MEMORANDUM RE MEASURE 37 VESTED RIGHTS
QUESTION: IN MEASURE 49 WHAT DOES THE PHRASE , "COMMON LAW VESTED
RIGHTS" MEAN?
ANALYSIS: MEASURE 49, LIKE MANY PIECES OF LEGISLATION, HAS A LIST OF DEFINED TERMS, TO BE USED TO
CONFIRM THE INTENT OF THE LEGISLATION. "COMMON LAW VESTED RIGHTS" IS NOT AMONG THE TERMS SO DEFINED. ACCORDINGLY,
EITHER THE TERM IS CLEAR AND UNAMBIGOUS ,OR IT IS NOT. BLACK'S LAW DICTIONARY, WHICH COLLECTS AND CONDENSES DEFINITIONS
FROM ALL LEGAL SOURCES DEFINES "VESTED RIGHTS" AS "A RIGHT THAT SO COMPLETELY AND DEFINITELY BELONGS TO A PERSON
THAT IT CANNOT BE IMPAIRED OR TAKEN AWAY WITHOUT THE PERSON'S CONSENT.[Cases:Constitutional Law(key)92-112. C.J.S. Constitutional
law secs:228-276] THE ORIGIN OF THE TERM IS THUS TRACED TO THE CONSTITUTION.
BY CONTRAST, DLCD HAS CIRCULATED DOCUMENTS
WHICH CITE A LINE OF CASES WHICH ORIGINATE FROM OF THE LAW OF "NON-CONFORMING USE".
QUESTION: DOES ONE USE
CONSTITUTIONAL LAW OR NONCONFORMING USE LAW TO DETERMINE "COMMON LAW VESTED RIGHTS" IN THE CONTEXT OF MEASURE 37
ANALYSIS?
"VESTED RIGHTS" IS A TERM WHICH CAN BE FOUND IN MANY COURT DECISIONS. IN INTERPRETING LEGISLATION
IT IS THE PROVINCE OF THE COURTS, AND THE COURTS ALONE, TO BE THE INTERPRETER. COURTS LOOK FIRST TO THE WORDING OF A STATUTE
TO SEE IF THE LANGUAGE IS CLEAR AND UNAMBIGUOUS. IF NOT, THE COURTS NEXT LOOK TO THE LANGUAGE AS IT IS USED IN THE CONTEXT
OF THE ENTIRE STATUTE TO DETERMINE THE MEANING.
"COMMON LAW VESTED RIGHTS" CONTAINS TWO ELEMENTS:(1)"COMMON
LAW" AND (2)"VESTED RIGHTS". "COMMON LAW" MEANS THE LAW THAT ORIGINATED IN THE BRITISH COMMON LAW(BEGINNING
WITH THE MAGNA CARTA) TOGETHER WITH COURT DECISIONS FROM THE VARIOUS STATE AND FEDERAL JURISDICTIONS.* IN OTHER WORDS, ONE
DOES NOT LOOK TO ANY CODIFIED LAW SUCH AS LEGISLATION, LOCAL ORDINANCES, OR EXECUTIVE DEPARTMENT(ADMINISTRATIVE AGENCY) ORDERS.
"VESTED
RIGHTS" IS DEFINED ABOVE. ONE LOOKS, THEN, TO THE COMMON LAW ( THE CASE LAW) TO SEE WHAT THE TERM MEANS. SINCE WE ARE
LOOKING AT AN OREGON STATUTE WE LOOK FIRST TO OREGON COURT DECISIONS TO DETERMINE THE MEANING.
DLCD EXCLUDES OREGON
COURT CASES WHICH USE A CONSTITUTIONAL LAW ANALYSIS, AND LOOKS ONLY TO OREGON LAND USE DECISIONS INVOLVING NONCONFORMING USE.
THE QUESTION IS, WHY?
CASES FROM BOTH AREAS DEFINE THE TERM, SO DOES ONE LOOK AT ALL THE CASES OR RESTRICT THE ANALYSIS
TO ONLY THE CONSTITUTIONAL CONTEXT, OR ONLY THE NONCONFORMING USE CONTEXT? THE LANGUAGE OF MEASURE 37, AS WELL AS OF MEASURE
49 ANSWERS THE QUESTION. BOTH STATE IN THEIR TEXT THAT DECISIONS MADE USING THE STATUTE ARE "NOT LAND USE DECISIONS".
NONCONFORMING USE IS CLEARLY DERIVED FROM LAND USE LAW. ACCORDINGLY, IT SEEMS PERFECTLY CLEAR THAT ONE WOULD NOT USE NONCONFORMING
USE CASES TO DETERMINE THE INTENT OF THE LEGISLATURE. MEASURE 37 WAS NOT A LAND USE STATUTE(IT PLAINLY SAYS SO); IT WAS A
STATUTE WHICH SETS UP A MANDATED LEGAL PROCESS FOR FILING A CLAIM AGAINST GOVERNMENT, SEEKING COMPENSATION FOR DAMAGES; SOMEWHAT
SIMILAR TO WORKMEN'S COMPENSATION LEGISLATION. BOTH DEFINES A CLASS OF PERSONS WHO HAVE BEEN INJURED AND BOTH ESTABLISH
A STATUTORY REMEDY.
QUESTION: WHAT DO THE OREGON COURTS HAVE TO SAY ABOUT "VESTED RIGHTS" IN DECISIONS WHICH
MEASURE 37 CLAIMS ARE AT ISSUE?
