A Circuit Court judge ruled Friday that Jackson County has overstepped its authority with the state of Oregon and has added language that doesn't exist in Measure 37 to wrongly assert that claims can be transferred from one property owner to another.
"Under any legal analysis it is clear the voters did not intend Measure 37 claims to be transferable," Judge Phil Arnold wrote in a 13-page ruling that shot down every legal assertion made by the county.
The ruling resolves a lawsuit the county filed in 2005 to answer the question of transferability.
"We got clarity," said Commissioner C.W. Smith. "That's what we asked for."
He said the county hasn't decided whether it will appeal the judge's ruling.
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"The county does not have the authority to sanction a wholesale disregard for compliance with state statutes that also may govern a particular claimant's application for building permits," Arnold wrote.
Under Measure 37, approved by 61 percent of voters in November 2004, government agencies must waive offending land-use regulations after six months of receiving a claim or pay the property owner compensation for lost value.
Arnold said the county's argument would require adding words that don't exist in the text of Measure 37. The county's legal position also would require the court to ignore text in the measure, he said.
Specifically, the county asserts Measure 37 relief is granted to the present owner, but runs with the land and would be transferred to subsequent owners of the property. "There is no support for this position of the county in the language of Measure 37," he said.
Arnold also stated, "The terms 'transfer,' 'transferability,' 'transferable,' and 'subsequent owner' are not found in Measure 37."
County commissioners maintain that voters intended for Measure 37 claims to be transferred.
But Arnold said he reviewed arguments in the ballot and news reports and editorials at the time the measure was proposed. He found no instance where the issue of transferability was raised.
The state Attorney General's Office has determined that a Measure 37 claim could be transferred once a property owner has made a substantial effort toward acting upon the claim.
Arnold's ruling does not clarify how much effort a property owner would have to make before a claim could be transferred.
Of the 571 claims filed in Jackson County, 310 have been declared valid, eight invalid, four voided and 11 were withdrawn, leaving 238 pending.
About 20 building permits are pending or have been approved so far based on the claims.
Stephanie Soden, spokesperson for the Oregon Department of Justice, said the judge's ruling confirmed what the Attorney General's Office has been saying all along about the issue of transferability and the state's role in approving claims.
The building permits issued by Jackson County that don't have a state-approved claim will be considered unlawful, she said. County officials have said there is only one permit without a state-approved claim.
Soden said it will be up to the county to address how it will notify property owners who have an approved claim from the county that they must also get one from the state.
Commissioner Dave Gilmour said he doesn't believe the county overstepped its bounds in the way it approved claims.
"We were going on the opinions of our own attorneys with some push by other members of the board," he said.
Commissioner Jack Walker, who has been an ardent supporter of Measure 37, disagreed with the judge's ruling.
"It's obvious that the judge believes 61 percent of the people have no clue," he said.
He disagreed with Gilmour that the county was pushed by some commissioners into taking a position that wasn't clearly spelled out in Measure 37.
Walker said the only thing he pushed for was to get a legal opinion from the judge on the transferability issue.
Dave Hunnicutt, author of Measure 37 and attorney representing the county in the lawsuit, said he disagreed with the judge's ruling and was disappointed by it.
"Obviously we don't believe there is any question — the rights are transferable," he said.
Hunnicutt, who didn't get a chance to fully review the ruling Friday, said he will make a decision with Jackson County commissioners over the next 30 days whether they want to appeal.
Reach reporter Damian Mann at 776-4476 or dmann@mailtribune.com.
