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On Panner ruling, make it fast
The Oregonian
[January 6th, 2009]
On Panner ruling, make it fast
by Editorial Board, The Oregonian
Tuesday January 06, 2009, 1:34 AM
Federal courts insert themselves in land-use cases
only rarely, and you can see why judging from this case
Late last year, U.S. District Judge Owen M. Panner sowed hope, pain and confusion with his singular interpretation of Oregon's Measure 37.
In what may be the cruelest aspect of the ruling, it has almost singlehandedly revived the hopes of some elderly property owners in our state. Some still believe they're entitled to develop subdivisions on farmland under Measure 37 – even though voters got rid of that bad law in 2007. They replaced it with a better law, Measure 49.
Panner did not throw out Measure 49, but he did throw it into doubt. He ruled that Measure 49 couldn't be used to invalidate waivers Jackson County granted to property owners under the old law. These waivers are binding contracts, and can't be undone by legislative acts, Panner held – contradicting most land-use experts.
As land-use attorneys Edward J. Sullivan and Carrie A. Richter wrote recently in the Daily Journal of Commerce, "The determination that a granted Measure 37 claim is a contract right that may not be altered by general legislation is both novel and unsettling."
Counties granted waivers to property owners, remember, in lieu of paying them compensation. Waivers allow property owners to break rules that still apply to everyone else, so long as the owners bought their land before the state rules went into effect. If anything, waivers abrogate contracts.
Attorneys aren't eager, of course, to say publicly when they think a judge is flat wrong. (And there appears to be great respect for Panner, in general, in the legal community.) But, privately, some attorneys have been fairly frank in saying Panner misunderstood, among other things, the two-tiered nature of Oregon land-use law. (Both the state and the county have to grant waivers.)
Most land-use experts seem confident Panner's decision will be overturned in the long run. But the problem is, it could be a very long run. To the relief of many land-use advocates, Jackson County did decide last month to appeal the ruling. But obtaining a decision from the Ninth Circuit Court of Appeals could take two years.
During that time, elderly claimants will be left in limbo, vulnerable to predatory developers. And a great deal of collateral damage could be done to Oregon's land-use system.
That's why Jackson County should ask for an expedited review of the case. That could still take six months, but it's better than the alternative. Jackson County should also request that the state of Oregon join the case, since the decision will be important to the entire state.
Meanwhile, the new ombudsman appointed under Measure 49 to the state Department of Land Conservation and Development should be working hard to ferret out instances of true injustice to elderly claimants – real hardship cases, left in the lurch by Measure 37.
The Panner ruling is, indeed, as the attorneys above put it oh-so-tactfully, "novel" and "unsettling." It's also, or so we have reason to believe, anyway, out of sync with state law. A reversal can't come fast enough.