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Property Owner Protections Upheld by Oregon Supreme Court

In a huge win for property owners in the state, the Oregon Supreme Court on Feb. 21 overturned a trial court decision in the case of MacPherson v. DAS and upheld the constitutionality of a measure designed to provide landowners with recourse against state or local land use regulations that restrict the use of their property and reduce its fair market value.

The Oregon Home Builders Association and NAHB filed an amicus brief in the Supreme Court case.

Approved by the voters by a margin of 61% to 31%, Ballot Measure 37 entitles affected property owners to seek compensation or a waiver of the offending regulation. Last week’s ruling means that thousands of land owners in Oregon whose property has been unduly burdened by government regulations can now proceed to have their claims heard.

However, the court ruled only on the constitutionality of the measure, leaving a number of questions on its implementation unresolved.

"We're delighted that the court recognized the validity of Measure 37," said Jon Chandler, executive officer of the Oregon association, "but this is just the opening battle in the long war for increased private property protection in Oregon."

Among the issues on Measure 37 that have yet to be addressed are:

  • Whether a waiver of a land use regulation applies only to the property owner or whether any rights granted by the waiver can be conveyed to a subsequent purchaser

  • Whether state statutes, which account for a significant share of Oregon’s land use law, can be waived by state agencies or whether these waivers will require legislative approval

  • Whether the language of Measure 37 encompasses the right to subdivide or partition property, or only the right to construct a building

These issues, and others, will be answered either through cases currently or about to start wending their way through the courts, or by Oregon’s legislature in its 2007 session.

Supporters of Measure 37 say they expect to see ongoing attempts to overturn or dilute its protective provisions.

For more information, e-mail Alex Strong at NAHB, or call him at 800-368-5242 x8279.

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