Oregon Supreme Court: we ain't buyin' yer right-wing theories
Russell Sadler
Supporters of Measure 37, which requires compensation for any government land use regulation that diminishes the value of property, have been trying to introduce a radical concept into Oregon that overturns decades of settled law on what constitutes the “taking” of private property for private use.
The Oregon Supreme Court just delivered a stinging rebuke to the “legal theory” the radicals and their lawyers are peddling. In the case of Coast Range Conifers v. the Board of Forestry, the Oregon Supreme Court unanimously delivered the message, “Oregon ain’t goin’ there.”
The facts are not in dispute.
In the Spring of 1998, a logging company named Coast Range Conifers acquired 40 acres of timber known as the Beaver Tract. Subsequently, a U.S. Fish and Wildlife Service employee observed two bald eagles in the area and a nest on a 31-acre site the company wanted to log. The bald eagle is listed as a “threatened species” under the Endangered Species Act. Coast Range Conifers offered a logging plan that prohibited logging within 400 feet of the nest, leaving 50 percent of the neighboring trees, and received a logging permit from the Oregon Department of Forestry. The company logged the 31 acres.
Following the bald eagle nesting season, the company observed the nest was no longer occupied and offered a revised logging plan for the remaining nine acres of the Beaver Tract with larger buffer strips around the nest. The State Forester denied the permit. Coast Range Conifers filed suit complaining the government had taken their property by regulation and demanding compensation.
Lincoln County Circuit Judge Robert J. Huckleberry denied the claim, ruling the regulation did not take private property. The company made its money on the 31 acres it logged.
The Oregon Court of Appeals effectively reversed Huckleberry, ruling the regulation deprived Coast Range Conifers of its property on the remaining nine acres of the Beaver Tract by prohibiting further logging
In a unanimous decision, the Oregon Supreme Court reversed the judicial adventurism of the Court of Appeals and held the Department of Forestry’s regulation denying further logging did not required further compensation.
The Oregon Supreme Court relied on long-established, well-settled legal principles. It was the plaintiffs and their lawyers who sought young judicial activists eager to overturn settled legal traditions.
For decades, Oregon courts have held that government “takes” private property if it takes title to private property, grants public access to private property or deprives the owner of “substantial beneficial use” of their property.
It is this last phrase that creates this dispute.
There are decades of case law that define the phrase “substantial beneficial use” and the cases include the value of all the property involved in the dispute -- not just part of it.
The supporters of Measure 37, some of whom helped pay the bills for Coast Range Conifer’s lawsuit, are enthralled by a radical legal theory popularized by right-wing law professors like Richard Epstein of the University of Chicago and some of his judicial and academic sycophants in the Federalist Society. They argue the “taking clause” in the federal constitution is meant to require compensation for any regulations that “interfere” with the profits of an individual or corporation, including regulations that promote health and safety of individuals. Under this theory, even minimum wage laws could require compensation for lost profits -- real or imagined.
The Oregon Supreme Court served unambiguous notice that it ain’t buyin’.
The unanimous opinion held that any decision about whether Coast Range Conifers was deprived of the value of its land must be based on the economics of the entire 40-acre parcel, of which the company logged 31 acres, and not the nine remaining acres where logging was prohibited because of the bald eagle and its status under the Endangered Species Act.
The Oregon Supreme Court’s opinion also raised an issue systematically ignored by the right wing’s economic determinists. This is the long-settled issue that wildlife belonging to the state -- in this case the bald eagle -- must be held in trust for the public.
The Court’s unanimous opinion held the state has a right to protect its property rights in the eagle, without “incurring liability under the takings clause by restricting private activity that would kill or injure the eagles and trespass on the public rights.” That’s not what developers and the timber industry want to hear.
In its own quiet, dignified way, the Oregon Supreme Court has weighed in on debate over Measure 37 and its radical change in what triggers constitutionally required compensation for the routine regulation of private property in the public interest. Lawyers will appreciate the significance of this exchange of opinions between the Oregon Court of Appeals and the Oregon Supreme Court. The question is whether taxpayers will appreciate how the court is protecting their wallets.
