IN THE SUPREME COURT OF THE

STATE OF OREGON

HECTOR MACPHERSON; BANNOCKBURN FARMS, INC.;

CLACKAMAS COUNTY FARM BUREAU; LINN COUNTY FARM BUREAU;

WASHINGTON COUNTY FARM BUREAU; MARION COUNTY FARM

BUREAU; YAMHILL COUNTY FARM BUREAU; DAVID T. ADAMS; MARK

TIPPERMAN; JAMES D. GILBERT; NORTHWOODS NURSERY, INC.;

DAVID A. VANASCHE; KEITH FISHBACK; FISHBACK NURSERY, INC.;

JACK CHAPIN and 1000 FRIENDS OF OREGON,

Plaintiffs-Respondents,

DEPARTMENT OF ADMINISTRATIVE SERVICES, Risk

Management Division, by and through Laurie Warner, its Acting Director; LAND

CONSERVATION AND DEVELOPMENT COMMISSION, Department of Land

Conservation and Development, by and through Lane Shetterly, its Director;

THE STATE OF OREGON DEPARTMENT OF JUSTICE, by and through its

Attorney General, Hardy Myers,

Defendants-Appellants,

and

CLACKAMAS COUNTY; MARION COUNTY; and WASHINGTON COUNTY,

Defendants

and

BARBARA PRETE; EUGENE PRETE; DOROTHY ENGLISH; HOWARD

MEREDITH; and JACKSON COUNTY,

Intervenors-Defendants-Appellants,

))))))))))))))))))))))))))))))))))

Marion County

Circuit Court No.

05C10444

SC No. S52875

David J. Hunnicutt, OSB #92342

Oregonians In Action, Oregon Cattlemen’s Association & Oregon State Grange

PO Box 230637

Tigard, Oregon 97281-0637

(503) 620-0258

(503) 639-6891 fax

dave@oia.org

AMICI CURIAE OREGON CATTLEMEN’S ASSOCIATION, OREGON STATE GRANGE AND

OREGONIANS IN ACTIONS BRIEF IN SUPPORT OF

INTERVENOR-DEFENDANTS-APPELLANTS/DEFENDANTS-APPELLANTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Publications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. Measure 37 Will Not Have a Significant Impact on Existing Land Use Patterns . . . . . . . . . 1

II. The Takings Clause is a Remedy in Name Only For Property Owners Subject to

Inequitable Land Use Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

TABLE OF AUTHORITIES

Cases

U.S. Supreme Court Cases:

Agins v. City of Tiburon, 447 US 255, 100 Sct 2138 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Lingle v. Chevron, 125 SCt 2074 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 106 S.Ct. 2561 (1986) . . . . . . . . . . . . . . . . . . . . 9

Penn Central Transportation Co. v. City of New York, 438 US 104, 98 Sct 2646 (1978) . . . . . . . . . . . . . . . . . . 8

Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108 (1985) . . . . 9

Oregon Supreme Court Cases:

Coast Range Conifers LLC v. State ex rel Board of Forestry, 339 Or 136, 142, 117 P3d 990, 993 (2005). . . . 6, 8

Cope v. City of Cannon Beach, 317 Or 339, 855 P2d 1083 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Dodd v. Hood River County, 317 Or 172, 184, 855 P2d 608 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Fifth Ave. Corp. v. Washington County By and Through Bd. Of County Com’rs, 282 Or 591, 609, 581 P2d 50

(1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Stevens v. City of Cannon Beach, 317 Or 131, 854 P2d 449 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Oregon Appellate Court Cases:

Dolan v. City of Tigard, 113 Or App 162, 832 P2d 853 (1992), aff’d 317 Or 110, 854 P2d 437 (1993), rev’d 512

US 374, 114 SCt 2309 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Larson v. Multnomah County, 121 Or App 119, 122, 854 P2d 476, adhered to on recons. 123 Or App 300, 859

P2d 574 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Marquam Inv. Corp. v. Beers, 47 Or App 711, 615 P2D 1064 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Nelson v. Benton County, 115 Or App 453, 839 P2d 233 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Rogers Machinery, Inc. v. City of Tigard, 181 Or App 369, 45 P3d 966 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . 8

Oregon Legislation

Oregon Constitution (Article I, Section 18) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

Senate Bill 100 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-5

Statewide Land Use Goal 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statewide Planning Goal 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Oregon Statutes

