248 P.3d 1
Or. Ct. App.2011Background
- Plaintiffs own ~116 acres in Clackamas County; they purchased 1960–1972.
- Under Measure 37, they obtained waivers of certain land-use regulations affecting their property.
- Measure 49 was enacted in 2007, becoming effective December 6, 2007, after plaintiffs sued for compensation.
- Plaintiffs sought monetary compensation and a declaration that waivers could transfer to a subsequent owner.
- Defendants moved to dismiss as moot, arguing Measure 49 superseded Measure 37 claims.
- Trial court dismissed; Court of Appeals addresses retroactivity, vested rights, and constitutional challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Retroactivity of Measure 49 to Measure 37 claims | Measure 49 should not be applied to moot Measure 37 actions. | Measure 49 retroactively supersedes ongoing Measure 37 claims. | Retroactive application valid; does not violate due process or takings. |
| Vested rights under Measure 37 waivers or pursuit of relief | Waivers/measure 37 rights constitute vested rights protected by constitution. | Waivers are non-enforceable zoning permits; no vested rights. | No vested right to develop; waivers not equivalent to judgments; expenditures insufficient for vesting. |
| Equal protection and equal privileges under Measure 49 | Measure 49 deprives plaintiffs of protections due to inadequate waivers. | Classification rationally furthers legitimate state interests; no improper class. | Plaintiffs' equal protection/equal privileges claims rejected. |
| First Amendment/ unconstitutional conditions | Conditioning entitlement to relief on giving up rights violates First Amendment. | No constitutional right coerced or conditioned; no retaliation. | Claims rejected; no unconstitutional conditions established. |
Key Cases Cited
- Luethe v. Multnomah County, 240 Or. App. 263 (2010) (retroactive Measure 49 application to Measure 37 not a due process violation)
- Bleeg v. Metro, 229 Or. App. 210 (2009) (Measure 49 superseded ongoing Measure 37 claims; nonjusticiable)
- Coast Range Conifers v. Board of Forestry, 339 Or. 136 (2005) (regulatory takings analysis; economy of use matters)
- DeMendoza v. Huffman, 334 Or. 425 (2002) (vested rights require title to present or future enjoyment; more than expectation)
- Holmes v. Clackamas County, 265 Or. 193 (1973) (necessity of substantial construction or substantial costs for vesting)
- Bruner v. Josephine County, 240 Or. App. 276 (2010) (Measure 49 effects on waivers and vesting; peripherally cited in analysis)
- Friends of Yamhill County v. Bd. of Comm'rs, 237 Or. App. 149 (2010) (guidance on vesting standards under Holmes doctrine)