Land-use dispute drags on
While lawyers, judges and legislators try to untangle Oregon's two competing land-use ballot measures, some elderly Jackson County land owners are running out of time to see what happens to their development rights.
"Unfortunately a lot of these people are at advanced ages," said Medford lawyer Bob Robertson, who represents property owners fighting for development rights that were available under Measure 37.
"If it takes a year and a half to settle it in the courts, some of these people may not survive," Robertson said.
In November, U.S. District Judge Owen Panner issued a ruling that Measure 37 waivers granted to Jackson County property owners should be considered a contract protected by the U.S. Constitution and cannot be overturned by Measure 49. Meanwhile, the Oregon Supreme Court has ruled that waivers issued under Measure 37 are converted to whatever rights the property owners may have under Measure 49.
On Jan. 30, Panner put his November ruling on hold pending an appeal to the 9th U.S. Circuit Court of Appeals. Panner said the property owners have not shown that they would suffer harm by waiting until the appeals court rules.
As the case makes its way through the courts, property rights advocates are hoping for legislation this year that could clear up some of the ambiguity and give some relief for those who received a Measure 37 waiver from a county, but not from the state.
The state's position is that a Measure 37 claim has no standing if a waiver was only granted by a county.
Voters approved Measure 37 in 2004 to give longtime property owners relief from development restrictions under Oregon land-use laws, or payment for the lost value of their land. But the law was overturned by Measure 49 in 2007. Jackson County officials had approved 571 Measure 37 waivers of land-use rules on about 60,000 acres, and many of the waivers were granted to elderly property owners.
With so much confusion, Robertson said property owners are considering seeking some kind of compensation for the loss of their rights rather than wait for the state or the county to allow them to proceed with a development project.
"Some of the people feel they have been so victimized by the state that they say they would prefer to have the money," he said.
Judge Panner also ruled that environmental groups can offer a friend-of-the-court brief that could challenge the judge's ruling but not necessarily give those groups any firm legal standing in the case.
Williams-based Rogue Advocates argues that the ruling undermines the people's vote on Measure 49 and could lead to irreversible loss of thousands of acres of farms and forests.
Robertson said the state is putting pressure on environmental groups to try to interfere in the lawsuit.
"They should have no involvement in this — it's a political deal," he said.
Richard Whitman, director of the Oregon Department of Land Conservation and Development, denied Robertson's charge that the state has pressured environmental groups.
"To my knowledge the state has made no request that those groups get involved in this litigation at all," he said.
Whitman said the state's only interest is in resolving all the legal issues as quickly as possible to help the people who have been waiting five years to find out what they can do with their property.
"We're interested in getting this uncertainty resolved with as little expense and pain as possible," he said.
Whitman hopes that proposed legislation this session will help clear up some of the more contested issues related to Measure 37 and Measure 49.
Dave Hunnicutt of Oregonians in Action said a legislative solution could be passed this year to help property owners who have been shut down by Measure 49.
"There is a fair amount of sympathy in the capitol," he said.
Hunnicutt said three counties — Jackson, Josephine and Columbia — have the most problems with landowners not filing a separate waiver with the state.
No matter what happens in the courts or the Legislature, Hunnicutt said he's advising landowners to continue forward with any claims under the provisions of Measure 49.
If the courts eventually rule in the property owner's favor, Hunnicutt said it could help restore some of the rights that appear to have been lost.
"I don't think anybody should give up," he said. "We are encouraging people to hang in there."
Hunnicutt said the legislation also should speed up the DLCD's so-called "express lane" option, which he said has so far proven anything but fast.
Whitman, of the DLCD, said the state won two court cases with Jackson County over the issue of filing separate waivers, which could have led to a higher incidence of property owners who are having problems here.
"There is a larger group in Jackson County than anywhere else," he said.