ORS 215.243 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ORS 215.780 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

ORS Chapter 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

DLCD Final Staff Reports

Final Staff Report and Recommendation, James Scheiper, August 11, 2005. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Final Staff Report and Recommendation, John and Julie Benton, June 8, 2005. . . . . . . . . . . . . . . . . . . . . . . . . . 4

Final Staff Report and Recommendation, Nelda Martin, September 2, 2005. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Final Staff Report and Recommendation, Opal Burkhardt, June 8, 2005. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Publications

“New Figures Show How State’s Rural Lands Zoned,” Oregon Department of Land Conservation and

Development (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

INTRODUCTION

The Oregon Cattlemen’s Association (Cattlemen) is a non-profit corporation formed in Baker County in

1913. The Cattlemen serve as the political and legal voice of the cattle industry in Oregon. A major part of the

Cattlemen’s mission is the protection of the rights of ranchers to make reasonable use of their property, which is

why the Cattlemen vigorously supported Measure 37 during the November elections. The Cattlemen believe

that Measure 37 is needed to protect the viability of Oregon’s ranching industry.

The Oregon State Grange (Grange) is a non-profit fraternal organization composed of members

predominantly from small towns and rural areas. The Grange is part of a national network of grange

organizations located in 30 states. As a predominantly rural based organization, the Grange advocates for

legislation that assists its members, ranging from rural quality of life issues and rural economic development to

taxation and transportation issues. The Grange was an active supporter of Measure 37, and believes that the

protection of property rights is an important part of the history and tradition of this state.

Oregonians In Action (OIA) is a non-profit social welfare corporation which advocates for the protection

of the rights of private property owners throughout Oregon. OIA was the lead organization in the campaign for

passage of Measure 37, and believes that Measure 37 achieves balance and fairness in Oregon’s land use

regulatory system. The arguments presented in this case have a direct impact on OIA’s mission, and will effect

OIA’s ability to advocate for the rights of individuals in the legislature and through the initiative.

ARGUMENT

I. Measure 37 Will Not Have a Significant Impact on Existing Land Use Patterns

In the months since Measure 37 became effective, its impact on existing zoning has not been nearly as

significant as the measure’s opponents would have this Court believe. In fact, a survey of claims approved by

the state since the measure has been in effect illustrates that the amount of land impacted by Measure 37 is not

significant.

The Oregon Department of Land Conservation and Development (DLCD) has been designated by the

The final orders may be found 1 d at:

http://www.oregon.gov/LCD/m37finalstaffreports.shtml

2 “New Figures Show How State’s Rural Lands Zoned,” Oregon Department of Land

Conservation and Development (1995).

Oregon Department of Administrative Services as the lead agency on nearly all Measure 37 claims filed with the

state to date. This should come as no surprise, since nearly all Measure 37 claims involve administrative rules

of the Land Conservation and Development Commission (LCDC).

As part of its obligation to inform the public of the status of Measure 37 claims, the DLCD maintains a

website listing the approved final orders on each of its Measure 37 claims.1 Final orders on the website are

separated by day and by month, and a copy of each final order, along with the final staff report prepared by the

DLCD, is included on the website. Id.

A review of the final orders prepared by DLCD is both enlightening and unsurprising. A large majority

of the final orders are for lands zoned for farm or forest use. This should come as no surprise, given that nearly

97 percent of the privately owned rural land in Oregon is zoned for exclusive farm or forest use.2 In fact, of the

approximately 61,500,000 acres of land in Oregon, nearly 26,000,000 acres are zoned for exclusive farm or

forest use, and nearly 34,000,000 acres are owned by federal, state, or local government, leaving a mere

1,500,000 acres for privately owned land in rural residential, commercial, or industrial zones or inside urban

growth boundaries. Id.

Thus, when nearly 98% of the state’s total land mass is owned by government or is zoned for farm or

forest use, it is no wonder that claims arising under Measure 37 are predominantly found on land zoned for farm

or forest use (which should not necessarily be equated with land that can actually be used for farm or forest

activities).

