In this сonsolidated appeal, we determine whether the State of Oregon and Jackson County (collectively Oregon) committed a constitutional taking, violated Plaintiffs’ due process rights, or violated Plaintiffs’ equal protection rights when Oregon voters enacted Measure 49 to replace and modify remedies available under the previous Measure 37. We conclude that Oregon did not commit a constitutional taking when it modified the remedies available under Measure 37, because any potential property interest that Plaintiffs had for compensation or a specific type of land use under Measure 37 had not vested. Measure 49 also does not contravene substantive due process, because it does not implicate fundamental rights. For this reason, and also because the regulatory classification under Measure 49 is not based on a suspect class, Measure 49 also survives rational basis scrutiny and has not violated Plaintiffs’ equal protection rights. Therefore, we AFFIRM the district court.
FACTS
1. Measure 37
In 2004, Oregon voters passed Measure 37, originally codified at Or.Rev.Stat. § 197.352 (2005), through the initiative process. Measure 37 required “state and local governmеnts to compensate private property owners for the reduction in the fair market value of their real property that results from any land use regulations of those governmental entities that restrict the use of the subject properties.”
MacPherson v. Dep’t of Admin. Servs.,
Thousands of such claims were filed statewide, with Jackson County alone validating approximately 571 such claims. Most property owners in Oregon, who pursued a remedy under Measure 37, received Measure 37 waivers from their local governments, not monеtary compensation. A Measure 37 waiver provided that the regulations at issue in the property owners’ claims would not be applied to their property.
2. Measure 49
During the 2007 legislative session, the state legislature referred Measure 49 to the voters. This measure also passed and has been codified as the current Or.Rev. Stat. §§ 195.300 to 195.336 (2007). The Oregon Supreme Court examined the text and context of Measure 49 and found that it “conveys a clear intent to extinguish and replace the benefits and procedures that Measure 37 granted to landowners.”
Corey v. Dep’t of Land Conservation & Dev.,
Of greatest importance to this case, Measure 49 undertook to change the remedies available to property owners who had already begun the process of pursuing relief under Measure 37. Measure 49 replaced the process, the approval standards, and the extent of the relief (if any). Measure 49 also removed somе of the benefits previously available, including monetary relief and waivers allowing commercial or industrial development. §§ 195.305, 195.310. Measure 49, however, exempted a property owner from pursuing compensation pursuant to the new provisions in Measure 49 if the property owner had “a common law vested right ... to complete and continue the use described in the waiver.”
Compiled as a note after
§ 195.305. Measure 49 does not mandate any particular process for establishing vested rights. Claimants seeking a vested rights determi
According to Oregon, whether a landowner has a vested right to complete development of property (even though the law has changed) turns on whether the landowner’s “commencement of the construction ... [has] been substantial, or substantial costs toward completion of the job ... have been incurred.”
Clackamas Cnty. v. Holmes,
3. Plaintiffs’ Claims
All of the Citizens for Constitutional Fairness et al. Plaintiffs and the Bowers et al. Plaintiffs (collectively Plaintiffs) 2 are owners of real property in the State of Oregon, who submitted written demands for compensation under Measure 37 and received timely waivers. None of these individual plaintiffs have recovered any monetary compensation, and, because of Measure 49, none have been able to proceed with any development of their land under the waivers granted.
PROCEDURAL HISTORY
1. Citizens Case
Citizens Plaintiffs initially brought this action against Jackson County in relation to Measure 49, which amended prior Ballot Measure 37 and replaced the relief previously available to Citizens under that statute. Citizens Plaintiffs’ complaint raised several causes of action, two of which are relevant to this appeal. In their fifth cause of action, Citizens Plaintiffs asserted that waivers granted to them by the County under Measure 37 constituted binding contracts, protected by the Contracts Clause of the United States Constitution. Citizens Plaintiffs’ sixth cause of action asserted that, pursuant to Measure 37, they had gained an accrued cause of action for monetary compensation, which was a property interest protected by the Fifth and Fourteenth Amendments to the United States Constitution.
