Bruner v. Josephine County
2010 Ore. App. LEXIS 1685
Or. Ct. App.2010Background
- Plaintiffs own 40 acres, purchased in 1984, zoned for residential uses (one-acre lots) prior to downzoning to agricultural zoning requiring 80-acre minimums.
- Plaintiffs obtained a Measure 37 waiver from the county allowing development inconsistent with later zoning; they began planning a PUD consistent with 1984 zoning.
- Measure 49, adopted in 2007, repealed/modified Measure 37 and reduced development rights; it became effective December 6, 2007.
- After Measure 49, the county refused to issue permits based on the Measure 37 waiver, and plaintiffs sued for breach of contract, equitable estoppel, taking, and mandamus.
- Trial court dismissed for failure to state cognizable claims; court also held state may be necessary party for constitutional challenges; issues framed in context of Measure 37’s desiccation by Measure 49.
- This appeal follows from Friends of Yamhill County and related authorities recognizing that Measure 49 undermines Measure 37 waivers, with remaining questions about regulatory takings under the Fifth Amendment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Measure 49 repeal destroy Measure 37 rights and moot breach claims? | Bruners contend Measure 37 waiver created contractual/vested rights; Measure 49’s repeal breaches those rights. | County argues no contract exists and repeal moots claims; judicial system not implicated. | Yes, waiver rights are moot post-Measure 49; contract-based breach claims fail. |
| Did Measure 49 constitute a Fifth Amendment taking? | Fifth Amendment requires compensation for the loss of the waiver’s value and property rights. | Regulatory change does not deprive plaintiffs of all economically viable use; no per se taking. | No taking under Lucas or Penn Central; regulatory action not a compensable taking. |
| Did Measure 49’s effect on the waiver impair judicial functioning or contractual obligations under state/federal law? | Impairment of contractual obligations and judicial functioning if waivers enforceable. | Treats as moot; no enforceable contractual right; no impairment under federal or Oregon constitutions. | Claims for impairment and mandamus are not viable; affirmed dismissal. |
Key Cases Cited
- Corey v. DLCD, 344 Or. 457 (Or. 2008) (describes Measure 49 effect on Measure 37 waivers and vested rights)
- Friends of Yamhill County v. Board of Commissioners, 237 Or. App. 149 (Or. App. 2010) (discusses Measure 49/Measure 37 relationship and vested rights factors)
- Smejkal v. DAS, 239 Or.App. 553 (Or. App. 2010) (holds waivers do not create enforceable contracts; repeal does not unduly burden judiciary)
- Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (U.S. 1992) (per se taking framework for total deprivation of property)
- Penn Central Transp. Co. v. New York City, 438 U.S. 104 (U.S. 1978) (balancing test for regulatory takings)
- Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (U.S. 2002) (use parcel as a whole in regulatory takings analysis)
- Coast Range Conifers v. Board of Forestry, 339 Or. 136 (Or. 2005) (uses of parcel as a whole for evaluating regulatory impact)
- Clackamas Co. v. Holmes, 265 Or. 193 (Or. 1973) (vested rights concept in development)