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MailTribune.com
  • Court finds Medford's plan to take land in exchange for lot split unconstitutional

  • Medford officials violated the Constitutional rights of a local property owner by attempting to "extort" a portion of his land in exchange for approval of a lot split, the Oregon Court of Appeals has ruled.
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  • Medford officials violated the Constitutional rights of a local property owner by attempting to "extort" a portion of his land in exchange for approval of a lot split, the Oregon Court of Appeals has ruled.
    "I felt like they were holding a gun to my head," said Jed Brown, a Medford resident who owns a half-acre parcel on Finley Road in west Medford.
    In the July 5 ruling, the appeals court upheld earlier decisions by the Oregon Land Use Board of Appeals and Jackson County Circuit Court that found the City Council violated both the U.S. and Oregon constitutions in taking a portion of Brown's property.
    In 2007, Brown filed for a lot partition so he could build two houses on his property.
    The city needed a 19-foot wide area at the back side of the land to create a portion of a pedestrian thoroughfare known as Brady Way. Brady Way hasn't been built yet.
    As a condition of the partition, the city required Brown to give up a portion of his property.
    However, the court ruled that Brady Way had no direct impact on the subdivision request by Brown. Brown also didn't need Brady Way to gain access to the proposed subdivision since his driveway would be off Finley Lane.
    The appeals court specifically cited Article 1, section 18 of the Oregon Constitution in which a private property can't be taken for public use without just compensation.
    In addition, the city's actions violated the "takings clause" of the Fifth Amendment of the U.S. Constitution.
    But the court was particularly troubled by the city imposing an unconstitutional condition of either giving the land to the city or not receiving permission for the lot split.
    Citing case law, the court stated, "An attempt by government to extort is no less reprehensible than a fait accompli."
    In its court filings, the city justified the taking of the property on the grounds that the Planning Commission approved the concept of creating Brady Way as part of long-range goals to provide a pedestrian throughfare.
    The court found the city was working under the misconception that the partition request was in some way connected to its goals of creating Brady Way.
    Lori Cooper, senior assistant city attorney, said no decision has been made on whether the city would appeal to the Oregon Supreme Court.
    She said she couldn't comment on an ongoing case.
    City staff will review the appeals court ruling and determine the city's options, she said. At a future date, the options will be presented to the City Council.
    — Damian Mann
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