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County counsel: Delay M-37 claims |
Three claims are suspended to await
the Oregon Supreme Court's decision on the measure |
By Gary Allen,
Newberg Graphic news editor
E-mail Gary at
gallen@eaglenewspapers.com |
The Oregon
Supreme Court should rule on the constitutionality of Measure 37
before Yamhill County again considers claims made under the property
compensation law.
That was the advice Yamhill County Counsel John Gray gave Monday to
the Board of Commissioners. The county has received 150 claims since
the law was enacted in December 2004.
Gray’s advice interrupted three claims filed by landowners in the
Newberg area, claims that were to be heard Wednesday by the
commission. The claims were by Gary Guthrie, Mildred Weatherly and
Velma Chaffee to develop multiple lots on parcels ranging in size
from 28 to 100 acres.
Gray sent to the trio’s lawyers a proposed agreement to suspend
their hearings until the Supreme Court case was decided. All three
lawyers agreed.
“It was just basically a process issue,” Gray said. “In this
process is the applicant interested in just waiting?”
Gray’s suggestion that the board consider holding off on hearing
Measure 37 claims was precipitated by an October ruling by Marion
County Circuit Court Judge Mary James that Measure 37 violated the
U.S. and Oregon constitutions.
Gray said the incentive for claimants to wait is simple: Although
James’ ruling was specifically against M-37 claims directed at the
state and four counties, none of them Yamhill, it has cast doubt
that claims in any county will be valid if James’ ruling is upheld
by the Oregon Supreme Court. If the court overturns James’ decision
and claims go forward, it would be more cost effective for claimants
to present their case just once, Gray said.
Eleven more claims have been forwarded to the commissioners by
Yamhill County Planning Director Mike Brandt in the past few weeks.
Typically, Gray said, the claims are reviewed by the commissioners
during informal session and Commissioner Mary Stern recommends a
public hearing be held on each claim. The two other commissioners,
Kathy George and Leslie Lewis, agree to public hearings on only the
largest claims, Gray said.
The three commissioners battled early in the Measure 37 process
over the necessity for public hearings. Lewis and George sided
against Stern in insisting hearings were unnecessary as the county
didn’t have the money to compensate property owners for value loss
due to government regulation.
Gray suggested that the board ask the 11 claimants to delay their
cases. The board discussed the matter Monday and Wednesday during
informal and formal sessions, but reached no decision.
“My advice to the planning director is to go ahead and accept
claims and process those claims, but not to issue development
permits ... because the state claim is invalid,” he said.
James’ decision was heralded by organizations seeking to overturn
the law, including 1000 Friends of Oregon, five farm bureaus and a
number of individuals. The decision was decried by proponents of the
bill, including its authors Oregonians in Action. The OIA
recommended on its Web site that property owners proceed with
caution when filing Measure 37 claims, knowing that if the Supreme
Court upholds James’ decision any money spent filing claims will
likely be lost.
Because the measure was ruled unconstitutional, it was
automatically appealed to the Supreme Court on behalf of the
defendants, which included five state agencies and three counties.
The Supreme Court, in an unusual move recognizing the impact James’
decision is having on counties’ ability to process Measure 37
claims, agreed to expedite a preliminary decision to January.
James’ ruling was threefold: She said the measure violated the 14th
Amendment of the U.S. Constitution concerning due process because it
didn’t afford claimants’ neighbors the right to review and object to
claims.
James also found that Measure 37 violated the Oregon
constitution because it suspends laws, an act that can only be
undertaken by the legislature. Measure 37 requires that government
bodies, typically city councils and boards of commissioners, either
compensate property owners for actions that adversely their
property, or not enforce those laws. By not enforcing the land use
laws, the property owners may develop the land under the laws in
place when they purchased the land, not the current land use laws.
Finally, James ruled that Measure 37 created an elite class of
property owners who enjoyed rights not available to their neighbors.
Another pending case could either complicate or simplify the issue.
Dooling vs Baker County would extend James’ decision to cover all
counties, effectively blocking the state and all counties from
hearing Measure 37 claims. It’s uncertain whether the Dooling case
will be heard before the Supreme Court considers James’ decision. |
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From
Dec. 3,
2005, Newberg Graphic
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