June 27, 2012

PLF files brief in Oregon Measure 37 case at the U.S. Supreme Court

By Brian T. Hodges Senior Attorney

A few days ago, we filed our amicus brief supporting the petition for certiorari at the U.S. Supreme Court in Bruner v. Whitman.  The Bruner case asks whether the State of Oregon can unilaterally terminate legal agreements it entered into with property owners that allowed them to develop their land, which is encumbered by onerous development restrictions.

This issue goes back to 2004, when Oregon voters passed a law called “Measure 37.”  Measure 37 allowed property owners to file claims for just compensation if they had suffered a reduction in property value due to regulations enacted after they acquired their property.  Faced with a Measure 37 claim, the regulating agency could choose either to pay for the lost value, or “waive” the offending regulations.  Nearly all of the 6,857 claims were settled through the waiver process.  The petitioners, A.L. and Marilyn Bruner, received a Measure 37 waiver, which was designed to allow them to develop their land as “compensation” for over $4 million in lost value.

However, Oregon repealed the compensation provisions of Measure 37 in 2007 when “Measure 49” was enacted.  Measure 49 had the effect of retroactively undoing all of the waivers, meaning that property owners who received compensation through the Measure 37 waiver process once again found themselves stymied by regulation.  Many of them—and there are probably thousands just like the Bruners—have no remedy under Measure 49 comparable to what they received under Measure 37.

Our brief argues that the Court should take the case to review whether Oregon’s retroactive termination of Measure 37 waivers violates the well-established due process rule against retroactive legislation.  As Justice Story wrote in his Commentaries on the Constitution, “[R]etro-spective laws are, indeed, generally unjust; and as has been forcibly said, neither accord with sound legislation nor with the fundamental principles of the social compact.”

The Court is set to conference on the petition on September 24.

For more information about Measure 37, see the law review article by PLF attorneys called Measure 37: Paying People for What We Take, 36 Envtl. L. 79 (2006).

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