I received a couple of emails critical of my last column relating to Judge Mary Merten James’ recent ruling invalidating the popular land use planning reforms (Measure 37) passed by a 61 percent majority of voters at the last election. The criticism related to the fact that I chose to respond to the decision on political grounds rather than legal grounds given that I am a lawyer.

That’s fair, but although I am a lawyer and still retain my license in my native state of Montana, I am no longer actively engaged in the practice of law. My role for the Mail Tribune is to provide political commentary-not legal analysis. Because I view Judge James’ decision as a sharply political decision, a political response was warranted.

The whole basis of Judge James’s decision comes down to two horrendously erroneous assertions. First, that there is an inherent governmental right to engage in land use planning, and that the people and the legislature are powerless to impose limits on the exercise of that power. ("Inherent" is judicial activist code for "it doesn’t really say that-we just made it up.")Â

All power delegated directly to state government is found in the state constitution. The Oregon Constitution is devoid of the term "land use planning." Land use planning arises from the legitimate exercise of the state’s police powers. Those powers, like all powers not specifically granted government under the constitution, arise from the people. (Article I. Section 1. Constitution of Oregon.) When the people delegate such powers to the government, they can do so subject to such restrictions as they want. If the legislature can authorize land use planning, then either the legislature or the people can restrict it. That is precisely what Measure 37 did – it restricted land use planning by requiring that the state can either pay landowners when it takes away the use of their land, or refrain from taking it.Â

Judge James apparently feels that any law that makes it more difficult for the government to exercise its inherent powers is somehow unconstitutional. And in this case, requiring the government to pay for what it takes from landowners makes it more difficult to adopt and administer land use regulations.

Now here’s the rub. Under Judge James’ ruling, the only way you can limit the government’s power to take the use of your land is to adopt a constitutional amendment – any other measure is unconstitutional. However, the Oregon Supreme Court has already declared attempts to impose constitutional limitations on land use regulation are "unconstitutional," in that they implicitly violate the single subject, single provision limitations on constitutional initiatives. Here again, "implicit" is judicial activist code for "it doesn’t really say that-we just made it up."

Judge James would have you believe that land use planning has somehow risen to the status of inviolate right that, once given, can never be limited. The net result of such a bizarre notion is that Oregon citizens no longer own their land, they simply pay for it and the government will determine who can use it and for what purposes. That is anathema to basic constitutional concepts.

The second erroneous assertion by Judge James is that Measure 37 violates the "equal privileges and immunities" clause of the Oregon Constitution. (Article 1, Section 20, Constitution of Oregon.) She asserts that adjacent landowners will be treated differently for zoning purposes based upon the date of the acquisition of their property. Well, duh! The only reason that adjacent landowners are treated differently is because zoning was imposed on them in the first place. Prior to zoning everybody had the same right to use their land as they saw fit.Â

Moreover, the whole concept of zoning results in treating adjacent landowners differently for a whole variety of purposes, including the date of acquisition of their property. Perhaps Judge James has never heard of "grandfathering" or "non-conforming use" which is a common zoning principle that allows a person to continue to use their land as they did at the time of the implementation of zoning. Absent such a concept, zoning would routinely drive people, including agricultural people, off their lands. Perhaps Judge James has never heard of "zoning variances" which allow governments to grant specific landowners the right to use their land for purposes other than that contemplated by the original zoning. Perhaps Judge James is unaware that zoning for business uses abuts zoning for residential uses thus creating different uses for adjacent property owners and that such decisions are often made for political reasons. And finally, perhaps Judge James is unaware that cities and counties routinely change their zoning requirements by shifting uses and boundaries thus creating different uses for adjacent property owners.Â

Now, you may conclude that these are just the ramblings of a political zealot, but you would be wrong. No less a legal luminary than Dean James Huffman, head of the prestigious Lewis and Clark Law School in Portland has arrived at the same conclusions.

When judges decide to substitute their personal policy views for those of the legislature or the people, we move from a nation governed by the rule of law to a nation governed by the whim and caprice of judges.

Reprinted with permission of author. Published on 11/07/05