Ruling Against New Land-Use Law Sows Uncertainty across Oregon

For decades, Jean Jesse has dreamed of building a home on the plot she owns near the Portland suburb of Hillsboro. She may have to dream a little longer.

PORTLAND, Ore. — For decades, Jean Jesse has dreamed of building a home on the plot she owns near the Portland suburb of Hillsboro. She may have to dream a little longer.

When voters overwhelmingly approved a ballot measure last year loosening some of the strictest zoning restrictions in America, Jesse hoped she would be able to erect a house on the land she's owned since 1969.

But a Marion County judge in October ruled that the new law is unconstitutional, the latest twist in a legal headache uncorked by the measure and one that throws claims like Jesse's into limbo.

"I got a new tractor for Christmas and irrigation pipes for my birthday. Now we can't build the house," said Jesse, 71, who currently lives in a trailer on the property.

The controversy stems from a revolt on Oregon's land-use laws that have protected rural areas from development.


Property owners last November helped pass Measure 37. The law says property owners whose land has lost value because of land-use regulations adopted after they bought it must either be paid for the loss or granted a waiver of the restriction.

Since it took effect state officials say more than 2,000 property owners have filed paperwork contending that state or local land-use regulations have devalued their holdings.

But there has been no uniform application of the measure.

"All, or almost all, the counties adopted their own ordinances, procedures, fees, or whatnot," said Ron Eber of the Oregon Department of Land Conservation and Development.

The Oct. 14 ruling by Marion County Circuit Judge Mary James has resulted in even more debate.

She said the law violates the "equal privileges and immunities" provisions of the state constitution because it gives benefits to people who bought their land before regulations were applied but not to those who purchase property later.

The state attorney general's office says it is unclear whether James' ruling applies to all 36 counties, or just the four that were party to the lawsuit to void it.

The decision stunned Jesse and her husband, who said they had invested about $70,000. Before the judge's opinion, the couple got a waiver and built roads, wells and a barn on their plot -- assuming Measure 37 would let them put up a one-story home there.

Lane Shetterly, director of the state Land Conservation and Development Department, said the agency will continue to process Measure 37 claims against state land-use regulations but with advisories to applicants that an opinion has been issued.

Some counties have ceased accepting Measure 37 claims, including two suburban counties where many of them have been filed: Clackamas and Washington.

In the Willamette Valley town of Canby, Duane and Janice Weeks had hoped to sell part of their 20 acres or give some of it to their daughter after Measure 37 passed.

But their plans have been put on hold because of James' ruling. Under land-use laws that Measure 37 affected, a farm that size must be sold whole, and only one house is allowed on it.

"We're twisted by this," Duane Weeks said in the comfortable farm house they have occupied for 39 years.

James' ruling comes amid an ongoing debate over balancing the rights of property owners versus protecting farmland and the environment.

A poll last March indicated that Oregonians want both. Of the 500 adults surveyed, 67 percent said they "firmly believe protecting the rights of the property owner is very important." But 64 percent said protecting farmland is "very important," and 61 percent said the same for protecting the environment. The poll had a margin of error of 4.5 percentage points.

Since Measure 37 was approved by voters, the state is required by law to appeal its rejection.

"We can get it to the Oregon Supreme Court as fast as we can and seek an expedited review," said Kevin Neely, spokesman for Attorney General Hardy Myers.

But even with a fast-track approach, he said, oral arguments are unlikely until spring, with no decision expected until next fall.

Until then, Jesse and her husband are staying in their trailer.

"I may be dead before this thing gets settled," she said.

Source: Associated Press

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