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October 24, 2005

IN MY OPINION: Adell Amos comments on land use decision in October 23 Oregonian

On November 2004, Oregon voters passed Ballot Measure 37, an initiative that provides compensation for landowners when land-use regulations reduce the value of their property or prevent them from using it in ways they see fit. On Sunday, October 23, The Oregonian printed two commentaries on the recent Marion County Circuit Court decision that sent Measure 37 back to the drawing board. Assistant Professor Adell Amos, director of the Environmental and Natural Resources Law Program, wrote in favor of the decision. She is a water law and natural resources law attorney who most recently worked for the solicitor’s office in the Department of the  Interior. She grew up on the family farm in Missouri.
Sunday, October 23, 2005
Adell Amos 

PRO: The judge understood that the measure unfairly created a whole new class of losers among landowners

PRO: Oregon can protect land-use laws and property rights

As the framers of our state constitution intended, the courts have stepped in to protect the rights of Oregonians — all of them, not just a select few. That’s at the heart of the Marion County Circuit Court’s Oct. 14 decision revealing that Measure 37 is not the long-overdue protection for private property interests it claimed to be.

For the individual property owners in this case, and for many other Oregonians, Measure 37 negatively impacts their property rights. The landowners who filed this lawsuit had purchased property under existing land-use rules and had relied on those rules to protect their livelihood and investment. These plaintiffs operate businesses, run farms, provide jobs, contribute to the economy and pay taxes. For these property owners, land-use regulations protect the value of their property. Measure 37 changed the rules of the game after they purchased land — just as Measure 37 backers claim the Oregon Legislature did in 1973, when it enacted a comprehensive land-use law.

The court’s decision, declaring Measure 37 unconstitutional, reminds us that the initiative process is an extension of the legislative process. As such, it is subject to the same constitutional scrutiny as any act of the Legislature. Our government was created by people who distrusted consolidated power. They designed a system of checks and balances so that no single branch of government could overwhelm the others.

Under our system the legislative branch, or in this case, the voters through the initiative process, hold the responsibility for making choices needed to protect public health, safety and welfare of the citizens of Oregon. When Oregonians use their initiative authority they operate within, not independent of, this system of checks and balances. The court serves as a constitutional check on the exercise of legislative power.

Although Measure 37 claimed to limit the impact of government regulation on private property, it actually imposed a new governmental system that favors one group of property owners over others. Measure 37 picks which landowners count and which do not based on the date of purchase. People who purchased property before land-use regulation was in place benefit from Measure 37; people who purchased after don’t. Measure 37 picks winners by designating a whole new class of losers.

David Adams, one of the plaintiffs, purchased his property after the land-use regulations were in place; his neighbors purchased their property before the land-use regulations were in place. Pursuant to an application under Measure 37, the neighbors received permission, despite existing land-use rules, to subdivide their property. The neighbors’ land is now being cleared for development. If the county wanted to enforce the land-use law on the neighbors’ property, compensation would be due. Adams, however, receives no payment for his compliance. And, if the development causes Adams’ property value to diminish, he receives no relief under Measure 37. Here, the court found, among other things, that Measure 37 violated the Oregon Constitution because it created a special class of property owners that receive benefits unavailable to other property owners.

There is a way to achieve the kind of change in our land-use laws that the people of Oregon seek. Because Measure 37 failed to guarantee basic fairness, the court struck it down. Our representative institutions, duly elected by the people, are specifically designed to strike a fair balance among competing interests such as those at issue in the debate about Measure 37.

We have the opportunity to avoid the piecemeal approach that Measure 37 has fostered. Oregonians want a fair way to protect property interests. Oregonians also know that some actions on private property can destroy a neighbor’s property interest and harm the public. That’s one of the reasons we have a system of land-use laws.

These are tough public policy decisions that do not lend themselves to up-or-down choices on a ballot initiative. It’s a mistake to assume that this is an either-or choice between protecting private property or preserving our land-use laws. It is possible to do both.

Judge Mary James’ opinion helps set us on that course.

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