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Aug 21, '05
Good post... HOWEVER, the OSC did specifically mention that they are not ruling on M37 in this case... the fact that they made this note is significant, and possibly somewhat disheartening. Clearly M37 is unconstitutional, but probably for different reasons than in this case. Let's hope that the hearing next month in Marion County sets things in motion for M37's demise. That said, of course, if M37 is vanquished by the courts, we must prepare for more onslaughts from OIA... both M7 and M37 passed with wide margins. What can be done to properly educate the public so as to head these nutjobs off at the pass?
Aug 21, '05
What can be done (aside from challenging any ballot title if there is a new measure) is to understand what Measure 37 says and what it doesn't say. The OIA folks don't want to answer questions like "Just where is transferability in Measure 37? I couldn't find it in the text".
Any evidence that the sponsors were trying to pull a fast one and put something into 1037 which wasn't in the ballot measure should be given the disinfectant of sunlight.
How do citizen groups fighting new Walmart or other big box stores fit into all of this?
Find people who are experts in real estate law and have them explain this in layman's terms. Learn from those who were active what exactly went on with the various versions of SB 1037 and why the D version was being pushed so late in the session when there wasn't enough time to study it. Not to mention the effect on neighbors, and about "givings"--what if government action raises the value of land (new road, etc)shouldn't developers be charged?
Differentiate between the little old people who want to build one house on property they have owned for 50 years and developers who want to speculate on property. Why is development always a better use than farming? Steve Bucknum and others have more expertise than I do, but it seems that "define them before they define you" might be relevant in this case.
Aug 21, '05
Posted by: LT | Aug 21, 2005 4:41:06 PM: The OIA folks don't want to answer questions like "Just where is transferability in Measure 37? I couldn't find it in the text".
JK: It is so obvious that you (and many others) missed it: M37 requires payment OR removal of the regulation. If you had transferably before the regulation was applied, then removing the regulation WILL restore transferability. If transferability is NOT restored, then they have NOT removed the regulation.
Or, you could look at it this way: You buy a brand new Lexus (or Beemer). A year later the factory informs you that you cannot sell it on the used market due to some obscure legal theory (see software licenses for ideas). Do they owe you? Why should it be different when the gov’t does the deed instead of the factory?
Posted by: LT | Aug 21, 2005 4:41:06 PM: Differentiate between the little old people who want to build one house on property they have owned for 50 years
JK: Of course, the gov’t had several chances to to this for Dorothy English, including (if I recall right) a Gov K#1 veto. The babes of Hawthorn also refused to make right. If either of those had shown some human decency towards Dorothy, M37 might have lost it’s most appealing poster child.
Posted by: LT | Aug 21, 2005 4:41:06 PM: Why is development always a better use than farming?
JK: How’bout this: 1.We pay farmers to NOT grow things, but we can collect taxes from the new home owners. 2.Most home owners spread less pesticides that most farmers. 3.Most other uses would produce more tax revenue and higher economic value to society. Remember something like 96-98% of Oregon is still undeveloped.
Thanks JK
Aug 21, '05
JK's last word: Most other uses would produce more tax revenue and higher economic value to society. Remember something like 96-98% of Oregon is still undeveloped.
I suppose the Oil Peak, as discussed in today's Oregonian, will be subject to debate as well, but if we are on the downslope of oil production, then growing food locally is going to become a higher value to society than almost anything else. Anyone else read "Collapse" by Jared Diamond?
So, JK, were does this 96-98% undeveloped figure come from? Does it include all the federal land in Oregon?
I'm thinking what ultimately must be done about the OIA and Measure 37, et al, is to get a reaffirmation of Senate Bill 100 (from 1973) approved as a constitutional amendment, via the initiative process. Obviously, some good legal minds should craft an amendment that would thwart all the attempts by the OIA to destroy land use planning in Oregon. And very possibly, the argument that could hook a lot of undecided people is "food security," which is big in British Columbia.