In the four full months since the DLCD began issuing final orders on Measure 37 claims (June, July,

August, September), approximately 13,400 acres of land have been approved for Measure 37 claims in a manner

that will result in the property owner being allowed to use the property in a manner that would not be allowed

3 See Final Staff Report and Recommendation, James 3 ames Scheiper, August 11, 2005.

http://www.oregon.gov/LCD/docs/measure37/finalreports/M119870_Schieper_Final_Report.pdf

4 See Final Staff Report and Recommendation, Nelda Martin, September 2, 2005.

http://www.oregon.gov/LCD/docs/measure37/finalreports/M120131_Martin_Final_Report.pdf.

Whether this level of development will ever occur, whether a market for this type of

development exists in Grant County, or whether there are services sufficient to allow

development of each of these proposed subdivision lots is not known. But allowing 20 and 10

acre parcels on land zoned for exclusive farm use is contrary to state law (ORS 215.780) and is

included in the total amount of acreage changed by Measure 37 claims to date, regardless of

whether the property use actually ever changes.

5 See Final Staff Report and Recommendation, Opal Burkhardt, June 8, 2005.

http://www.oregon.gov/LCD/docs/measure37/finalreports/M118963_Burkhard_Final_Report.pdf

under existing zoning on the property. The change in use may be as minor as allowing a property owner to build

one single family dwelling on a 59.7 acre parcel in Yamhill County3 to an approval to subdivide a 1,337 acre

tract in Grant County into thirty two 20 acre lots and sixty five 10 acre lots.4

At current rates, approximately 40,000 acres of land per year will be approved for some type of use not

contemplated by current zoning on the property. But these averages will decline significantly in the near term,

as property subject to Measure 37 claims changes hands, either by death of the current owner prior to filing a

Measure 37 claim or by sale or other transfer of the property prior to filing of the Measure 37 claim. A survey

of the state’s application of Measure 37 to submitted claims illustrates this point.

A few of the Measure 37 claims approved by DLCD to date involve claimants who have owned their

property continuously since before the passage of Senate Bill 100 (1973) and the adoption of LCDC’s Statewide

Planning Goals in 1975. These two events made significant changes in the state’s regulatory land use system,

imposing new barriers on rural property owners. For example, Opal Burkhard purchased 116 acres of land in

Columbia County in 1946.5 As the DLCD correctly notes, at the time of her purchase, there were no state laws

regulating the uses of Mrs. Burkhard’s property, save for a few provisions currently found in ORS Chapter 92,

which do not effect Mrs. Burkhard’s claim. Id. Consequently, Mrs. Burkhard will be able to divide her

property into approximately 4 acre parcels, provided she can do so in a manner that complies with existing

health and safety laws, which are exempt from Measure 37.

See Final Staff Report and Recommendation, John and Julie 6 ie Benton, June 8, 2005.

http://www.oregon.gov/LCD/docs/measure37/finalreports/M118961_Benton_Final_Report.pdf

But a review of the claims approved by the DLCD to date shows that a more typical claim involves

property which was purchased sometime after the effective date of Senate Bill 100 (1973). For example, John

and Julie Benton acquired property in Hood River County in 1977, after the effective date of Senate Bill 100

(1973) and after the Statewide Land Use Planning Goals had been adopted.6 In their Measure 37 claim, the

Benton’s sought the right to subdivide their 57 acre parcel, which is currently zoned for exclusive farm use, into

residential lots of approximately one-quarter acre in size. Id.

The DLCD approved the Benton’s claim in part, recognizing that the 80 acre minimum parcel size

standard in ORS 215.780 was adopted in 1993, some 16 years after the Benton’s acquired their parcel. Id. But

the DLCD also recognized that at the time the Benton’s acquired their property in 1977, Hood River County

ordinances contained a five acre minimum parcel size on the Benton property, and Statewide Land Use Goal 3

applied directly to the Benton property, as the County’s land use ordinance had not been acknowledged by

LCDC as being in compliance with the goals. Id.

Consequently, not only was a five acre minimum parcel size the smallest division allowed on the Benton

property at the time the Benton’s acquired an interest in the property, but the Benton’s would be required to

demonstrate that any division of their 57 acre parcel resulting from their Measure 37 claim would result in

parcels of a size that are “appropriate for the continuation of the existing commercial agricultural enterprise in

the area” and could be shown to comply with the legislative intent established by ORS 215.243.

In other words, not only would the Benton’s not qualify for the one quarter acre lots that they sought in

their Measure 37 application, they would likely not even qualify to divide their 57 acre parcel into five acre lots.

