Oregon property rights law upheld

Ruling against a lower court, the Oregon Supreme Court on Tuesday upheld a sweeping, voter-approved measure that could allow many Oregon landowners to develop their property more intensively than current land-use regulations allow.

Measure 37, passed by Oregon voters in 2004, allows property owners to seek compensation from local or state agencies if land-use laws and rules reduce the value of their land. If governments can't afford to pay — and none in Oregon says it can — those regulations would be waived.

Measure 37's approval inspired the Washington State Farm Bureau to file a similar property-rights measure, Initiative 933, in this state earlier this month. But supporters and opponents of the initiative said the Oregon Supreme Court's decision won't affect their plans much, if at all.

"It's good news for property owners in Oregon," said Dan Wood, the Farm Bureau's government-affairs director, "but we didn't take the language in Measure 37 as the model for ours."

Environmentalists and other opponents hope to persuade Washington voters to defeat I-933 if it is on the ballot this fall, which would mean its constitutionality would never need to be tested in court, said Aisling Kerins of the Community Protection Coalition.

"It's basically a big win for big developers," she said of the Oregon ruling.

To qualify I-933 for the November ballot, backers must collect signatures of at least 224,880 registered voters by July 7.

Supporters and opponents are fighting over the wording of the ballot title, but Wood said petitions should be available by the second week of March.

Measure 37's approval in Oregon sent ripples across the nation. The state adopted land-use policies in 1973 that are often regarded as a national model for protecting farmland and open space and encouraging compact growth.

Those policies sparked a property-rights revolt that eventually produced Measure 37.

More than 2,000 claims for compensation or waivers were filed after the measure took effect in December 2004. Many landowners simply sought permission to build a home, but some wanted to put large subdivisions or shopping centers on farmland.

The law has been in a legal limbo since October, when Marion County Circuit Judge Mary James said it violated the state and federal constitutions. The state's highest court ruled otherwise Tuesday, saying James' arguments were not persuasive.

The ruling means people whose claims were bottled up after James' decision can go ahead and try to get local and state agencies to approve their development plans.

While Oregon's high court said the measure was constitutional, that is not the last word. There are still a raft of legal disputes involving such issues as whether a landowner can transfer a Measure 37 right to develop property through a sale or a bequest.

"Without some action by the Legislature, it may be years before additional court cases begin to clarify all of the uncertainties about the law," Gov. Ted Kulongoski said in his response to the Tuesday ruling.

"In the process, those cases will entail substantial costs and frustrations for state and local governments and private-property owners throughout Oregon."

Washington's I-933 differs from Measure 37 in several respects.

The Oregon law, for instance, allows landowners to seek compensation for regulations adopted any time after they acquired their property — in some cases, decades ago. James cited that provision in finding the measure unconstitutional.

The Washington initiative contains no similar clause. Instead, it allows all landowners to seek waivers or compensation for regulations adopted any time after 1995.

Wood said the Farm Bureau would not try to rewrite I-933 in light of the Oregon Supreme Court ruling.

He also said the ruling would undercut an argument of the initiative's opponents; some had said after James' ruling that it would be difficult for the Farm Bureau to craft a law that passed constitutional muster.

"They've been saying Measure 37 is unconstitutional and our initiative is like Measure 37," he said. "Now they're caught in a lie twice."

But Kerins said that, while the Oregon Supreme Court ruled Measure 37 was legal, "they didn't say it was fair. ... It creates loopholes for big developers at the expense of the little guy."

Andrew Cook, a lawyer in the pro-property-rights Pacific Legal Foundation's Bellevue office, said the Oregon court ruling could help I-933 if it passes and is challenged.

"Courts do look to other states," he said. "This sets a good precedent for Washington state."

Associated Press reporter Brad Cain contributed to this story, reporting from Salem, Ore. Seattle Times staff reporter Eric Pryne reported from Seattle. Eric Pryne: 206-464-2231 or epryne@seattletimes.com