On summary judgment, the district court held that the Measure 37 waivers were contracts that could nоt be impaired pursuant to the Contracts Clause and, in the alternative, they were judgments that could not be impaired under the doctrine of the separation of powers. The County appealed, and we reversed, ruling that Measure 37 waivers are neither contracts nor court judgments implicating separation of powers issues.
Citizens for Constitutional Fairness v. Jackson Cnty.,
2. Bowers Case
Before any decision was rendered on the first Citizens appeal, different claimants brought another suit in the district court in the Bowers case. The Bowers Plaintiffs are all Measure 37 claimants. They sued the Department of Conservation and Development Commission and Director Whitman, seeking damages and declaratory relief against enforcement of Measure 49. Bowers Plaintiffs alleged five causes of
First, Bowers Plaintiffs alleged that there had been a “taking” of protected property in violation of the Fifth Amendment due process clause. Bowers Plaintiffs asserted that those property interests were “statutory rights to monetary compensation,” “vested and accrued claim[s] for compensation,” “legal entitlements ... in lieu” of monetary compensation, or “Measure 37 waivers and the entitlement to monetary compensation.” Second, Bowers Plaintiffs alleged that Measure 49 violates equal protection guarantees under the Fourteenth Amendment. Third, Bowers Plaintiffs alleged that Measure 49 violates substantive due process under the 14th Amendment.
After Bowers was filed, this court issued its opinion in the first Citizens appeal, holding that the Measure 37 waivers were not court judgmеnts or contracts. Relying on our decision, the district court granted the motion for summary judgment in the Bowers case and dismissed the remaining claims against Whitman in an order and judgment. The Bowers appeal followed.
ANALYSIS
In these cases, the Plaintiffs do not identify any disputed facts below in their briefs. Accordingly, these cases appeal only the district court’s conclusions of law, which we review
de novo. DirecTV, Inc. v. Webb,
A. The enactment of Measure 49 did not effect a constitutional taking of Plaintiffs’ potential property interests created under Measure 37.
“We use a two-step analysis to determine whether a [cоnstitutional] ‘taking’ has occurred: first, we determine whether the subject matter is ‘property’ within the meaning of the Fifth Amendment and, second, we establish whether there has been a taking of that property, for which compensation is due.”
Engquist v. Or. Dep’t of Agric.,
“Property interests ... are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”
Bd. of Regents v. Roth,
In some cases, the Supreme Court has recognized property rights that were constitutionally protected, such that they were safeguarded by due process, but still not vested, and thus the government could take away these interests so long as it provided proper procedures.
See, e.g., Perry v. Sindermann,
In the present case, we assume without deciding that the procedurе provided through the ballot initiative was sufficient to satisfy any procedural due process requirements, because this issue is not contested by the Plaintiffs. 3 Thus, the critical issue is whether Plaintiffs’ Measure 37 property interests have vested such that Oregon could not remove or modify the right without committing a constitutional taking. 4 After review, we conclude that such property interests have not vested.
To determine whether a property interest has vested for Takings Clause purposes, “the relevant inquiry is the certainty of one’s expectation in the property interest at issue.”
Engquist,
At the outset, we emphasize that Plaintiffs failed to articulate any clear characterization of the exact property interest to which they are entitled. Their descriptions range from an accrued cause of action to a right to monetary compensation derived from a statutory entitlement to the right to use their land consistent with Oregon’s decision to not regulate their property under Measure 37. When pressed at oral argument on whether a ruling in the Plaintiffs’ favor would have entitled them to money or to land use rights, the Plaintiffs were unable to provide a clear answer and argued essentially for both. The Plaintiffs’ inability to characterize their requested relief reflects the uncertainty of
1. Accrued Cause of Action
Plaintiffs, at some junctures, have maintained that their Measure 37 property interest is an accrued cause of action that has been unconstitutionally taken from them by Measure 49. “We have squarely held that although a cause of action is a species of property, a party’s property right in any cause of action does not vest until a final unreviewable judgment is obtained.”
