We've been watching Bowers v. Whitman, No. 10-24966 (Jan. 12, 2012), the case which challenged Oregon's Measure 49, the statute adopted by initiative that replaced and modified the earlier Measure 37. Measure 37, for those not aware, was the initiative measure by which Oregon voters required the state to compensate owners whose private property was devalued by land use regulations. It essentially required the state to either allow development or pay, even if the regulation did not run afoul of the high thresholds of regulatory takings doctrine.
Back to Measure 49. That statute, as the Oregon Supreme Court held, "conveys a clear intent to extinguish and replace the benefits and procedures that Measure 37 granted to landowners." Corey v. Dep't of Land Conservation & Dev., 184 P.3d 1109, 1113 (Or. 2008). But what of those landowners in process under Measure 37 when the voters adopted the new law? Measure 49 "exempted a property owner from pursuing compensation pursuant to the new provisions in Measure 49 if the property owner had "a common law vested right . . . to complete and continue the use described in the waiver.' . . . Measure 49 does not mandate any particular process for establishing vested rights. Claimants seeking a vested rights determination generally either applied for a local decision or sued for a declaratory judgment." Bowers, slip op. at 245.
Property owners who had started the Measure 37 process but had not recovered compensation and were thus halted in their tracks, sued in federal court asserting a taking of their right under Measure 37 to compensation and other vested rights:
First, Bowers Plaintiffs alleged that there had been a "taking" of protected property in violation of the Fifth Amendment due process clause. Bowers Plaintiffs asserted that those property interests were "statutory rights to monetary compensation," "vested and accrued claim[s] for compensation," "legal entitlements . . . in lieu" of monetary compensation, or "Measure 37 waivers and the entitlement to monetary compensation." Second, Bowers Plaintiffs alleged that Measure 49 violates equal protection guarantees under the Fourteenth Amendment. Third, Bowers Plaintiffs alleged that Measure 49 violates substantive due process under the 14th Amendment.
Slip op. at 247. The Ninth Circuit rejected each of these arguments, and the bulk of the opinion is devoted to analysis of whether the plaintiffs possess rights that have "vested" and are thus protected "property" under the Takings Clause. Id. at 249 ("Thus, the critical issue is whether Plaintiffs’ Measure 37 property interests have vested such that Oregon could not remove or modifythe right without committing a constitutional taking.").
The court professed confusion as to what interest they asserted was the property right that had vested, id. at 250 ("we emphasize that Plaintiffs failed to articulate any clear characterization of the exact property interest to which they are entitled"), and rejected three possibilities: (1) "accrued causes of action" under Measure 37 were not vested property rights because they had not been reduced to final judgment, id. at 251; (2) the right to statutory compensation under Measure 37 was not vested because it was not an "express and unequivocal promise" to pay compensation, id. at 252-53; and (3) Measure 37 did not give the plaintiffs any rights to a particular land use. Id. at 253-54,
On the final claim the court analogized the Measure 37 rights to land use permits, and concluded those claims were not ripe under Williamson County.
More here from lawprof Jonathan Zasloff at Legal Planet blog. Thanks to colleague Dwight Merriam for the heads up on this decision.