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Reopening a Can of Land Use Worms

Oregon voters unwittingly opened a squirmy can of worms in 2004 when they passed Measure 37. They thought they had at least partially closed the


Oregon voters unwittingly opened a squirmy can of worms in 2004 when they passed Measure 37. They thought they had at least partially closed the can three years later when they passed Measure 49. But now a federal district court judge has pried the can wide open again.


Back story: Under Measure 37, Oregonians who claimed the value of their property had been diminished by state land use laws could demand that local governments either give them a waiver from the restrictions or compensate them for the (theoretical) loss of value.

When Oregonians realized that M37 threatened to cover vast swaths of rural land with houses and shopping malls they passed Measure 49, which restricts the amount of development M37 claimants can do. Last week, though, US District Judge Owen Panner handed down a decision that could toss Measure 49 out the window.

Ruling in a Jackson County case, Panner held that a grant of development rights under Measure 37 amounted to a binding contract, and the county had to abide by that contract regardless of Measure 49.

Although the ruling applies only to Jackson County and state courts don't have to follow it, foes of Oregon's land use laws hope it will set a precedent they can use more broadly. "Time will tell, but I think anybody who has a waiver from a county ... would be protected by this ruling," said Medford lawyer Bob Robertson, one of the attorneys for the plaintiffs.

One of the other lawyers for the plaintiffs, Jack Swift, is the Josephine County director of Americans for Prosperity, a national group dedicated to advancing right-wing economic policies. That group was chortling merrily after the ruling. "This is a tremendous victory for Oregon property owners, and for Americans for Prosperity," said Oregon State Director Jeff Kropf. "For too long, our state has used a heavy hand to restrict the uses of privately owned property."

Not so fast, say the supporters of Oregon's land use laws. They argue that Judge Panner's decision was legally and logically flawed.

"Unfortunately, the judge apparently didn't understand the state land use system," Paul Dewey of Central Oregon LandWatch told the Source. "His underlying premise that a county may create a contract to waive land use laws is wrong, since the state also enforces land use laws. A county can't contract away rights it doesn't possess."

Dewey and other lawyers predict Panner's ruling will be challenged in the Ninth Circuit Court of Appeals, which has a liberal track record. If Jackson County doesn't contest the ruling, a private group such as 1000 Friends of Oregon might. Meanwhile, "We believe Measure 49 remains in effect," said the group's executive director, Bob Stacey.

We're not lawyers, but it looks to us like Dewey is right: Panner's ruling is legally and logically flawed. It also flies in the face of the clearly expressed wishes of the people of Oregon. We hope the appeals court will join us in giving it an enthusiastic and vigorous BOOT.

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