Tying up loose ends: resolving ambiguity in ballot measure 37's public health and safety exemption.

• Author: Lee, Jeannie
• Position: Oregon

Oregon's property rights measure, known as Measure 37, has had immeasurable impacts on the state and its comprehensive land use planning program, which has been in existence for over thirty years. While Measure 37 threatens to erode the gains made by the state's planning program, all levels of government may be able to use the exemptions embedded in the statute as a tool to preserve some of the goals of Oregon's planning program. This Comment examines the boundaries of the public health and safety exemption in Measure 37, by applying the analytical framework established in Portland General Electric v. Bureau of Labor and Industries. Under this analysis, Oregon courts are likely to find that the government may exempt some land use regulations and cast a wider regulatory net than initially though under the regulation. This Comment also discusses three different procedural options available to aggrieved claimants or their neighbors in response to an approved Measure 37 claim.

1. INTRODUCTION A. Measure 37 B. Land Use Regulations II. ORIGINS OF OREGON'S LAND USE PLANNING SYSTEM A. Senate Bill 100 B. Trouble Brewing--Measure 7 III. EXERCISING THE POLICE POWER IV. STATUTORY INTERPRETATION OF MEASURE 37'S PUBLIC HEALTH AND SAFETY EXEMPTION A. The PGE v. BOLI Methodology 1. Level One--Text a. "Such As' b. Ejusdem generis 2. Level One--Text in Context a. Public Health b. Public Safety 3. Level Two--Legislative History B. Omission of the "Public Welfare" C. The Public Health and Safety Tautology V. PROCEDURAL AVENUES AND THE POTENTIAL FOR PROCEDURAL CHANGE VI. CONCLUSION I. INTRODUCTION

   For some, the passage of Oregon's property rights measure in 2004, known as Measure 37, (1) has proven to be a pyrrhic victory. Some supporters of Measure 37 had hopes that it would allow them to realize their financial dreams by converting their land into huge subdivisions." Others had more modest dreams of simply building a home on their property that was barred otherwise by current land use laws. (3) Regardless of individual motives, supporters united to pass Measure 37, which allowed some landowners the chance to develop their land under fewer land use regulations or receive "just compensation" for the lost market value of their property due to the regulations. (4) Now over three years after Measure 37's passage, landowners in resource-sensitive coastal and rural areas are clamoring to develop on their land, voters who once supported the initiative are now changing their minds, and landowners are bombarding the government with Measure 37 claims. The question that currently confronts the state, Metro, (5) and local governments is how to proceed. One avenue is to look directly at the tools embedded in Measure 37--the exemptions for certain land use regulations. In particular, subsection (3)(B) of Measure 37, which exempts regulations that restrict or prohibit activities protecting the public health and safety, appears to cast a wide regulatory net in favor of the government. However, the full extent of regulatory power that the exemption grants to the state, Metro, and local governments still remains ambiguous.

   The sheer number of Measure 37 claims and total acreages is overwhelming. The most current tally of the total number of statewide Measure 37 claims is 7717 claims, totaling 792,327 acres. (6) As of July 2007, the total value of claims was approximately $15 million in value. (7) Most recently, from October 20, 2007 to December 5, 2007, the government has received 6857 claims, (8) asking for a total compensation of $19,844,379,986 for these claims. (9) Additionally, an overwhelming number of claims are in exclusive farm use zones. (10) It The government already has applied the public health and safety exemption to some of the Measure 37 claims. (11)

   Understanding the statutory meaning of the exemption, and its potential impact on existing and future claims, leads the state, Metro, and local governments to confront many shades of gray. The purpose of this Comment is to examine the boundaries of the public health and safety exemption by applying the analytical framework established in Portland General Electric v. Bureau of Labor and Industries (PGE v. BOLI). (12) Under level 1 of the PGE v. BOL/analysis, the court's interpretation of the text is limited to the text itself and the context of the measure, which includes the voters' intent in passing the initiative. Under this analysis, the court is likely to find that the government can justify more land use regulations than appearing at first glance under the public health and safety exemption.

