\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 1 28-JUN-06 12:09
MacPherson v. Department of Administrative
Services: Amicus Curiae Brief of the Oregon
Chapter of the American Planning
Association and the American
Planning Association
PREFACE BY CARRIE RICHTER AND EDWARD J. SULLIVAN:
DARKNESS OVER THE LAND: A PLANNING LAWYER?S VIEW OF
MEASURE 37 AND OREGON?S PLANNING PROGRAM
Text of the Brief
I. Introduction ....................................... 358 R
II. Land Use Planning in Oregon Before
Measure 37 ........................................ 359 R
III. How Measure 37 Has Affected Land-Use Planning
in Oregon: The Anti-Planning Principle ........... 365 R
A. The Facts ...................................... 365 R
B. How ?Swiss Cheese Development? Impacts
Sound Planning ................................ 366 R
C. The Vagaries of Determining Reduction in
Value .......................................... 368 R
D. Impacts on the Planning Process............... 371 R
E. Impacts to Neighbors and the Community..... 372 R
IV. Reforming the Planning Process ................... 373 R
V. Conclusion ......................................... 376 R
Appendices................................................ 377 R
Appendix A: Preliminary Draft Analysis of Measure 37
Claims Based on Unverified Data Submitted by
Claimants .......................................... 377 R
Appendix B: Map of Measure 37 Claims.................. 380 R
[355]
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 2 28-JUN-06 12:09
356 J. ENVTL. LAW AND LITIGATION [Vol. 20, 2005]
PREFACE BY CARRIE RICHTER*
AND EDWARD J. SULLIVAN:**
DARKNESS OVER THE LAND: A PLANNING
LAWYER?S VIEW OF MEASURE 37 AND
OREGON?S PLANNING PROGRAM
In 2004, Oregon voters passed Measure 37, a statutory enact-
ment ostensibly designed to compensate private landowners for
supposed declines in their property values caused by certain
land-use regulations.1  However, as is argued at length in the
amicus brief below, what the measure really does is provide
windfalls to some property owners, harm the security of others,
and lay waste to Oregon?s revered land-use planning program.
When certain land-use regulations affect the fair market value
of real property, Measure 37 requires state and local govern-
ments to either pay private landowners compensation or ?mod-
ify, remove or not . . . apply? the regulations.2  Because the
measure does not provide a compensation mechanism, and Ore-
gon?s state and local governments can ill afford to pay claims, the
measure essentially forces governments to waive land-use regula-
tions, thereby undermining Oregon?s comprehensive planning
program.  In short, the measure devastates the very program that
has made Oregon?s cities national models of sound land-use
planning.3
On October 14, 2004, the Marion County Circuit Court held
that Measure 37 violated an array of state and federal constitu-
* Associate, Garvey Schubert Barer, Portland, Oregon, JD, Northwestern School
of Law of Lewis and Clark College (2000); MS (Architecture), University of Utah
(1995); BA, Lewis and Clark College, 1992.  The author is grateful for the assistance
of Lisa Gramp and other members of the APA.
** Owner, Garvey Schubert Barer, Portland, Oregon, MA (Political Thought),
University of Durham; Diploma in Law, University College, Oxford, (1984); LLM,
University College, London (1978); Urban Studies Certificate, Portland State
University (1974); MA (History), Portland State University (1973); JD, Willamette
University; BA, St. John?s University (N.Y.) (1966).
1 See MacPherson v. Dep?t of Admin. Serv., 340 Or. 117, 121 (2006).
2 OR. REV. STAT. ? 197.352(8) (2005).
3 See, e.g., Oregon Dep?t of Land Conservation and Dev., History of the Program
available at http://www.oregon.gov/LCD/history.shtml#Honors_and_Awards (last
visited Apr. 9, 2006) (listing honors and awards).
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 3 28-JUN-06 12:09
MacPherson v. Department of Administrative Services 357
tional provisions,4 giving land-use planning advocates hope that
the measure would suffer the same fate as its failed predecessor,
Measure 7.5  However, on February 21, 2006, the Oregon Su-
preme Court reversed the circuit court?s decision and upheld
Measure 37.