A review of the DLCD’s final orders demonstrates that this is the position that the DLCD is taking on all

Measure 37 claims for property acquired after the adoption of Senate Bill 100 (1973).

For purpose of significant change, therefore, only rural properties acquired by the current owner prior to

1973 will change in ways that are significantly different from current zoning, and then only if they property was

not subject to local zoning at the time of its acquisition. Nevertheless, because owners like the Benton’s may be

able to make some type of different use of their property as a result of the Measure 37 approval granted by

DLCD, the Benton’s acreage has been included in the 13,400 acres of land that has currently been approved for

Measure 37 claims by DLCD that may change as a result of that approval.

The requirement of long term ownership illustrates why Measure 37 approvals will significantly decrease with the
passage of time. The number of Measure 37 claimants who have owned their property since

prior to the adoption of Senate Bill 100 (1973), and who will have the ability to make significant changes in that

property is already a small percentage of the claims filed. By virtue of their length of ownership, these people

will be elderly, and will either file their claim (or not) in the very near future, presuming Measure 37 survives.

Thus to expect the claims to be approved at a rate totaling 40,000 acres a year for any length of time is simply

not supported by DLCD practice or by common sense.

But even if claims average at the rate of 40,000 acres per year (at which point claimants seeking to avoid

the enforcement of statewide planning goals and farm/forest zoning will need to demonstrate ownership of the

property for more than 42 years), in ten years the amount of acreage changed as a result of Measure 37 claims

will total approximately 400,000 acres, out of the 61,500,000 acres of land in the state. For all the hype about

Measure 37, the notion that current trends indicate that Measure 37 will impact slightly over one half of one

percent of the state’s land mass (.005) illustrates that Measure 37 will not end the world as we know it.

For those owning property with valid Measure 37 claims, however, the impact of Measure 37 is

significant, and represents a return of the rights that they acquired with the acquisition of their property.

Contrary to the assertions of Judge James that the property owners with valid Measure 37 claims are receiving a

“windfall,” property owners like Opal Burkhard are simply getting back the rights that were taken from them in

the first place. For these property owners, Measure 37 represents a return of their investment.

////

II. The Takings Clause is a Remedy in Name Only For Property Owners Subject to Inequitable Land

Use Regulations

Given the broad scope and economic impact of Oregon’s land use regulatory system on property owners,

frequent litigation under the just compensation clause of the Oregon Constitution (Article I, Section 18) would

seem to be an inevitable byproduct. This is particularly true given the method of constitutional interpretation

chosen by this Court, in which the court attempts to “identify the historical principles embodied in the

constitutional text and to apply those principles faithfully to modern circumstances.” Coast Range Conifers

LLC v. State ex rel Board of Forestry, 339 Or 136, 142, 117 P3d 990, 993 (2005).

But reported takings challenges to Oregon land use regulations have been few and far between. There

are two primary reasons for this lack of litigation.

Lack of Guidance From the Oregon Appellate Courts

First, this Court has interpreted Article I, Section 18 to provide that no taking occurs if the property

owner retains “some substantial beneficial use” of the property. Fifth Ave. Corp. v. Washington County By and

Through Bd. Of County Com’rs, 282 Or 591, 609, 581 P2d 50 (1978); Dodd v. Hood River County, 317 Or 172,

184, 855 P2d 608 (1993). By necessity, this subjective test results in an ad hoc, fact based inquiry that provides

little precedential value for subsequent litigants, and gives counsel for property owners little guidance in

advising clients.

The seminal case on what constitutes a deprivation of “all economically viable use of the property” for

purposes of Article I, Section 18 is Dodd v. Hood River County, 317 Or 172, 855 P2d 608 (1993). In Dodd, the

property owners purchased a 40 acre parcel of land zoned for forest use in 1983 for $33,000. Id. at 176. At the

time of the purchase, a single family dwelling was an authorized use on the property. Id. at 176.

Subsequent to the purchase of the property but prior to the time of the plaintiff’s request for approval to

site a dwelling on the property, Hood River County, in order to bring their comprehensive plan and zoning

ordinance into compliance with Statewide Planning Goal 4, adopted new regulations on the plaintiffs property

to prohibit the siting of a dwelling. Id. at 176.