   In the near future, the tension between the perception of the government as a "one-size-fits-all bureaucracy run amok" (13) by Measure 37 proponents and the government's desire to maintain a thoughtfully crafted land use planning system will cause more litigation. (14) The government will most likely argue for a broad reading of the public health and safety exemption while developers and landowners will argue for a narrow construction. For now, the Oregon courts have not begun to explore the theoretical boundaries set by the voter's intent; however, the state, Metro, and local governments should hesitate to assume that the application of the public health and safety exemption can only apply to a limited set of land use regulations as listed in the statute. Although the exemption does not include regulations that protect the public welfare, thus curbing the police power, the government's power to regulate may not be completely weakened.

   This Comment is organized into five parts. Part I includes a brief description of Measure 37 and the meaning of land use regulations, which are at the heart of the Measure 37 debate. Part II presents an introduction to the origins of Oregon's comprehensive land use planning program, including Senate Bill 100 and Measure 7, an initiative crafted in an attempt to erode the gains made by Senate Bill 100. Both Senate Bill 100 and Measure 7 are hugely important to the history of land use regulation and provide the backdrop for the rise of Measure 37. Part III discusses the police power, which grants the government the authority to enact regulations, including land use regulations, to protect the public health, safety, and welfare. Part IV presents the PGE g. BOLI methodology for statutory interpretation in Oregon and offers to show how the voters' intent in passing Measure 37 does not necessarily limit the scope of the initiative's public health and safety exemption. Finally, Part V discusses three different procedural options available to aggrieved claimants or their neighbors in response to an approved Measure 37 claim. Aggrieved persons can either bring a takings claim, ask for declaratory relief, or petition for a writ of review to define their rights in circuit court. Despite the existing avenues for judicial review, Measure 37 oversteps the Land Use Board of Appeals to hear such claims and relegates land use decisions to the circuit court system. Because of their expertise, the Land Use Board of Appeals would be the most appropriate judicial body to review decisions regarding the public health and safety exemption.

   1. Measure 37

      In November 2004, the majority of Oregonians approved Measure 37, but not without controversy. The chief petitioner of the initiative, Oregonians in Action (OIA), pushed forward Measure 37 to correct some of the perceived wrongs of Oregon's land use planning system. The drafters cleverly worded Measure 37 to downplay the message of undoing the state's carefully crafted land use system and to highlight the message of making property owners whole, similar to the message in Measure 7, which focused on fairness. Proponents readily accepted the message of fairness because many of them sought to profit from development of their land. State administrative regulations requiring rural landowners to have gross farm receipts of $80,000 per year for a set period of time before they could build new homes on their high value farmland (15) created tension and added fuel to the property rights movement. At the same time, opponents saw Measure 37 as taking a jackhammer to the state's sound land use planning policies aimed to preserve open space and limit urban growth. (16) Organizations such as 1000 Friends of Oregon, Audubon Society of Portland, Oregon Chapter of the American Planning Association, and the Sierra Club united in their fight to "keep Oregon a great place to live." (17)

      Why all the fuss? Measure 37 entitles a private property owner, or family member who subsequently becomes the property owner, to receive "just compensation" if, after gaining ownership, the state or local government enacts or applies a land use regulation restricting the property's use, thus reducing its fair market value. (18) Alternatively, public entities can "modify, remove, or not apply the land use regulation." (19) Not only does Measure 37 apply to all future applications of land use regulations, but Measure 37 also has retroactive application to all existing land use regulations. (20)

      Even before claimants began submitting their claims to the state and local governments, the writing on the wall was clear--the state's overcommitted budget would be unable to compensate all or most claimants, thus the primary remedy for many landowners would be near-total deregulation subject to certain exceptions. (21) One circuit court clarified the link between waiver and compensation by ruling that "a waiver granted ... need not be proportional to the compensation due a claimant under the statute." (22) Thus, Measure 37 creates a low bar, allowing government agencies to waive regulations provided that only some compensation is due. (23) Although most governments are more likely to waive regulations, some government agencies have set aside funds for exceptional claims; (24) however only one--the City of Prineville--has made a payment for just compensation to a...