The court first addressed challenges to Measure 37 under the
Oregon Constitution, holding that (1) Measure 37 does not inter-
fere with the plenary power to legislate because lawmakers are
free to enact future land-use laws and can modify or repeal the
measure itself;6  (2) Measure 37?s grant of claimant status only to
landowners who purchased property prior to the effective date of
pertinent land-use regulations does not violate the Oregon Con-
stitution?s equal privileges and immunities clause;7 (3) Measure
37?s directive to pay compensation or ?modify, remove or not . . .
apply? land-use regulations does not violate the Oregon Consti-
tution?s suspension of laws provision;8 (4) Measure 37 does not
violate separation of powers principles because the measure does
not improperly delegate executive power to legislative bodies,
and because the measure furnishes adequate safeguards against
the arbitrary exercise of delegated legislative authority;9 and (5)
Measure 37 is not an impermissible waiver of sovereign immunity
because the Oregon Constitution does not prohibit the State
from paying property owners for the economic consequences of
land-use regulations or from waiving its immunity to allow own-
ers to assert their claims in court.10
The court then addressed challenges to the measure under the
Fourteenth Amendment of the U.S. Constitution, holding that
(1) Measure 37 does not, on its face, violate non-claimant prop-
erty owners? procedural due-process rights because nothing in
the measure prohibits government bodies from adopting notice
and hearing procedures to protect neighboring property owners
4 MacPherson v. Dep?t of Admin. Serv., No. 05-C10444 (Cir. Ct. Marion County,
Or. Oct. 14, 2005) available at http://www.ojd.state.or.us/mar/documents/Measure37
_000.pdf, reversed by MacPherson, 340 Or. at 117.
5 Measure 7 was an amendment to the Oregon Constitution, also passed by ballot
initiative, that was held unconstitutional by the Oregon Supreme Court in 2002. See
League of Oregon Cities v. State, 335 Or. 645, 649, 56 P.3d 892, 896 (2002).
6 MacPherson, 340 Or. at 128.
7 Id.  at 129-31.
8 Id. at 132.
9 Id.  at 136-37.
10 Id. at 137-38.
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 4 28-JUN-06 12:09
358 J. ENVTL. LAW AND LITIGATION [Vol. 20, 2005]
who may be affected by waivers of land-use regulations;11 and (2)
Measure 37 does not violate the substantive component of the
Fourteenth Amendment?s Due Process Clause because the mea-
sure does not implicate a ?fundamental right? and is reasonably
related to the legitimate policy objective of compensating land-
owners for regulation-induced decreases in their property val-
ues.12  In concluding, the court stated:
Whether Measure 37 as a policy choice is wise or foolish, far-
sighted or blind, is beyond this court?s purview.  Our only
function in any case involving a constitutional challenge to an
initiative measure is to ensure that the measure does not con-
travene any pertinent, applicable constitutional provisions.
Here, we conclude that no such provisions have been
contravened.13
We now know that we cannot look to the court to turn Mea-
sure 37 into a bad dream already passed.  Rather, the real work
starts now.  In the coming months and years, Measure 37?s nu-
ances and vagaries will be determined through litigation pursued
on a claim by claim basis, and local governments will be faced
with inventing new ways to regulate without tripping up against
the measure.  Land-use lawyers and planners will be essential
players in these decisions.  As such, we must take the lead in
guiding Oregon land use through the darkness and back into the
light.
We believe the following amicus brief, filed on behalf of the
MacPherson respondents, provides one of the most succinct and
complete public-policy arguments against Measure 37 issued to
date.  We reproduce the substance of that brief here in the hopes
that it will receive wider distribution, promote further discussion,
and discourage future proliferation of planning measures simi-
larly adverse to sound public policy, both in Oregon and across
the rest of the country.