Aug 21, '05
"Obviously, some good legal minds should craft an amendment that would thwart all the attempts by the OIA to destroy land use planning in Oregon."
Why would Oregonians support that. Our land use planning is destroying out State. The M37 made it clear that although people may support planning of sorts they know our planning to be a total failure. It couldn't be any worse in evey regard.
The campaing against M37 went wild trying to pusuade peope that it's good. Now the pretense continues with more lies and distortions as if people don't witness the damage every day.
Get over yourselves with this phoney planning fraud.
You can't even convince enough of your own kind.
Aug 22, '05
I suggest people who oppose Measure 37 and the whole property rights movement ought to take a good look at what the planning community is really trying to accomplish. Read the American Planning Association's "Growing Smart Legislative Guidebook." Civil libertarians will choke when they see just how far these radicals want to go. It's ridiculously intrusive. This entire land use debate has degraded into a struggle between uber-control and no-control.
The only solution here is to ignore the radicals on both sides so the voices of reason can work together to honestly protect our natural resources while honestly doing everything they can not to screw over the little guy whose financial security is often at stake. I'm so sick of control freaks on the left and greedy people on the right determining what our land use planning will look like. No wonder it's so messed up. Normal people could solve these problems just fine if the slime would get out of the way.
2:43 p.m.
Aug 22, '05
Jim Karlock says M37 requires compensation or "the removal of the regulation." That's not the case at all; it provides for waiver as the first option:
(8) Notwithstanding any other state statute or the availability of funds under subsection (10) of this act, in lieu of payment of just compensation under this act, the governing body responsible for enacting the land use regulation may modify, remove, or not to apply the land use regulation or land use regulations to allow the owner to use the property for a use permitted at the time the owner acquired the property. [emph me]
Furthermore, section (E) of the exemptions reads this way: (E) Enacted prior to the date of acquisition of the property by the owner or a family member of the owner who owned the subject property prior to acquisition or inheritance by the owner, whichever occurred first.
The claimant has to be related to the owner in order to gain relief from a regulation enacted before the claimant owned the property, is the way I read that.
what planet: how is it "destroying our State?" What crucial harm have we all shouldered to have exclusively public beaches? What part of Portland's strong municipal growth since enactment of the UGB has been destroyed by the UGB? In short, what specifically has been a disaster for the state?
Aug 22, '05
torrid aksed "how is it "destroying our State?" Where have you been? It's stiffling our economy and job base, casuing shortages of government revenue, causing shortages of land for industry and homes, layering on excessive costs of developing, crippling our transportation sytemes and needlessly overcrowding all of our major cities.
"What crucial harm have we all shouldered to have exclusively public beaches?"
Why the leaning on our beach policy? That has nothing to with our retarded land use and transportation planning.
"What part of Portland's strong municipal growth since enactment of the UGB has been destroyed by the UGB?"
What strong municipal growth? The Pearl district? Are you calling the crammed, over crowding of our streets and neighborhoods municipal growth? You must see some things I don't or you don't understand what has been happening or how much it has cost.
"In short, what specifically has been a disaster for the state?"
Highest unemployment in the country, creation of nonsustainable programs and agencies, long term commitment to policies which don't work and don't have funding, diverting of basic services dollars to fund those failed programs, inability to recognize and reverse failure.
Aug 22, '05
what planet... one must ask what planet YOU are coming from? your moronic post demonstrates neither a command of facts nor logic.
Aug 22, '05
JK: And if you don’t allow transferability, you have not waved the entire regulation. So simple, even a city planner can understand it.
“torridjoe”: (8) Notwithstanding any other state statute or the availability of funds under subsection (10) of this act, in lieu of payment of just compensation under this act, the governing body responsible for enacting the land use regulation may modify, remove, or not to apply the land use regulation or land use regulations to allow the owner to use the property for a use permitted at the time the owner acquired the property. [emph me]
JK: Read you own quoted section 8 above: “allow the owner to use the property for a use permitted at the time the owner acquired the property”
Could the owner transfer improvements at the time he bought the property? YES. If he can no longer transfer an improvement, then some regulation has not been removed, not been modified or not not applied.
