Friday, January 13, 2012

Jon Bowers v. Richard Whitman

Jan 12: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 10-35966 & 10-36029. Appealed from the United States District Court for the District of Oregon. The Appeals Court explained that In this consolidated appeal, the Appeals Court must determine whether the State of Oregon and Jackson County (collectively Oregon) committed a constitutional taking, violated Plaintiffs' due process rights, or violated Plaintiffs' equal protection rights when Oregon voters enacted Measure 49 to replace and modify remedies available under the previous Measure 37.
    All of the Plaintiffs in the cases are owners of real property in the State of Oregon, who submitted written demands for compensation under Measure 37 and received timely waivers. None of these individual plaintiffs have recovered any monetary compensation, and, because of Measure 49, none have been able to proceed with any development of their land under the waivers granted.
    Measure 37 required "state and local governments to compensate private property owners for the reduction in the fair market value of their real property that results from any land use regulations of those governmental entities that restrict the use of the subject properties." Measure 49, was also approved by the voters and The Oregon Supreme Court examined the text and context of Measure 49 and found that it "conveys a clear intent to extinguish and replace the benefits and procedures that Measure 37 granted to landowners."
    The Appeals Court ruled, "We conclude that Oregon did not commit a constitutional taking when it modified the remedies available under Measure 37, because any potential property interest that Plaintiffs had for compensation or a specific type of land use under Measure 37 had not vested. Measure 49 also does not contravene substantive due process, because it does not implicate fundamental rights. For this reason, and also because the regulatory classification under Measure 49 is not based on a suspect class, Measure 49 also survives rational basis scrutiny and has not violated Plaintiffs' equal protection rights. Therefore, we affirm the district court."
    Access the complete opinion (click here). [#Land, #CA9]