There is a common feeling this week among those involved with Measure 37: shock.
Marion County Circuit Judge Mary James’ decision Friday that the land-use planning law voters approved in November is unconstitutional instantly changed the debate about the law and about land-use planning in Oregon.
The law allows land owners to be compensated when new land-use laws restrict their ability to develop their land. The government can either pay owners or give them waivers that allow them to develop their land as they could have when it was originally acquired.
In response to a lawsuit filed by land-use watchdog group 1000 Friends of Oregon and four county farm bureaus, James found Measure 37 unconstitutional on multiple grounds, one being that the law favors some land owners over others by allowing only those who purchased their land before a land-use law went into effect to file a Measure 37 claim.
Stakeholders on each side say they are amazed at the decision.
“To say it caught me by surprise would be an understatement,” said Ross Day, Director of Legal Affairs for Oregonians in Action, the group that wrote the measure.
“Being an attorney, I thought: ‘What do we do next?’” Day said. “I was sort of in fight or flight mode.”
Since his initial reaction, Day said his thoughts have gone to those affected by the ruling.
“Once I digested it, I felt bad for the people who had their rights restored and in one fell swoop had everything taken away,” he said.
1000 Friends of Oregon sees the ruling as correcting the inequalities in the law.
“We thought Measure 37 was unfair, and we’re delighted a judge agreed with us,” said Kate Kimball, Director of Communications for 1000 Friends.
Day sees the ruling as a case of judicial activism attacking the rights of voters.
“It’s unfortunate that one person feels they can invalidate the votes of over a million
Oregonians because they don’t agree with the measure,” Day said.
Day said Oregonians in Action will appeal the ruling as soon as possible, but in the meantime the group is telling supporters to remain calm.
“It’s not the end of the world,” Day said. “This is why we have appellate courts.”
Kimball said 1000 Friends supports calling a special session of the state legislature to figure out what to do now that Measure 37 has been struck down.
The legislature attempted to clarify the law in their session earlier this year but was unable to compromise.
Kimball thinks a special session would be more productive.
“I think an advantage would be that it would focus their work,” Kimball said, “and they now have guidelines from the judge as to what is constitutional.”
Kimball knows that this victory does not close the issue of land-use planning.
“This is not an end but the beginning of a larger fairness debate,” Kimball said.
University law professor Keith Aoki said he was also shocked at the ruling, especially because it came from a circuit court judge.
“With the judges being elected, I tend to think that would make them more timid,” Aoki said, “but she kind of dug in and made a strong ruling.”
The ruling was broader than the one in 2002 that struck down a similar law, Measure 7, on technical grounds. It is hoped the broader ruling will lead to changes in Oregon’s land-use laws, Aoki said.
“Land-use planning was ripe for a course correction,” Aoki said. “This should lead to a long and healthy discussion on balancing between property rights and state regulation.”
The unexpectedness of the decision makes an appellate ruling another possible surprise, Aoki said.
“I was ready to live with Measure 37,” Aoki said. “I wouldn’t even wager a bet (on the appeal).”