Measure 37, the property-rights measure (or the undo-land-use-planning measure, depending on your point of view), needs to be repaired. A Marion County trial judge held yesterday that Measure 37 violates the Oregon constitution, but for now her decision applies only to the parties to the case. These are the state itself and three counties: Clackamas, Marion, and Washington. The result (I believe) is that until an appellate court rules on Measure 37, the state and these three counties can't grant Measure 37 waivers, but cities and the other 33 counties can. (The decision of a trial court has no value as precedent, but does bind the parties to the case.)
I suppose that someone who needs a Measure 37 waiver from (say) Deschutes County, but not from the state, can still pursue the claim. We can't go on very long with Measure 37 being sort of valid in some places and invalid in others, however, so either the courts need to fix Measure 37 rights at a constitutional level, or the legislature needs to revise the Measure 37 concept to that point.
Here is my vision of how Measure 37 could be revised by the Oregon Court of Appeals to conform to the reasoning of the trial judge and yet still have some effect. (A link to her opinion is in the previous post.)
Although she did not say so in her opinion, Judge James would clearly have found that people buy property in reliance on the zoning. She found that some of the plaintiffs had bought their land in reliance on how their neighbors' land was zoned, and if the question had been presented to her she would have had to find that Measure 37 claimants bought their land in reliance on the zoning also.
The court of appeals could find that the state has a legitimate interest in having people who buy land be able to rely on the zoning without being adversely affected by later-enacted land use regulations. This is the basic purpose of Measure 37. The court could, however, say that the state doesn't have a legitimate interest in having people who inherit land or buy it from relatives get compensation because the zoning changed while their relative owned the land. Put another way, if A and B acquired adjacent properties at the same time, why should A get better treatment because A inherited from a relative but B bought from a stranger?
From this reasoning, the court could say that owners of land can go back to the zoning in place when they themselves acquired their property. Respecting, however, the legal rule that corporations are artificial persons, a corporation or limited liability company could not go back to when its principals acquired the property -- if you put your land into a corporation, it counts as a transfer. You can't have the benefits without the disadvantages.
The compensation provisions could be removed. Despite what Judge James wrote, the main purpose of Measure 37 was waiver, not compensation. (Measure 37 allows owners to get a waiver or compensation for zoning rules imposed during their ownership, but allows persons who bought or inherited from relatives to get compensation, but not a waiver, for rules adopted during the prior relative's ownership. I think this was a drafting error.) The result is by no means perfect, but it's fair and defensible. You get to choose between the zoning in place when you bought your land, or the zoning that's in place today.
I don't think this solution will occur to the Court of Appeals (though I would be delighted if it did, with or without citation), but it, or something like it, had better occur to the legislature, or the next initiative will be simpler and stronger. In the continuation I give some predictions.
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