The plaintiffs submitted applications for a land use permit, conditional use permit, zone and

comprehensive plan change to allow the construction of a single family dwelling on their property. Id. at 176-

77. As part of the application, plaintiffs submitted a report from a forestry expert indicating that the value of

plaintiffs property without the ability to site a dwelling was $691.Id. at 177. The county’s forester submitted a

report indicating that the value of the timber on plaintiffs property was $10,000. Id. at 177. Plaintiffs

applications were denied by the County, and an appeal ensued. Id. at 177.

On review, this Court rejected plaintiffs takings challenge, eschewing a formula based on the

comparison between purchase price and current value with the regulation for determining whether the

challenged regulation had resulted in loss of all economically beneficial use of the property. Id. at 185-86.

Instead, this Court decided that, on the facts presented in the case, a use that is capable of generating $10,000 in

profit on land purchased for $33,000 “certainly constitutes some substantial beneficial use.” Id. at 186.

Unfortunately, this Court acknowledged that it had not defined the factors that should be considered in

analyzing a takings claim under the Oregon Constitution. Id. at 184 (fn. 14). After acknowledging the lack of

any defining standards to guide the bench, bar, and citizenry, this Court then failed to indicate what it considered

to be the factors needed to analyze a takings claim.

In the end, Dodd left as many questions unanswered as it answered. One can glean from Dodd that a

takings challenge under the Oregon Constitution will not necessarily be based on a comparison between the

purchase price of the property and the fair market value of the property with the subsequent regulations, but that

it may be based on this analysis, or some other analysis known only to this Court, which will then be applied to

the facts of the case in a manner known only to this Court. This analysis hardly inspires confidence for property

owners wondering whether a regulation has resulted in a taking of their property, and would make even the

bravest of property owners question their sanity before pressing forward with a regulatory takings claim.

Since Dodd, no case has further fleshed out the parameters of what constitutes sufficient deprivation of

use so as to constitute a regulatory taking by government.

The Oregon appellate courts have fared no better in analyzing the requirements for a valid regulatory

takings claim under the takings clause of the United States Constitution, most likely because the United States

Supreme Court has struggled to come up with cohesive guidelines for Fifth Amendment regulatory takings

cases. Although a few Oregon cases cite to the three prong test for a regulatory taking found in Penn Central

Transportation Co. v. City of New York, 438 US 104, 98 Sct 2646 (1978), the cases provide no guidance for

litigants in the proper interpretation of each prong, and the United States Supreme Court has not provided much

guidance on applying the test (see Marquam Inv. Corp. v. Beers, 47 Or App 711, 615 P2D 1064 (1980), Cope v.

City of Cannon Beach, 317 Or 339, 855 P2d 1083 (1993), Coast Range Conifers, LLC v. State ex rel Oregon

State Bd. of Forestry, 339 Or 136, 117 P3d 990 (2005)).

Rather than relying on the Penn Central methodology, Oregon appellate courts seem to prefer the two

prong test for a fifth amendment taking first set out in Agins v. City of Tiburon, 447 US 255, 100 Sct 2138

(1980). The reasons for the court’s reliance on Agins instead of Penn Central are unclear, but one could surmise

that since the second prong of the Agins test approximates the “substantial economic use” test developed by this

Court for interpreting regulatory takings under the Oregon takings clause, the courts felt more comfortable

applying Agins. For cases applying Agins, see Dolan v. City of Tigard, 113 Or App 162, 832 P2d 853 (1992),

aff’d 317 Or 110, 854 P2d 437 (1993), rev’d 512 US 374, 114 SCt 2309 (1994), Nelson v. Benton County, 115

Or App 453, 839 P2d 233 (1992), Stevens v. City of Cannon Beach, 317 Or 131, 854 P2d 449 (1993), Cope v.

City of Cannon Beach, 317 Or 339, 855 P2d 1083 (1993), Rogers Machinery, Inc. v. City of Tigard, 181 Or App

369, 45 P3d 966 (2002). The United States Supreme Court no longer applies the first prong of the Agins test as

a criteria for evaluating a regulatory takings claim. See Lingle v. Chevron, 125 SCt 2074 (2005).

Unfortunately, Oregon case law interpreting Agins is nearly as cryptic as the case law interpreting Article

I, Section 18 of the Oregon Constitution. The primary Oregon case interpreting Agins is Cope v. City of Cannon

Beach, 317 Or 339, 855 P2d 1083 (1993).