By the way “torridjoe”, do you have a real name? And do you work for the city or any company involved in city planning, or real estate development?
Thanks JK
8:23 p.m.
Aug 22, '05
No Jim, I don't have a real name. I labor through life with just a pseudonym, sadly. If you like, call me Mr. Joe.
On point--I must say I really am not sure what you're trying to say.
Farmer Bob has 20 acres. His land has been zoned since purchase, for no further development. Bob puts in a claim to build a house that would violate zoning. The options are:
pay Bob remove the rule change the rule WAIVE THE RULE FOR BOB.
Where, from those options, do you find transferability? If he transfers the property, he no longer owns it and thus has no involvement. The new owner did not own it before the regulation in question was applied; thus he cannot make a claim--as exemption E makes clear.
I'm curious as to why you think this is an inviolate feature of M37, yet so much discussion has gone on since passage, referring to the concept of transferrability.
8:25 p.m.
Aug 22, '05
what planet?-- do you have any EVIDENCE that it has caused the things you claim? I fear not.
10:45 p.m.
Aug 22, '05
what planet,
You claim Oregon's land use planning is:
"stiffling our economy and job base, casuing shortages of government revenue, causing shortages of land for industry and homes, layering on excessive costs of developing, crippling our transportation sytemes and needlessly overcrowding all of our major cities."
I don't agree with these opinions. Do you have any objective facts to back up your opinions?
"What strong municipal growth? The Pearl district?"
Yes, as a matter of fact. Also, the Hawthorne area, Alberta, NE Broadway, most of North and Northeast Portland, not to mention Damascus, Beaverton, Hillsboro, Gresham, ... Just about every neighborhood and community in the Metro area has grown and become more prosperous over the past 10 to 20 years or so.
"Are you calling the crammed, over crowding of our streets and neighborhoods municipal growth?"
Yes, growth tends to create greater densities in some areas - although in my opinion I wouldn't say they are crammed and over crowded. But by complaining about it you are effectively acknowledging and agreeing that growth has occured, which you previously were disputing. So which is it, are you arguing that growth hasn't occured, or that there's been too much of it?
"Highest unemployment in the country, creation of nonsustainable programs and agencies, long term commitment to policies which don't work and don't have funding, diverting of basic services dollars to fund those failed programs, inability to recognize and reverse failure."
The only thing you list here that resembles an objective, verifiable fact is Oregon's recent high unemployment rate. Of course we had one of the lowest unemployment rates in the country during the 90's, with the same land use planning laws we have now. I would argue that there is only a very minimal cause and effect relationship between land use planning rules and employment rates, if any.
Aug 23, '05
Regarding density: We'll probably all someday be grateful for density when gas costs $8+ a gallon and we have to turn to alternate forms of transportation. That day WILL come.
Regarding transferability: The ONLY transferability problem I see is if a person is allowed to make a change to the property (such as build a house) that was allowed when he purchased it, but not after the rules were changed, and he then sells his property, does the house he built become a nonconforming use? If it burns, could it be rebuilt? Because if not, then you've just shifted the victimhood from the original owner to a subsequent owner.
Aug 23, '05
The ballot title for Measure 37 was legally accurate, and both legal challenges to it (OIA's and 1000 Friends') were thrown out by the court because copies of those challenges were not received until a day late at the Secretary of State's office (an obscure rule, but one that many lawyers fallen to, inlcuding John DiLorenzo). There's no reason to think that the Supreme Court would have changed the ballot title, as they didn't change another version of Measure 37 challenged on similar grounds.
The Supreme Court (and Attorney General) approach their explanations of ballot measures in legal terms, not in term of what would best help voters understand the measures or their implications.
Aug 23, '05
Wingnutter Karlock says "96-98% of Oregon is still undeveloped"... what an absolute bunch of crap. When he quotes ridiculous lies like this, we know that a) he is a rightwing nutjob and b) that everything else he says is similarly infused with lies.