I
INTRODUCTION
The Oregon Chapter of the American Planning Association
and its parent national organization, the American Planning As-
sociation, (collectively ?APA?), file this amicus brief in support
11 Id. at 139.
12 Id. at 140-41.
13 Id. at 141.
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 5 28-JUN-06 12:09
MacPherson v. Department of Administrative Services 359
of Respondents? position in this case, i.e., that Measure 37 is in-
valid.  APA?s statement of interest in filing this brief is found in
the accompanying motion.14  Because the Court and parties are
familiar with the facts and arguments, APA will not restate them
here, but will rely on Plaintiff/Respondents? Brief on these
matters.
In finding Measure 37 unconstitutional, the circuit court re-
viewed the eight grounds advanced by the Respondents in sup-
port of their claim. The circuit court concluded that the
Respondents prevailed on five of those eight grounds?namely,
that Measure 37 (1) undermined the plenary police power vested
in the legislature, (2) violated the privileges and immunities
clause of article I, section 20 of the Oregon Constitution, (3) vio-
lated the suspension of laws provision contained in article I, sec-
tion 22 of the Oregon Constitution, (4) violated the separation of
powers provisions of article III, section 1 of the Oregon Constitu-
tion, and (5) violated the procedural due-process guarantees of
the Fourteenth Amendment to the Federal Constitution.  Rather
than directly address these constitutional arguments, this brief
focuses on important planning policies that were furthered by the
land-use program in Oregon before Measure 37 was enacted. Im-
portantly, many of these planning concepts work to implement
the constitutional protections at issue in this case.
In addition, the brief describes the planning landscape in Ore-
gon after one year of processing claims and granting waivers pur-
suant to Measure 37 as well as the long-term impacts on public
infrastructure and other collateral damage resulting from issuing
waivers.  Finally, the brief will suggest that systemic reform is a
legislative process and should be approached in this manner.  For
the reasons set forth below, APA requests that the Court affirm
the decision of the circuit court.
II
LAND-USE PLANNING IN OREGON
BEFORE MEASURE 37
Thus the question whether the power exists to forbid the erec-
tion of a building of a particular kind or for a particular use,
like the question whether a particular thing is a nuisance, is to
be determined, not by an abstract consideration of the build-
ing or of the thing considered apart, but by considering it in
14 [Editor?s Note: The motion is not included with this reprinting.]
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 6 28-JUN-06 12:09
360 J. ENVTL. LAW AND LITIGATION [Vol. 20, 2005]
connection with the circumstances and the locality.  A nui-
sance may be merely a right thing in the wrong place, such as a
pig in the parlor instead of the barnyard.  If the validity of the
legislative classification for zoning purposes is fairly debatable,
the legislative judgment must be allowed to control.15
Land-use planning in the United States is premised on the idea
that unregulated growth, as opposed to coordinated growth to
achieve a community vision, is an evil to be avoided.  Land-use
planning in Oregon is grounded on the idea that the public at
large, as well as local communities, is best served by uniformly
grouping and regulating uses with similar infrastructure demands
and social impacts.  By locating land uses with similar nuisance
characteristics together, a community is able to protect its re-
sidents from incompatible and harmful uses.
The first efforts at regulating the private use of land in Oregon
occurred in the City of Portland in 1918.16  In 1925, these regula-
tions were challenged, and this Court first upheld the use of zon-
ing as a legitimate exercise of the police power:
The exercise of the police power is a matter of legislation and
the courts cannot interfere with such expressions of the power
unless it is shown that it is purely arbitrary or that the legisla-
tion has no connection with or bearing upon legitimate objects
sought to be attained. It is plain that governmental agencies
entrusted with the police power, as the City of Portland is, can
enact laws regulating the use of property for business pur-
poses. Otherwise it would be permissible to erect a powdermill
on the site of the Hotel Portland or to install a glue factory
next to the city hall or to erect a boiler-shop adjacent to the
First Congregational Church. Such things would be legitimate
but for the restraint of the police power. The difference be-
tween such instances and the present contention is in degree
and not in principle.17
Although an assertion that regulations protect the health,
safety, and welfare was sufficient to uphold a land-use decision in
early cases such as Kroner, this ?traditional? view of land-use
15 Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926) (internal cita-
tions omitted).
