246 P.3d 487
Or. Ct. App.2010Background
- Plaintiffs own about 19 acres in Multnomah County purchased in 1973; they sought compensation under Measure 37 for value loss due to land use regulations in 2005.
- They submitted a written demand for compensation and obtained a partial state waiver of some regulations; the county deemed the claim incomplete.
- In September 2006, plaintiffs filed suit seeking monetary compensation and sought a declaration that waivers would transfer to successors.
- Trial occurred November 5, 2007, the day before Measure 49 was adopted; November 14, 2007 the court orally found reductions in value and that defendants could elect to pay the amount.
- Measure 49 became effective December 6, 2007, altering remedies for Measure 37 claims and limiting monetary compensation for certain claims filed by June 28, 2007.
- Defendants moved to dismiss as moot under ORCP 21 A; plaintiffs sought nunc pro tunc judgment based on the earlier ruling; the court dismissed and the appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Measure 49 retroactively abolishes a Measure 37 cause of action, violating due process or takings rights | Luethes contend vested right protected by Fifth/Fourteenth Amendments. | Measure 49 validly supersedes Measure 37 remedies and applies retroactively. | No constitutional violation; retroactive application permitted. |
| Whether plaintiffs had a vested right to Measure 37 relief under Fisk and related authorities | Fisk creates property-like vested rights protecting Measure 37 claims. | Fisk is narrow; does not preserve Measure 37 remedies post-Measure 49. | Fisk inapposite; no vested-right protection under current law. |
| Whether retroactive application of Measure 49 violates due process under Lochner-era substantive due process concerns | Retrospective relief harms economic rights protected by due process. | Modern due process scrutiny; rational basis supports Measure 49. | Measure 49 passes rational basis review. |
| Whether retroactive Measure 49 violates the Takings Clause by destroying a merited claim | Measure 49 deprives property interest by retroactively altering remedy. | No protected property interest; remedies were not contractual entitlements. | Takings claim rejected; no cognizable property interest identified. |
| Whether the trial court should have entered judgment nunc pro tunc in plaintiffs’ favor | Oral ruling on 11/14/2007 constituted a judgment; nunc pro tunc should apply. | No judgment existed before Measure 49; mootness bars relief. | No judgment nunc pro tunc; claims moot under Measure 49; affirmed dismissal. |
Key Cases Cited
- Fisk v. Leith, 137 Or. 459, 299 P. 1013 (Or. 1931) (statutory remedies may not preclude due process protection; vested rights analysis limited to specific context)
- Hall v. Northwest Outward Bound School, 280 Or. 655, 572 P.2d 1007 (Or. 1977) (Fisk narrow; damages may be limited after repeal without depriving causes of action)
- Powell v. DLCD, 238 Or.App. 678, 243 P.3d 798 (Or. App. 2010) (retroactive application of Measure 49 constitutional under due process)
- Bleeg v. Metro, 229 Or.App. 210, 211 P.3d 302 (Or. App. 2009) (Measure 49 supersedes Measure 37 claims; judgments lose viability)
- Norwood v. Washington County, 239 Or.App. 542, 245 P.3d 659 (Or. App. 2010) (Measure 49 applicability to all Measure 37 claims; affects viability)
- Corey v. DLCD, 344 Or. 457, 184 P.3d 1109 (Or. 2008) (Measure 49 provisions interpreted; legislative text control)
- English v. Multnomah County, State ex rel English v. Multnomah County, 348 Or. 417, 238 P.3d 980 (Or. 2010) (extinguishment/merger doctrine when judgment final; Measure 49 impact)
- DeMendoza v. Huffman, 334 Or. 425, 51 P.3d 1232 (Or. 2002) (remedy clause interpretation in Oregon constitutional context)