This statistic is similar to the GOPs argument that ANWR oil drilling will only use 400 acres... yeah, "only" 400 acres of machines, roads, platforms, etc, spiderwebbing out over 10s of thousands of acres.
So when Karlock says Oregon is only developed by 2%, he is doubtlessly only including the actual building footprint, and not backyards, roads, or some other similar hogwash. Because, surely, if he went to Oregon GIS and looked at the area taken up by UGBs he would note that it is far, far more.
What an idiot.
Aug 23, '05
First, just an observation about the core issue here – Eagles. They are common birds up in Alaska, and when I lived there I saw them all the time. I went back to Alaska for a job interview in Juneau in 1985. While there I happened by the town dump, and there on the dump were more Bald Eagles than I could count. When we have an open dump here it gets covered with seagulls – there Eagles do the job.
So just how sensitive is an Eagle? They seemed perfectly fine around people and their garbage in Juneau. Perhaps they aren’t so delicate after all. -- But that wasn’t the “facts” put before the court.
Second, Jim Karlock makes some obscure comments about Measure 37 and transferability, answering LT’s post. I’d like to address that.
One of the rights held in fee simple ownership of real estate is transferability, both to sell or rent. Measure 37 has no direct impact on transferability. However, it does indirectly affect transferability in that all rights do not transfer.
Measure 37 specifically stated that any decision made under it was not in place of a land use decision. Our State Attorney General has ruled that any restored “right” is restored to the person/family that claimed it under Measure 37. In other words, the Measure 37 “right” is a license given to the applicant. Licenses don’t transfer with the sale of a property.
Concrete example, only slightly made up:
Farmer Joe has owned his farm for 30 years, prior to the implementation in his County of State mandated land use laws in 1978. It is family tradition to carve off a 5-acre parcel for the kids to build a home upon. But the land use laws created an Exclusive Farm Use zone that calls for a minimum parcel size of 40 acres. So Farmer Joe uses Measure 37, and is able to create the parcel, and his kid builds a home. Since the kid is a member of the family, Measure 37 continues to apply as long as the family owns the property.
But, Farmer Joe dies of a sudden heart attack, Mrs. Joe goes into the nursing home, and because of NAFTA the farm can’t make any money anymore. So, the Farmer Joe family decides to sell the main farm. Shortly afterwards, Mr. Joe’s kid decides to sell too, because they don’t like the new neighbor. City Slicker Sam buys the kid’s place.
Once he has bought the property for cash, City Slicker Sam goes down to the insurance office to get the house covered. But the insurance agent tells Sam that you can’t insure what you can’t rebuild. The Measure 37 license that was given to Farmer Joe and his extended family ended when they sold the property. So, if the home is destroyed, the land reverts to the zoning requirements, and 5 acres is too small. The minimum lot size is 40 acres. City Slicker Sam tries to buy 35 acres from the neighbor, but the neighbor doesn’t cooperate. So, City Slicker Sam can’t insure his place.
Not wanting to live with the risk, City Slicker Sam goes to sell his place. A buyer shows up, but needs a bank loan to finance 75% of the purchase price. The bank’s appraiser finds out that this is a Measure 37 property, and informs the bank that the house cannot be rebuilt if destroyed. So, the bank will only loan on the land value, and it isn’t enough to cover the loan.
City Slicker Sam is outraged about big government taking away his rights, and starts an initiative campaign to make the governor only serve 6 months before facing re-election.
-- And that’s life in Rural Oregon.
Aug 23, '05
Great comment Steve! And a fitting antidote to Bill Moshofsky's Oregonian guest opinion.
In person, Moshofsky is a great gentleman. But my guess is he hasn't lived in rural Oregon.
The wording of ballot measures / legislation is the responsibility of the authors. And if there is something wrong with the wording that is their responsibility.
One other thing--suppose someone wanted to build a motocross track or something else with lots of noise and traffic next door to the home of Moshofsky or Hunnicut or one of the other OIA folks. Would they complain or say "it is your property, you can do what you want and the neighbors have no say"?