Ileto v. Glock, Inc.,
As we held in the previous interlocutory appeal in the
Citizens
case, the waivers provided under Measure 37 “were administrative decisions, not court judgments.”
Citizens for Constitutional Fairness v. Jackson Cnty.,
The waivers stated that particular land use regulations would not be applied, but this statement did not entitle waiver recipients tо develop their property in any particular way. Any development required approval from the requisite governmental bodies as well as, in many, if not all, cases, a waiver from the state of Oregon. Indeed, all of the waivers in the record state that “Jackson County does not promise Claimant(s) that Claimant(s) will eventually be able to put the property to any particular use.” 5
Further, the waivers were not self-enforcing. They did not, for example, specify a particular amount of compensation to be paid if a municipality continued to apply a waivеd land use regulation. Instead, in such a circumstance, a property owner’s only recourse was “a cause of action” in Oregon state court. Thus, Plaintiffs here had, at most, a cause of action, not a final judgment. Their right to sue was therefore not a property interest protected by the Takings Clause.
2. Statutory Entitlement
Plaintiffs have also characterized their property right as a vested statutory enti
The Supreme Court has required a high threshold of certainty before finding that an entitlement had vested. For instance, the Court has recognized this certainty where the plaintiffs had paid consideration for their entitlement,
Lynch,
Plaintiffs’ claim of entitlement does not contain the necessary certainty of expectation for multiple reasons. First, in the present case, Mеasure 37 waivers clearly did not constitute an express and unequivocal promise by Oregon to provide compensation, because Oregon had the option of providing either compensation
or
removing certain land use regulations. Thus, no monetary commitment was unequivocally made. Furthermore, as noted, the waivers themselves explicitly disclaimed a claimant’s right to any particular land use. Thus, Oregon’s option of waiving the application of specific land use regulations was also not an unequivocal grant of an unfettered right. Finally, as we held in the previous interlocutory appeal, Measure 37 waivers were not contracts, nor were they evidence of a contract between the property owners and the county.
See Citizens for Constitutional Fairness v. Jackson Cnty.,
Plaintiffs’ claims for compensation under statutory entitlement are more akin to social security benefits: something that the government voluntarily and benevolently provides, but that the government can stop providing at any time (assuming the government has complied with thе requisite procedural due process).
See, e.g., Hisquierdo,
3. Right to a Particular Land Use
To the extent that the property interest provided under Measure 37 was merely a right to particular land uses, it is analogous to a zoning permit. It is well established that there is “no federal Constitutional right to be free from changes in the land use laws.”
Lakeview Dev. Corp. v. City of S. Lake Tahoe,
Plaintiffs’ claims to a land use property right under Measure 37 fail for two reasons. First, these claims are not ripe.
See Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank,
Similarly in the present case, the Plaintiffs have not exhausted the available alternative remedies under Measure 49 to determine which land use options are currently available to them. Measure 49 claims to preserve any Measure 37 land use claims if the property owner has “a common law vested right ... to complete and continue the use described in the waiver.”
Compiled as a note after
§ 195.305. Plaintiffs also have not sought to determine whether their right to develop their land pursuant to their Measure 37 waivers have vested in equity pursuant to Oregon’s
Holmes
factors.
Holmes,
Second, even if Plaintiffs’ claims were ripe, Plaintiffs have not alleged that they detrimentally relied on their Measure -37 land-use' waivers. As a result, it is unlikely that Plaintiffs’ claims have vested under this theory.
B. The enactment of Measure 49 did not violate substantive due process.
Plaintiffs argue that Measure 49 infringes on fundamental rights, thus triggering heightened scrutiny under our substantive due process jurisprudence. Oregon answers that there is no authority for the proposition that economic rights are fundamental; therefore this claim ought to be subjected to rational basis scrutiny.
