Court dashes development waiver hopes

A federal court ruling Tuesday dashed the hopes of owners of 571 Jackson County properties who received waivers to develop land under Oregon's Measure 37.

The 9th U.S. Circuit Court of Appeals struck down a lower court decision and found that there was never any contract between Jackson County and property owners who received Measure 37 waivers.

"Indeed, the waivers disavow any promise to the property owners," the court wrote in a one-page memorandum that boiled year's of legal debate down to two paragraphs.

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 largely was overturned by Measure 49 in 2007.

By the time Measure 49 passed, Jackson County officials had approved the 571 waivers, affecting about 60,000 acres, with many of the waivers granted to elderly property owners.

The 9th Circuit Court cited language used in documents Jackson County issued in granting a land-use waiver to bolster the argument the waivers didn't offer any promises: "Jackson County does not promise Claimant(s) that Claimant(s) will eventually be able to put the property to any particular use."

In November 2008, 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 could not be overturned by Measure 49.

In a separate ruling, 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. In almost all cases that reduces the development potential of the property.

On Jan. 30, 2009, Panner put his ruling on hold pending an appeal to the 9th Circuit Court.

A group called Citizens for Constitutional Fairness, which represents more than 50 local landowners, brought the lawsuit against Jackson County and has vowed to take the legal issue to the U.S. Supreme Court.

"I'm surprised and disappointed," said Medford attorney Bob Robertson, who represents the landowners. "We decided, if we lose, we're going to take this to the U.S. Supreme Court."

He said news of the court's ruling will be a blow to local landowners, who saw victory in sight after the Panner ruling.

"I'm really disappointed for all the people who have lost their land-use rights," Robertson said.

County Administrator Danny Jordan said the court's decision would settle three important legal issues for the county.

The waivers were not contracts; the county didn't owe anything to the property owners who had Measure 37 claims and; the court reversed Panner's ruling and found the county waivers were an administrative decision and not judicial, and therefore didn't violate the separation of powers doctrine.

"Publicly, this has been a complicated issue as we try to follow the law as things change before us," Jordan said. "For us, at this point, it offers pretty good clarity until whatever happens next."

Rogue Advocates, a land-use watchdog group that joined the county in the suit, praised the decision.

"At a gut level, trying to say government policy decisions are contracts doesn't make sense," said Jimmy McLeod of Rogue Advocates.

McLeod also said it doesn't make sense that new laws can't be created to correct past problems and be applied to previous administrative decisions as was the case with Measure 49.

He said Measure 37 was billed as giving landowners the ability to build a couple of homes, but it rapidly turned into a real estate land grab.

If the Citizens for Constitutional Fairness takes the case to the U.S. Supreme Court, McLeod said, his group would continue to defend the county's position.

Reach reporter Damian Mann at 541-776-4476 or e-mail

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