The outcome of the election on Ballot Measure 49 has left many Measure 37 claimants asking this familiar question: now what?
Given how poorly drafted Measure 49 is, the answer to this question will be difficult to determine. Supporters of Measure 49 made many wild claims about the measure, despite what the actual language of Measure 49 says. Questions regarding the many ambiguities in Measure 49 will be answered over time by Oregon’s appellate courts.
But there is one question that is going to need to be resolved immediately. In Corey v. State of Oregon, the Oregon Court of Appeals rightly held that a decision by the government to modify, remove or not apply a land use regulation is a protected right that cannot simply be taken away from property owners merely at the whim of the government.
There is no doubt that Measure 49 attempts to eliminate all current Measure 37 claims. Measure 49’s passage raises a significant issue for current Measure 37 claimants: can the government — through Measure 49 — simply eliminate Measure 37 claims that are protected rights under the federal constitution?
The significance of the answer to this question should not be lost on anyone. If the Court of Appeals’ decision in Corey stands, then Measure 37 claimants cannot lose their rights, because those rights are protected by the constitution. Which would in turn mean that decisions made pursuant to Measure 37 would remain unaffected by Measure 49’s passage.
The Court of Appeals’ decision in Corey has been appealed to the Oregon Supreme Court and is currently under review. With the passage of Measure 49, the Corey case has taken on a whole new significance that could affect the rights of thousands of Oregonians with approved Measure 37 claims.
You can stay up-to-date on the status of the Corey case and other cases involving Measure 37 and Measure 49 by going to www.oia.org.