ANALYSIS: THERE ARE SEVERAL RECENT DECISIONS OF THE OREGON COURT OF APPEALS WHICH HAVE
ADDRESSED THE NATURE OF MEASURE 37 WAIVERS. THE FIRST, AND MOST NOTABLE OF THE CASES IS COREY V. DLCD, DECIDED IN 2007, WHICH
IS MUCH TALKED ABOUT. A LOT OF THE TALK HAS COME FROM DLCD, WHICH CONTINUALLY HAS CRITICIZED THE COURT OF APPEALS; CLAIMING
IT GOT IT WRONG IN COREY. THE COURT HAS STUCK TO ITS GUNS AND ITS DECISION.( INTERESTINGLY, DLCD HAS OMITTED COREY AND THE
OTHER MEASURE 37CASES FROM ANY OF THE INFORMATION IT HAS DISCIMINATED.)
THE COREY COURT HELD THAT A MEASURE 37 CLAIM
IS A PROTECTED PROPERTY RIGHT. THE COURT OF APPEALS CITES A U. S. SUPREME COURT CASE, BOARD OF REGENTS V. ROTH AND THE U.S.
CONSTITUTION IN SUPPORT OF ITS DETERMINATION. THE COURT'S CHOICE OF WORDS, "PROTECTED PROPERTY RIGHT" CLEARLY
ENCOMPASSES "VESTED RIGHT". AND, SINCE IT IS A DECISION OF AN APPELLATE COURT OF THE STATE OF OREGON, IT IS THE
BEST SOURCE FOR THE INTERPRETATION OF THE MEANING "COMMON LAW VESTED RIGHT".
IN CAREY V. LINCOLN LOAN CO.(November
14, 2006), THE OREGON SUPREME COURT REFERRING TO AN EARLIER CASE, SMITH V. CAMERON, ET AL(1928) RULED IN A FASHION WHICH SHOULD
BE THE STANDARD USED IN MEASURE 37. THE PERTINENT LANGUAGE IS "STATUTE COUND NOT BE APPLIED RETROACTIVELY ... BECAUSE
DEFENDANT ALREADY HAD A 'VESTED RIGHT' IN THE PROPERTY." AND CAREY REFERRED TO A CASE FROM ANOTHER JURISDICTION
TO STATE THAT " RETROACTIVE VALIDATION OF STATUTE NOT PERMISSIBLE IF IT WOULD 'IMPAIR THE OBLIGATION OF A CONTRACT
OR IMPAIR VESTED RIGHTS' ".
CONCLUSION
THE PRESENT COMMON LAW IN OREGON, DEVELOPED BY THE OREGON APPELLATE
COURTS IN CAREY and COREY, CLARIFIES THE "COMMON LAW VESTED RIGHTS"THE LANGUAGE OF MEASURE 49 . WAIVERS CONFER RIGHTS
WHICH VEST WHEN THE WAIVERS ARE GRANTED. THERE IS NOTHING IN MEASURE 37(ORS 197.352) WHICH REQUIRES ANYTHING MORE THAN THE
ISSUANCE OF A WAIVER BY THE COUNTY TO ESTABLISH A VESTED RIGHT. AND, MEASURE 49 PRESERVES THE RIGHT OF A MEASURE 37 WAIVER
HOLDER TO KEEP THE DEVELOPMENT RIGHTS CONFERRED BY THE WAIVER. **
JACKSON COUNTY IS CONSIDERING PASSAGE OF AN ORDINANCE
WHICH WILL ADOPT THE NONCONFORMING USE ANALYSIS PROMOTED BY DLCD. AS SHOWN ABOVE, THE COURTS, HAVE CONSISTENTLY LOOKED TO
THE CONSTITUTION, NOT LAND USE LAW IN MEASURE 37 CASES.
JACKSON COUNTY HAS ISSUED 571 MEASURE 37 WAIVERS. READING THE
LANGUAGE OF MEASURE 37 TOGETHER WITH THE SAVING CLAUSE OF MEASURE 49 MAKES IT INDISPUTABLE THAT WAIVERHOLDERS HAVE A LEGAL
RIGHT TO SEEK DAMAGES IF THE COUNTY DOES NOT HONOR THOSE WAIVERS.
FOLLOWING THE LAW AS ESTABLISHED BY THE OREGON COURTS
WILL TOTALLY ABSOLVE THE COUNTY OF ANY LIABILITY. FOLLOWING THE LEAD OF DLCD WILL LEAVE THE COUNTY LIABLE FOR REPUDIATION
OF THE 571 GRANTED WAIVERS AND POTENTIAL FINANCIAL DISASTER. THE TAXPAYERS OF JACKSON COUNTY WILL BE LEFT HOLDING THE BAG
FOR HUNDREDS OF MILLIONS OF DOLLARS IN JUDGMENTS.
THE PROPER COURSE OF ACTION SHOULD BE UNQUESTIONABLY OBVIOUS. VALIDATING
THE EXISTING MEASURE 37 WAIVERS LEADS TO A WIN-WIN RESULT.
ULTIMATE QUESTION: IS DLCD MERELY IGNORANT OF THE
LAW OR HAS IT DELIBERATELY ENGAGED IN A CRIMINAL ENTERPRISE IN CONCERT WITH VARIOUS COCONSPIRATORS; WHO TOGETHER HAVE A VISION
OF OREGON PARAMOUNT TO THE CONSTITUTIONALLY PROTECTED PROPERTY RIGHTS OF THOSE WHO HAVE BEEN FORTUNATE ENOUGH TO RECOVER THOSE
RIGHTS DURING THE WINDOW OF OPPORTUNITY AFFORDED BY MEASURE 37? DOES ANYONE DARE CONSIDER THE POSSIBILITY OF THE LATTER?
