Judge dismisses Measure 37 claims

A Jackson County Circuit Court judge last week dealt another blow to five landowners struggling to hold on to some rights from a former property rights law.

In issuing his two-page dismissal, Judge Daniel Harris cited a recent Oregon Supreme Court ruling that found Measure 37 is essentially dead thanks to the passage of Measure 49.

Before Measure 49, Jackson County had approved 571 Measure 37 waivers of land-use rules on about 60,000 acres. The county recently took steps to create a process under Measure 49 that would help determine some rights for a limited number of those Measure 37 waivers.

Opponents argued that the county's process illegally limited their rights because they considered all approved Measure 37 claims to be constitutionally protected.

"The ruling was very clear, unequivocal and precise," said Commissioner C.W. Smith. "All the issues raised by the plaintiffs were dismissed. It confirmed there was a good legal basis for the position we took."

Commissioner Dave Gilmour said the court case also was a victory for Oregon's land-use laws.

If the case had upheld the plaintiff's arguments, he said, "It would have destroyed land-use planning in Oregon."

The five landowners who sued Jackson County were Don Rowlett, Albert Gray, Robert Ferns, Morton Gossett and Kenneth Bigham.

Measure 37, approved by voters in 2004, attempted to provide property owners who have owned their land for many years with relief from development restrictions imposed by Oregon's land-use laws. But, after property owners filed about 7,000 state claims under Measure 37, some of them potentially far-reaching, voters approved Measure 49, which overturned the property rights law.

The landowners argued that the waivers they'd received under Measure 37 gave them a "vested right" to pursue the development of their properties.

However, the ruling stated that there is no "continuing viability" for those who have Measure 37 waivers. Measure 49 does have provisions that lay out a complicated method of determining whether a landowner has residual rights if it can be proved that significant steps have been made toward accomplishing a particular development.

Medford attorney Bob Robertson, who represents the landowners in this case, said these two setbacks have been major for local landowners.

"I can't say we are encouraged," he said. "We feel the Supreme Court hadn't considered the constitutional implications of these cases."

Robertson thinks that landowners rights under Measure 37 are constitutionally protected and can't be taken away by Measure 49.

Despite the court cases, Robertson said, "We think this battle is far from over."

He said landowners will continue to fight in the courts to prove their rights are constitutionally protected. He said they think that when Jackson County issued the waiver, it was entering into a contract with each of the landowners.

While some waivers applied to large tracts of land, many were relatively small parcels, and the owners had hoped to make a little something in their retirement, said Robertson.

"Most of these people are old, poor people," he said.

Share This Story