Bruner v. Josephine County
240 Or. App. 276
Or. Ct. App.2010Background
- Plaintiffs own 40 acres; originally zoned residential with 1-acre lots, later downzoned to agricultural with 80-acre minimums.
- Plaintiffs obtained a Measure 37 waiver allowing development consistent with 1984 zoning; county delayed approvals pending waiver fulfillment.
- Measure 49 repealed Measure 37, limiting development and altering compensation; Measure 49 became effective December 6, 2007.
- Plaintiffs sued for equitable estoppel, breach of contract, unconstitutional taking, and mandamus; trial court dismissed for failure to state cognizable claims.
- Court references Corey v. DLCD and Smejkal to frame that Measure 49 undermines Measure 37 but raises no contract or takings claims except potentially a regulatory taking.
- Court ultimately affirms dismissal, holding no breach of contract, no contract impairment, no mandamus duty, and no regulatory taking under Fifth Amendment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Measure 49 moot or impair Measure 37 waivers? | Wiper/Measure 37 rights survive as vested rights. | Measure 49 repeals Measure 37 waivers; no continuing viability. | Claims dismissed; Measure 49 mootifies waivers. |
| Does the Measure 37 waiver constitute a contract that can be breached? | Waiver created contractual rights enforceable against the county. | Waiver does not create contract rights enforceable after repeal. | No contract claim; Smejkal controls. |
| Did Measure 49 cause a regulatory taking of property under the Fifth Amendment? | Loss of waiver value constitutes taking. | Regulation does not deprive all viable uses; no per se or Penn Central taking shown. | No regulatory taking. |
| Was mandamus appropriate to compel development under pre-Measure 49 zoning? | County has a duty to permit development under prior zoning. | No mandatory duty; broad repeal unconstitutionally interferes with zoning. | Mandamus claims dismissed. |
Key Cases Cited
- Corey v. DLCD, 344 Or. 457 (2008) (explains Measure 49 substantively bars Measure 37 waivers except vested rights via common law doctrine)
- Smejkal v. DAS, 239 Or.App. 553 (2010) (waiver does not create contractual obligation; repeal does not unduly burden judiciary)
- Friends of Yamhill County v. Bd. of Commissioners, 237 Or.App. 149 (2010) (vested rights analysis under Measure 49)
- Wiper Inc. v. City of Eugene, 235 Or.App. 382 (2010) (dismissal of mootness and related Measure 49 impacts)
- Bleeg v. Metro, 229 Or.App. 210 (2009) (dismissal in light of Measure 49)
- Olson v. DLCD, 220 Or.App. 77 (2008) (similar considerations on Measure 49 effects)
- Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002) (parcel-as-a-whole approach to regulatory takings)
- Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (per se takings framework for total loss of economically viable use)