Oregon Public Broadcasting

The Oregon Supreme Court took up Oregon’s longest-running property-rights battle today. Lawyers for Multnomah County and for deceased County resident Dorothy English presented oral arguments to the justices in a case involving the Measure 37 land-use law.

Our Salem reporter, Chris Lehman, was at the state Supreme Court today.

Q:  Let’s start with some background on Dorothy English.  Why was she seeking compensation from Multnomah County?

A:  This was the very first claim involving Measure 37. If you’ll remember, Measure 37 was the property rights law passed by Oregon voters in 2004. Under the measure, land-owners who claim their property value was diminished by zoning or certain other regulations enacted after they purchased the property could apply for compensation from the government. If the government didn’t pay, the land-owner could go ahead and develop their property under the land-use regulations that were in effect when they bought it, even if that was decades ago.

That’s essentially what was going on in the Dorothy English case. She and her late husband had purchased some 20 acres of land just west of Portland back in the 1950’s. When they wanted to divide it up into 8 smaller plots in recent years, they were told new zoning restrictions would prevent that. During the Measure 37 campaign, Dorothy English, who was in her early 90’s, became something of a cause celebre for property-rights advocates. After it passed, she filed the first Measure 37 claim.

Q:  But that claim didn’t exactly face smooth sailing, right?

A:  That’s right. In 2006 a court said English’s land was worth $1.15 million. So Multnomah County officials decided to let English develop the land instead of paying her the money. But they said she would still have to comply with what they called health and safety regulations such as erosion control and ensuring emergency vehicle access. English’s attorney’s balked and the case has since bounced around the legal system. English herself passed away last year at the age of 95, but her family is pressing ahead. They’ve given up on the idea of developing the land and are pushing the county for that $1.15 million claim.

So today the case finally reached the Oregon Supreme Court, with attorneys for Multnomah County claiming the county still had the right to skip paying monetary damages and instead grant development rights, and attorneys for the English family estate arguing that a lower court had determined that the cash award was the only acceptable solution at this point.  Attorneys for both parties declined to speak on the record after the hearing, but this afternoon I spoke with Multnomah County chair Ted Wheeler. He said he’s looking forward to closing the books on the Dorothy English case.

Ted Wheeler:  “Personally, I believe this could have been resolved years ago and it should have been resolved years ago.  I believe that there were common sense opportunities for both the county and the English family to reach an amicable conclusion to this. By the time something gets into the hands of dueling lawyers, you’ve lost that opportunity.”

Q:  So Chris, didn’t Oregon voters change Measure 37 a couple of years ago? How does that play into this?

A:  You’re right Beth, in 2007 voters approved Measure 49, which scales back property-rights claims previously available under Measure 37. One of the questions the court will take up is whether Measure 49 supersedes existing claims made under Measure 37. Multnomah County argues it does, which would essentially throw out the monetary award and allow the county to start over again by simply granting development rights, something the family doesn’t want at this point. The attorney for the English family said that the $1.15 million was awarded by a court, and effectively giving voters the ability to override that court award would violate the separation of powers.  So that’s one thing the Oregon Supreme Court is expected to address as part of their ruling on this case.  But it could be several months before they issue a decision.

Q:  Thanks, Chris.

A:  You’re welcome, Beth.

Chris Lehman is our reporter at the state capitol.  You can read his dispatches from Salem on his blog, Capitol Currents .