16 PORTLAND, OR. ORDINANCE  33911 (1918).  According to a City of Portland
Bureau of Planning publication dated December 1957 and entitled, The Portland
Planning Commission:  An Historical Overview, City Ordinance No. 34870 first es-
tablished the Portland Planning Commission in 1918. PORTLAND, OR. ORDINANCE
34870 (1918). The Planning Commission was established to make recommendations
on City growth.  After a failed citywide vote in November, 1920, the Portland Zon-
ing Code was first adopted in 1924, Cat. No. 3013.  No ordinance citation available.
17 Kroner v. City of Portland, 116 Or. 141, 151, 240 P. 536, 539 (1925).
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 7 28-JUN-06 12:09
MacPherson v. Department of Administrative Services 361
regulation was replaced by a more skeptical view in a series of
cases from the 1940s through 1969.  In those more skeptical court
cases, this Court struck down rezoning decisions finding that a
neighborhood had a ?right to rely? on existing land-use regula-
tions, and the regulations could only be changed if the local gov-
ernment could show a change in the community or a mistake in
the original zoning classification.18
The case that finally merged the traditional and skeptical views
of land-use regulation was Fasano v. Board of Commissioners of
Washington County in 1973.19 Fasano struck down a rezoning,
not on the grounds that it constituted ?spot zoning? or because
there existed a ?right to rely? on existing regulations, but rather
because of the manner in which the local government had made
the zoning decision and the public process it had followed.  The
legacy of Fasano requires local governments to make zoning de-
cisions that are consistent with their comprehensive plans, land-
use regulations, and enabling legislation. Fasano requires that a
public hearing be provided where parties are given an opportu-
nity to be heard, to present and rebut evidence, and to establish a
right to a record and findings adequate to show that the ultimate
decision is justified.20  By establishing a process for hearing and
deciding land-use cases, the court was able to review the record
against the decision and evaluate whether there was a legitimate
basis for making the decision.
In Oregon, zoning originally affected only cities, but in 1947
Oregon adopted enabling legislation that allowed counties to
provide for comprehensive planning and zoning regulations.21
Even before state law authorized planning and zoning of farm
lands, agriculture in Oregon had always been a legislative con-
cern.22  In 1961, the Legislature adopted an agricultural tax-as-
sessment deferral program whereby farmland zoned exclusively
18 Page v. City of Portland, 178 Or. 632, 165 P.2d 280 (1946); Smith v. County of
Washington, 241 Or. 380, 406 P.2d 545 (1965); Roseta v. County of Washington, 254
Or. 161, 458 P.2d 405 (1969).
19 264 Or. 574, 507 P.2d 23 (1973).
20 Id. at 587, 507 P.2d at 29-30. See also OR. REV. STAT. ?? 215.110(1), 215.055(1)
and 197.763 (2005).
21 Act of April 19, 1947, ch. 537 Or. Laws 948; Act of April 21, 1947, ch. 558 Or.
Laws 1029.
22 For example, ORS Chapter 610 established bounty laws, ORS Chapters 561.080
to 561.110 and ORS Chapters 566.210 to 566.260 established a system for agricul-
tural education, and ORS Chapter 567 maintained stations for the pursuit of agricul-
tural scientific activities.
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 8 28-JUN-06 12:09
362 J. ENVTL. LAW AND LITIGATION [Vol. 20, 2005]
for farm use and used for farm use can be taxed at its value for
farm use instead of its market value for non-farm uses.23  To im-
plement the farm-tax deferral system statewide, the Legislature
created the basic form of the ?exclusive farm use? (EFU) zone in
1963.24  To qualify for the special tax assessment, a farmer must
put the land to farm use.  Although the types of farm and non-
farm uses and structures allowed on EFU lands have changed
over time, the basic form of limiting non-farm structures and
dwellings has remained unchanged.
