Measure 37 ruling settles little

Some Jackson County property owners with plans to develop their land got some encouragement last week when a federal judge ruled that waivers granted to them by the county were contracts that must be honored. But we wouldn't advise them to fire up the bulldozers just yet.

Nor should other property owners rush to take more legal action until the tangled mess left by Ballot Measure 37 and Ballot Measure 49 gets sorted out.

Measure 37, passed by voters in 2004, entitled property owners to compensation if land-use restrictions prevented them from developing their land in a way permitted when they bought it. To avoid paying compensation, state and local governments could waive the restrictions and allow the development to occur.

Jackson County issued 571 such waivers.

In 2007, voters passed Ballot Measure 49, which dramatically scaled back Measure 37, effectively halting large developments in favor of a new system of waivers allowing three to 10 home sites on rural land. Measure 49 said holders of Measure 37 waivers could proceed with larger projects only if they had already done enough work to establish a "vested right."

The 25 plaintiffs in the lawsuit argued that the waivers the county issued under Ballot Measure 37 were legally binding, regardless of what Measure 49 said. U.S. District Judge Owen Panner agreed, saying the U.S. Constitution forbids states from passing any law "impairing the obligations of contracts."

Panner's ruling made clear he was not declaring Measure 49 unconstitutional, but he said Jackson County could not rely on Measure 49 "as an excuse to avoid its obligations under plaintiffs' Measure 37 waivers."

Panner's ruling is reasonably clear and straightforward, but it conflicts with state court decisions and leaves one big question unanswered.

The Oregon Supreme Court has already ruled that Measure 49 superseded Measure 37.

In 2007, Jackson County Circuit Judge Phil Arnold ruled that Measure 37 required a waiver from the state as well as one from the county, but Panner's decision addressed only county waivers.

Oregon land-use officials expect state courts to resolve the waiver issue long before the federal courts do. Several lawsuits are pending in other counties in which plaintiffs argue that their waivers are contracts. State officials are advising property owners to wait for the courts to sort things out before spending more time and money on new legal action.

Jackson County commissioners have not yet discussed whether to appeal Panner's ruling. But even if the plaintiffs eventually prevail, there is no guarantee they will be able to build.

All the usual requirements for development still must be met, including adequate water supplies, septic systems and other considerations.

It's unfortunate that some property owners are caught in this seemingly endless battle. But it's an example of what can happen when extremely complex legislation is enacted by intiative.

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