Bowers et al v. Whitman et al

Filing 38

ORDER: Granting Defendants' Motion for Summary Judgment 21 ; Denying Plaintiffs' amended Motion for Partial Summary Judgment 29 ). Signed on 9/28/2010 by Judge Owen M. Panner. (dkj)

Bowers et al v. Whitman et al

Doc. 38

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF OREGON

JON and LYNNA BOWERS, et aI., Civ. No. 09-3082-PA Plaintiffs,

ORDER
v.

RICHARD WHITMAN, et aI., Defendants.

PANNER,J.
In 2004, Oregon voters passed Ballot Measure 37, which required that state and local governments compensate property owners i f land use regulations reduced the fair market value o f real property after the owner acquired it. Measure 37 gave state and local governments unilateral discretion to pay property owners monetary compensation or to waive enforcement o f the offending land use regulations. See Or. Rev. Stat. § 197.352(8) (2005) ("the governing body responsible for enacting the land use regulation may modifY, remove, or not to [sic] apply" land use r e g u l a t i o n s " i n l i e u o f p a y m e n t o f j u s t c o m p e n s a t i o n " ) .

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- ORDER

Dockets.Justia.com

Plaintiffs here received Measure 37 waivers from Jackson, Josephine, or Lane counties. In 2007, voters passed Ballot Measure 49, which superseded Measure 37 and retroactively invalidated all Measure 37 waivers. See Corey v. Dep 't o f L a n d Conservation a n d Dev., 344 Or. 4 5 7 , 4 6 6 - 6 7 , 184 P.3d 1109, 1114 (2008). Plaintiffs claim that Measure 4 9 ' s retroactive invalidation o f Measure 37 waivers violates their rights to substantive and procedural due process and to equal protection. The parties move for summary judgment. I grant defendants' motion and deny plaintiffs' motion. DISCUSSION This case is ready for summary judgment. There are no disputed issues o f material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Plaintiffs claim that Measure 49 violates their rights to substantive due process because Measure 49 retroactively invalidates their Measure 37 waivers. In deciding whether Measure 49 violated plaintiffs' rights to substantive due process, I must determine the type o f interest at stake. Plaintiffs characterize Measure 37 waivers alternatively as legally vested claims for monetary compensation; as binding contracts between the claimant and the government issuing the waiver; or as final judgments. I previously addressed the legal effect o f Measure 37 waivers after Measure 49 in C i t i z e n s j o r Constitutional Fairness v. Jackson County, Civ. No. 08-3015-PA, 2008 WL 4890585 (D. Or. Nov. 1 2 , 2 0 0 8 ) (Citizens 1). There, I ruled that Measure 37 waivers were constitutionally protected contracts between the property owner and the issuing county, o r alternatively were equivalent to judgments issued by the county commissioners. I concluded that Jackson County was required to honor the Measure 37 waivers.
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After the parties here completed their briefing on summary judgment, the Ninth Circuit reversed Citizens I, ruling that Measure 37 waivers are neither contracts nor judgments. Citizens f o r Constitutional Fairness v. Jackson County, 2010 W L 2836106 (9th Cir. 2010) (memorandum disposition). The Ninth Circuit's rulings on Measure 37 waivers apply here because the legal issues are the same. The circuit's decision resolves this case. CONCLUSION Defendants' motion for summary j u d g m e n t (#21) is granted. Plaintiffs' amended motion for partial summary j u d g m e n t (#29) is denied. IT IS SO ORDERED. DATED this

---u..- day of September, 2010.

OWEN M. PA N N E R U.S. DISTRICT JUDGE

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