See Washington v. Glucksberg,
Retroactive legislation does not violate substantive due process, “[provided that the retroactive application of a statute is supported by a legitimate legislative purpose furthered by rational means.... ”
Measure 49’s purpose is to “modify ... Measure 37 (2004) to ensure that Oregon law provides just compеnsation for unfair burdens while retaining Oregon’s protections for farm and forest uses and the state’s water resources.” Or.Rev.Stat. § 195.301(2). Based on the high number of claims that had been filed during the three years Measure 37 was in effect, it was rational for the legislature and voters to determine that the cost of Measure 37 was too great, either to the taxpayer or in terms of natural resources. Furthermore, Measure 49 still seeks to provide alternative remedies to Measure 37 claimants. Thus, Measure 49 is based on a rational government interest and does not violate substantive due proсess.
C. The enactment of Measure 49 did not create unconstitutional disparate treatment.
Bowers Plaintiffs
7
argue that Measure 49 imposes unequal results that lack any rational relationship to its purpose, and it therefore violates the Equal Protection Clause under the Fourteenth Amendment. Because the regulatory classification under Measure 49 is not based on a suspect class, and because Measure 49 does not implicate fundamental rights (as discussed above), this classification must be evaluated under the “rational basis” standard.
See Nordlinger v. Hahn,
Under rational basis review, the Equal Protection Clause' is satisfied if: (1) “there is a plausible policy reason for the classification,” (2) “the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker,” and (3) “the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.”
Id.
at 11,
Measure 49 seeks to balance the protection of property owners’ interests with the preservation of Oregon’s nаtural resources. These both constitute legitimate state interests. Measure 49 changes the calculus of the balance that was previously utilized under Measure 37, but this change was not irrational, “[g]iven the number of Measure 37 claims that were being processed, and the potential costs of those pending claims.... ”
Powell v. Or. Dep’t Land Cons. & Dev.,
Plaintiffs argue that Measure 49 was irrational, because it applied blanket stan
However, the Supreme Court has alsо said, “[i]n the area of economic and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by the law are imperfect.”
Dandridge v. Williams,
In this case, it was not irrational for Oregon to attempt to provide partial remedies under Measure 49, even if these remedies did result in some differences оf treatment. The legislature had discretion to determine how best to balance the competing needs of providing some remedies for claimants while still protecting Oregon’s resources. Furthermore, there was a rational reason that some claimants received a remedy while others did not. The claims that led to a remedy became final before Measure 49 was passed, and so the Oregon Supreme Court held that such a claim was “extinguished” once it was “reduced to a final judgment.”
English,
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Notes
. We will continue to refer to this option for the government as a "waiver,” because that is how the state of Oregon characterizes it. Although the text of Measure 37 does not refer to waivers, Measure 49 defines "waiver” as "an action or decision of a public entity to modify, remove or not apply one or more land use regulations ... to allow the owner to use property for a use permitted when the owner acquired the property.” Or.Rev.Stat. § 195.300(24) (2007). We note that the term "waiver” typically has legal significance not applicable here.
. Plaintiffs will be referred to separately as Citizens Plaintiffs and Bowers Plaintiffs only when necessary.
. Though Bowers Plaintiffs appear to assert a procedural due process claim on appeal, they renounced any procedural due process claim in their opposition to Whitman’s motion to dismiss. Even if Plaintiffs had not abandoned this claim, the process provided in this case was sufficient because "[w]hen a state alters a state-conferred property right through a legislative process, the legislative determination provides all the process that is due.”
Rea v. Matteucci,
. We are aware that some of the Oregon state courts' decisions indicate that Measure 37 waivers constitute protected property interests.
See Corey v. Dep’t of Land Conservation & Dev.,
. The Plaintiffs noted in oral argument that the text of Measure 37 waivers varied from county to county. However, no other waivers appear in the record, and at оral argument the Plaintiffs suggested that Jackson County’s waivers were representative of the other waivers.
. Under
Holmes,
Plaintiffs’ Measure 37 property interest in a certain type of land use can vest if the particular Plaintiff has commenced construction that is substantial or has spent substantial costs toward completing the job.
. The Citizens Plaintiffs raised this argument for the first time on appeal. Generally, we will not consider an issue raised for the first time on appeal.
Greger v. Barnhart,