In Cope, the plaintiff landowners challenged a municipal ordinance prohibiting the use of dwellings in

residential areas of the city for “transient occupancy,” which the city defined as rental of the dwelling for a

For cases on the “ripeness” doctrine, see Williamson 7 illiamson County Regional Planning

Comm’n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108 (1985), MacDonald, Sommer & Frates

v. Yolo County, 477 U.S. 340, 106 S.Ct. 2561 (1986).

period of less than 14 days. Id. at 341-42. Plaintiffs commenced a facial challenge to the ordinance under the

fifth amendment. Id. at 342.

This Court, relying on Agins, found that the city’s ordinance did not affect a taking of the plaintiff’s

property. Applying the first prong of Agins, this Court held that the ordinance substantially advanced a

legitimate interest of the city, in that it protected the residential character of the area and expanded the supply of

affordable housing for area residents. Id. at 345-46.

This Court went on to find that the city’s ordinance satisfied the second prong of Agins, as owners of

dwellings in the city’s residential areas could reside in the dwellings or could use them as long term rentals,

either of which provided economically viable use of the properties. Id. at 346. Nothing in this Court’s opinion

demonstrates that evidence was offered by plaintiffs to demonstrate a loss in value to plaintiff’s particular

parcel, most likely due to the fact that plaintiffs challenge to the ordinance was a facial one.

Beyond Cope, there is little Oregon appellate court guidance to property owners wishing to make takings

claims in Oregon courts under the Fifth Amendment. What little guidance exists cautions against the filing of a

claim. Oregon property owners wishing to challenge a land use regulation are thus left with little hope under the

Oregon court’s analysis of the state or federal takings clause.

The “Ripeness” Requirement

The second reason for a lack of takings litigation concerning Oregon land use regulations is the

requirement that a property owner “ripen” a takings claims in order to pursue it in court, by submitting sufficient

land use application to the public entity to demonstrate that the regulatory scheme results in sufficient

deprivation of property use to constitute a taking.7 Oregon appellate court decisions on ripeness mirror those of

the United States Supreme Court, and require a property owner to submit at least two applications for uses on

the subject property in order to demonstrate a claim is ripe. Larson v. Multnomah County, 121 Or App 119, 122,

854 P2d 476, adhered to on recons. 123 Or App 300, 859 P2d 574 (1993).

This “rule” can hardly be characterized as a hard and fast standard, however. By any account, the

determination of whether a claim is “ripe” for judicial review is highly discretionary, fact specific, and in many

cases, a matter left to the cleverness (or lack thereof) of counsel for the government. Neither Oregon appellate

court case law nor that of the United States Supreme Court provides clear guidance for determining when a

claim is ripe. In fact, the Oregon Court of Appeals appears to be satisfied in telling a property owner that a

claim is not ripe, but does not seem to be inclined to provide any guidance as to what is required to ripen the

claim.

As a result of the high standards set for demonstrating a regulatory takings claim, the lack of clear

guidance from the Oregon appellate courts, and the unwillingness of the courts to provide guidance as to when a

taking claim is “ripe,” it is nearly impossible for an Oregon property owner to file a successful regulatory taking

claim, even if a land use regulation triggers a loss of all (or nearly all) economic value of the property. Thus,

property owners hurt by Oregon’s land use scheme have little hope in prevailing on an inverse condemnation

claim under either the state or federal constitutions, thus making Measure 37 the only hope for many Oregon

property owners.

CONCLUSION

The statistics compiled by the DLCD concerning Measure 37 claims point to only one conclusion -

Measure 37 simply has not had the impact on Oregon’s land use planning system that opponents of the measure

feared.

////

But for those with Measure 37 claims, the opportunity to realize a return on property that they had

purchased, in many cases decades ago, is the only hope that they have to get back the “sticks” that were taken

from the “bundle” of property rights that they purchased when they purchased their land. The legislative and

executive branches have been unwilling or unable to act to provide balance to Oregon’s land use planning

system. Measure 37 provides that balance. Amici urge this Court to carefully weigh the arguments raised by

the parties, and consider the effect that a ruling in this case will have on those who have again voted for balance

in Oregon’s land use planning system, and who have again acted in accordance with a Measure approved with a

strong majority of Oregon voters.

DATED this ______ day of December, 2005.

______________________________________

David J. Hunnicutt, OSB #92342

Attorney for Amici Curiae

Oregon Cattlemen’s Association, Oregon State

Grange and Oregonians In Action