of Oregon. "But 37 is an unconstitutional mess. The measure won’t stand. So we’re urging the Legislature to step up and pass replacement legislation that does what the voters approved."

1000 Friends of Oregon, the Oregon Farm Bureau, and other organizations support legislation authorizing payment to property owners caught in land use changes. Their legislation would repeal Measure 37’s zoning waivers, which allow some property owners to ignore land protections that apply to their neighbors.

To date, more than 500 claims have been filed under Measure 37, demanding everything from one or two houses on farm fields to massive city-style development in the middle of orchards, vineyards, and fields. Most claimants are still awaiting county or city action.

If the Marion County Circuit Court grants plaintiffs‚ summary judgment motion, Measure 37 will be invalidated. This means all city, county, or state agency action on existing claims will be halted, and no more claims will be possible under the measure.

The plaintiffs‚ motion and supporting memorandum describe how Measure 37 violates numerous state constitutional requirements.

"Today it is disgruntled property owners that have achieved a ballot box victory. Tomorrow it could be disgruntled employers, polluters, or shippers. If public entities are to preserve their power to regulate, and the state is to maintain its sovereignty, Measure 37, and any future laws like it, cannot stand," argue the plaintiffs.

Not only is Oregon‚s police power unconstitutionally confined, but also local governments‚ ability to protect public health and safety: "Measure 37 is constraining the exercise of delegated police power at the local level. Because local governments cannot remove those shackles by repealing Measure 37," the Measure is unconstitutionally flawed.

The plaintiffs argue: "Measure 37 provides no procedural safeguards for the large class of Oregonians whose properties and lifestyles will be impacted by Measure 37 claims…. The Measure specifies the rights of the claimants, and provides a cause of action, including an entitlement to attorney fees, to enforce those rights. However, neither the Measure, or any general provision of Oregon law, provides adequate procedural protections for non-claimants."

1000 Friends of Oregon advocates addressing the voters‚ intent of payment to aggrieved landowners through use of development credits, such as those already in use in Deschutes County.

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