Aug 23, '05
Wingnutter Peter Bray says "96-98% of Oregon is NOT still undeveloped"... what an absolute bunch of crap. When he quotes ridiculous lies like this, we know that a) he is a lefttwing nutjob and b) that everything else he says is similarly infused with lies.
This statistic is similar to the DEMs argument that ANWR oil drilling will use more than 400 acres... yeah, more than "only" 400 acres of machines, roads, platforms, etc, spiderwebbing out over 10s of thousands of acres.
So when Peter Bray says Oregon is NOT “only developed by 2%”, he is doubtlessly including the actual building footprint, and not backyards, roads, or some other similar hogwash. Because, surely, if he went to Oregon GIS and looked at the area taken up by UGBs he would note that it is NOT far, far more.
What an idiot
Aug 23, '05
JK asked: By the way “torridjoe”, do you have a real name? And do you work for the city or any company involved in city planning, or real estate development?
torridjoe replied: No Jim, I don't have a real name. I labor through life with just a pseudonym, sadly. If you like, call me Mr. Joe.
JK: torridjoe neglected to answer “And do you work for the city or any company involved in city planning, or real estate development”
I there fore conclude that torridjoe probably does work for the city or some company involved in city planning, or real estate development. This plus his insistence on hiding his identity suggests that he is just beating the drum for the entrenched special interests that are sucking this city’s budget dry. For this reason, I will ignore him from now on.
Thanks JK
Aug 24, '05
About those comments on how "developed" Oregon is. It all depends upon what you mean by developed.
About half the State is owned by the Federal Government. So, we can start with no more than 50% development.
About 3% is within urban growth boundaries, and while there are places where you can still build in those boundaries (there is supposed to be a 20 year reserve, but some of that is large tracts held by people who don't want to sell) - by in large the urban growth boundaries should be considered "developed" at least in my rural sense of what development means.
So we are down to somewhere between 3% and 50%.
In rural Oregon, about half the people live in towns and cities. The rest of us live outside the bounds - in the country. I hate to admit it, but I consider my 2.5 acres "developed". I have a driveway, house, garage, shed, lawn, and yes about 1.5 acres is a hillside covered with sage brush and Juniper trees, but on balance I think it's developed.
Then, we have the working rural folks. They grow crops or have range cattle. A few hardy souls still have timbered areas. And they live on their land. I wouldn't call managed land "undeveloped".
If development means "available for housing" then maybe we are closer to 3%. If development means worked or managed land that is used or lived upon, then we are closer to the 50%.
I for one can't tie it down any closer until terms are defined.
Aug 24, '05
Steve Bucknum | Aug 24, 2005 9:11:59 PM: About those comments on how "developed" Oregon is. It all depends upon what you mean by developed.
About half the State is owned by the Federal Government. So, we can start with no more than 50% development.
About 3% is within urban growth boundaries, and while there are places where you can still build in those boundaries (there is supposed to be a 20 year reserve, but some of that is large tracts held by people who don't want to sell) - by in large the urban growth boundaries should be considered "developed" at least in my rural sense of what development means.
So we are down to somewhere between 3% and 50%. <snip> I for one can't tie it down any closer until terms are defined.
JK: I can do that.
This discussion is about urban development, urban growth boundaries and land use controls, none of which stop farming or timbering. So, for the purposes of this discussion, anything that is not developed by “developers” is “undeveloped” ie: “Developed“is limited to housing, industry and commerce, not land for growing things, be it food. timber, sagebrush or weeds. If you start defining managed forests as developed you are using a definition UNRELATED to the discussion which is about urban development. That would be sort of misuse of definitions that is so frequently found among the big money environmental corporations. (They have to keep scaring people to keep the money flowing in.)
Under a definition relevant to the discussion, the correct number is your 3% above.
Examples of definition misuse might be: Counting abandoned farmland that is reverting back to forest, as lost farm land. Including people who won the lottery and quit working as unemployed. *Claiming air pollution has increases because more days are failing the standard without mentioning that the standard was tightened up and in fact all those days were better than in years past.
If there is money to be made, someone will be leaving out little details, or misusing the data.
Thanks JK
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