In 1973, the Oregon Legislature adopted Senate Bill 100, the
nation?s first comprehensive statewide land-use planning pro-
gram.  Senate Bill 100 now appears as Oregon Revised Statute
(ORS) chapter 197, which provides:
The Legislative Assembly finds that:
(1) Uncoordinated use of lands within this state threaten the
orderly development, the environment of this state and the
health, safety, order, convenience, prosperity and welfare of
the people of this state.25
Consistency in land-use decision making was achieved by cre-
ating an agency, the Land Conservation and Development Com-
mission (LCDC), charged with adopting goals and guidelines to
be used by local governments in preparing, amending, imple-
menting, and enforcing their comprehensive plans.26  To date,
LCDC has adopted nineteen statewide planning goals.27  Senate
Bill 100 required all cities and counties to adopt comprehensive
plans, which are reviewed by LCDC to ensure compliance with
each of the land-use goals.28
Goal 3 requires that local governments preserve farmland
based on uniform soil-quality standards.  Goal 4 requires the
conservation of forest lands based on suitability for commercial
forest uses.  Goal 5 requires that local governments inventory
natural resources, open spaces, and historic resources, and allows
the local government to decide whether to preserve a resource or
23 Ch. 695, 1961 Or. Laws.
24 Id.; Ch. 577, 1963 Or. Laws.
25 OR. REV. STAT. ? 197.005(1) (2005).
26 OR. REV. STAT. ? 197.225 (2005).
27 [Editor?s Note: These planning goals, OAR 660-015-0000(1)-(14); 660-015-0005;
660-015-0010(1)-(4), can be accessed at Oregon Dep?t of Land Conservation and
Dev., Statewide Planning Goals, available at http://www.lcd.state.or.us/LCD/goals.
shtml (last visited, Apr. 9, 2006).]
28 OR. REV. STAT. ? 197.175 (2005).
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 9 28-JUN-06 12:09
MacPherson v. Department of Administrative Services 363
allow conflicting uses.  Goal 10 requires that local governments
inventory the existing land base available for housing, project fu-
ture needs for residential lands, and then plan and zone ade-
quately to meet those needs. Goal 11 requires that local
governments determine how to efficiently provide public ser-
vices, such as sewer and water, to a community (as opposed to
responding haphazardly to development wherever it occurs).
Goals 16 through 19 require that coastal shorelands, dunes, and
estuary resources are preserved and protected.
Goal 9 requires that local governments make planning deci-
sions that encourage economic development by projecting future
business and industrial needs and providing an adequate supply
of land to meet those needs. Oregon has made tremendous in-
vestments in infrastructure (such as providing adequate marine,
air, and rail facilities) to serve specialized industries.  As a result
of Goal 9, industrial sanctuaries of varying sizes have been cre-
ated throughout the state that are insulated from price-conver-
sion pressures and other interfering uses, thereby protecting
much of the ?traded sector? employment base that, in turn, has
the greatest economic multiplier for a community.29  Further, by
providing certainty that industrial lands are available, Goal 9 aids
in recruiting and retaining business in Oregon.
Possibly the most important planning goal, and certainly one
that is central to the issues pending before this Court, is Goal 14.
Goal 14 requires that local governments adopt urban growth
boundaries (UGBs) providing land for urban-area growth and
separating urban uses from rural uses.  Local governments deter-
mine the size and location of UGBs by forecasting population
and employment growth for their city for a twenty-year planning
period, then translating that data into the amount and location of
land needed for housing, industry, and other urban uses.  The
purpose of Goal 14 is to ?accommodate urban population and
urban employment inside urban growth boundaries, to ensure ef-
ficient use of land, and to provide for livable communities.?30
All of these provisions work together to prevent the ?pig in the
parlor? and the ?glue factory next to city hall? scenarios.  They
also work to implement a shared vision for the future of a com-
munity. This is the measure of a quality land-use program.
