Court upholds Measure 37.

Byline: Edward Russo The Register-Guard

The Oregon Supreme Court on Tuesday upheld Measure 37, clearing the way for Kenny and Marta Gee of rural Creswell and other Oregon landowners who chafed under government land use restrictions to move ahead with plans to develop their properties.

"It's wonderful," said Marta Gee, who along with her husband filed the first Measure 37 claim in Lane County. "It restores my faith in the Supreme Court, that they have finally upheld what the voters wanted."

The law, passed by state voters in 2004, requires governments to pay property owners if their land values have been reduced by zoning and other land use rules. Instead of paying, governments can waive the rules.

Tuesday's ruling will trigger more Measure 37 claims from property owners who have been waiting for the court's decision, observers said. It also means that some government entities that had halted processing the claims will start processing them again.

Measure 37 supporters praised the ruling; opponents lamented it. And legal fights over how the law is applied in Oregon are far from over, government leaders said.

"Without some action by the Legislature, it may be years before additional court cases begin to clarify all of the uncertainties about the law," Gov. Ted Kulongoski told The Associated Press.

Controlled-growth advocates 1000 Friends of Oregon and other groups last year challenged the law. Marion County Circuit Court Judge Mary Mertens James ruled in October that the measure violated the Oregon and U.S. constitutions.

On Thursday, the high court reversed her decision.

"Whether Measure 37 as a policy choice is wise or foolish, farsighted or blind, is beyond the court's purviews," the opinion said. "Our only function in any case involving a constitutional challenge to an initiative measure is to ensure that the measure does not (contradict) any pertinent, applicable constitutional provisions. Here, we conclude that no such provisions have been" contradicted.

The decision dealt a blow to 1000 Friends of Oregon. "We are disappointed in the ruling, but while the court found that Measure 37 was legal, it did not find that Measure 37 was fair," said Elon Hasson, the organization's government affairs director.

He said 1000 Friends had not considered whether it will appeal the ruling to the U.S. Supreme Court.

With Measure 37 upheld, Oregon will see more proposed developments that are incompatible with adjoining properties, Hasson said.

For example, a Clackamas County couple has used Measure 37 to submit plans for a rock quarry near homes outside Molalla, he said.

Governments must find ways to pay landowners for their claims instead of waiving building restrictions, he said.

Across Oregon, 99 percent of the 1,255 Measure 37 claims have come from rural landowners, many of whom want to remove government building restrictions on farm and forest land, said Kent Howe, Lane County planning director.

The Gees are among them.

The couple owns 56 acres two miles south of Creswell off Highway 99, just outside Creswell's urban growth boundary.

Kenny Gee and his brothers bought the land in 1973 before the county adopted its comprehensive land use plan and zoned the property for exclusive farm use. That designation prevented the Gees from subdividing their property for a housing development.

In filing their claim, the Gees estimated that the building restrictions had deprived them of potential value of their property, which they estimated at $408,977 to $7 million.

Now with their claim approved by the county and Measure 37 declared constitutional, Marta Gee said she and her husband only have to wait for the state Department of Land Conservation and Development to approve their claim.

"We don't expect any trouble with the state," Marta Gee said. "Our initial contact with the state was very favorable, and they didn't seem to have any problem with putting (the claim) on hold while it was being heard by the Supreme Court."

If they can provide adequate water to their property, the Gees plan to subdivide their land, perhaps with lots ranging from 2 acres to 10 acres. "What we hope to be able to do is make a nice, upscale, rural subdivision," Marta Gee said.

Said Howe: "If the state says OK, they can get back to us, and we will issue building permits."

So far, 74 Measure 37 claims have been filed with Lane County. Only one has been filed with the city of Eugene, and none has been filed with Springfield.

Lane County officials have approved 12 of the claims, including the Gees' claim. The county continued to process claims while the Supreme Court worked on its ruling. One claim has been denied, Howe said, with a couple of others withdrawn. The remaining claims are being processed in a timely manner, he said.

Tuesday's ruling did not answer other legal questions swirling around Measure 37. Thirty-one lawsuits have been filed by property owners and various local governments over aspects of the law, Howe said.

Glenn Klein, an attorney for the city of Eugene, said there are disagreements over whether a waiver of a land use rule can be transferred if the property is sold.

Disputes have arisen about the exceptions in Measure 37, he said, which allow governments to enforce land use regulations if they are for protecting public health and safety, as well as to comply with federal environmental laws.

The lawsuits "eventually will bring some clarity to the meaning of parts of Measure 37, but those lawsuits are at the very early stages," Klein said.

Howe said Measure 37 proponents like to say that the law is mainly intended to help property owners who only want to put a single home on farm or forest land, yet have been prevented from doing so by land use restrictions.

But 86 percent of the statewide claims seek to subdivide land for housing and other developments, Howe said, with only 13 percent filed in order to establish single dwellings.

Count Ron and Patricia Tendick of rural Creswell among the 13 percent. The county approved their claim last year.

The couple wants to partition 30 acres of their 53-acre forest-zoned parcel for a home site for their son, Perry.

Ron Tendick said the Supreme Court's decision was welcome news.

"I assume that the state will start accepting applications," he said. "Now I will fill out the papers."

CAPTION(S):

Kenny and Marta Gee walk their property near Creswell. The Gees were the first landowners in Lane County to file a Measure 37 claim and are pleased that the Oregon Supreme Court has declared it constitutional. Chris Pietsch / The Register-Guard