Development Law Group Update: Measure 49 Unenforceable? Measure 37 Revived?
11/17/2008

A recent federal district court opinion raises significant questions regarding whether Measure 49 actually altered the rights previously granted by Measure 37 waivers. The case, Citizens for Constitutional Fairness v. Jackson County, arose after Jackson County told property owners that it would not honor Measure 37 waivers that had not been "vested." Last week Judge Panner ruled against Jackson County, holding that Measure 49 could not be applied to the plaintiff property owners' unvested Measure 37 waivers for two separate reasons. First, he held that Measure 37 waivers constituted binding contracts between the property owners and Jackson County. Because the U.S. Constitution protects these contracts, the judge held that Jackson County cannot use Measure 49 as an excuse to avoid the contractual obligations to which it had agreed in Measure 37 waivers. Second, the judge held that the separation of powers doctrine would be violated if Measure 49 rescinded Measure 37 waivers, because a legislative act, like Measure 49, cannot be used to overrule a quasi-judicial decision, such as the granting of a Measure 37 waiver. Thus, the judge ruled that the plaintiffs' Measure 37 waivers are valid and enforceable.

If other courts accept this decision's line of reasoning, property owners across the state could find their Measure 37 waivers revived. Imagine, for example, that under Measure 37 a county waived its land use regulations that had prevented a property owner from developing a 40-lot subdivision but that the owner had not acted to "vest" this waiver prior to the enactment of Measure 49. Under Judge Panner's reasoning, the county could not use Measure 49 to effectively reinstate the waived land use regulations preventing a 40-lot subdivision on the property.

This decision could also eliminate a burden on those property owners who did act to "vest" their waivers prior to the enactment of Measure 49. Rather than having to prove that they satisfied the common law test for vested rights, these property owners could simply rely on the fact that they were granted Measure 37 waivers.

Judge Panner's decision, however, leaves at least one key question unanswered. Because his decision was limited to whether Measure 49 rendered a county Measure 37 waiver unenforceable, it did not address whether a county Measure 37 waiver is enforceable if the state did not also grant a Measure 37 waiver of applicable state land use regulations. This issue is almost certain to arise in subsequent Measure 37 and Measure 49 litigation.

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