These provisions ensure that land suitable for farming, ranching,
29 See OR. REV. STAT. ? 285A.010(9) (2005).
30 OR. ADMIN. R. 660-015-0000(14) (2006).
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 10 28-JUN-06 12:09
364 J. ENVTL. LAW AND LITIGATION [Vol. 20, 2005]
or forestry is preserved for that use, and that rural uses are sepa-
rated from urban ones.  They ensure an appropriate mix of hous-
ing and industrial uses.  They require that development be served
by adequate transportation, water, storm-water, and sewage in-
frastructure. They protect Oregon?s natural and coastal re-
sources.  They provide for a vibrant and diverse economy.  They
are the basis of sound planning, and dictate that land-use regula-
tions further the public welfare when balanced against the rights
of the individual.  They provide for citizen involvement in all
phases of the planning process.  They provide uniform land-use
procedures whereby affected parties are entitled to participate in
a hearing and in which decisions are based on written findings
that may be challenged on appeal.
Oregon?s land-use system has been a much admired national
model for controlling growth, maintaining livability, and protect-
ing farm land.  Oregon?s statewide planning program received
the Outstanding Planning Award from the American Planning
Association for its accomplishments, which include protecting
over 15 million acres of farmland.  The planning program has
also received national recognition, including the 2000 Smart
Growth ? Sustainability Award from the American Planning As-
sociation, the 1999 Planning Landmark Award from the Ameri-
can Planning Association, the 1999 Ahwahnee Award of Honor
from the Local Government Commission?s Center for Livable
Communities, the 1997 Livable City Center Award from Livable
Oregon, Inc., the 1988 and 1989 State of the States Growth and
Environment Awards from Renew America,31 as well as support
from the American Institute of Architects and the American So-
ciety of Landscape Architects.  Thanks in large part to the plan-
ning program, Oregon communities are consistently recognized
on national ?best of? lists for livability; e.g., Portland was named
one of the top ten ?New American Dream Towns? by Outside
Magazine in August 2005, and was recognized as the ?Best Big
City in the U.S.? by Money Magazine.32
With that background, we now turn to how Measure 37 has
impacted this rich tradition of community planning in Oregon.
31 See Oregon Dep?t of Land Conservation and Dev., supra note 3.
32 [Editor?s Note: See  Mike Grudowski, The New American Dream Towns: Port-
land, Oregon, OUTSIDE MAGAZINE, Aug. 2005 available at http://outside.away.com/
outside/destinations/200508/best-american-towns-7.html (last visited Apr. 9, 2006);
MONEY MAGAZINE (Dec. 2000).]
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 11 28-JUN-06 12:09
MacPherson v. Department of Administrative Services 365
III
HOW MEASURE 37 HAS AFFECTED LAND
USE PLANNING IN OREGON:
THE ANTI-PLANNING PRINCIPLE
A. The Facts
Measure 37 has been in place for one year.  As of the date the
trial court found Measure 37 unconstitutional, the State of Ore-
gon had received 1255 claims?1065 of which were directed to
the Department of Land Conservation and Development
(DLCD), the department charged with implementing LCDC?s
adopted goals and administrative rules.  Of these claims, DLCD
has issued 373 Final Orders.33  About 90% of the final orders
granted the requested relief in whole or in part?i.e., a waiver of
the applicable state land-use regulations?and about 10% re-
sulted in denials.  The total amount claimed in public funds thus
far under this measure totals over $2.2 billion; however, no
?compensation? (in reality, requests for payments from public
funds) has been granted because the measure failed to provide a
funding source and the State is unable to pay claimants.  It is
estimated that the 1065 claims encompass over 66,000 acres of
land, with over 75% of that land designated for exclusive farm
use.34
A review of the Measure 37 claims to date finds that some seek
approval for commercial uses incompatible with typical adjacent
uses outside UGBs, such as farm, forest, or rural residential uses.
Still other claimants seek aggregate mining uses, or expansion of
such uses, or other industrial-type uses on resource-zoned land.35
An overwhelming majority of these claims have come from west-
ern Oregon, with 65% of the claims coming from the Willamette
Valley?including Clackamas, Multnomah, Washington and
Yamhill Counties.  These Willamette Valley counties contain the
highest value farmland.36
33 App. A. Appendix A contains a Preliminary Draft Analysis of Measure 37
Claims Based on Unverified Data Submitted by Claimants compiled by Ron Eber,
Farm and Forest Lands Specialist, from DLCD.  This Court may take judicial notice
of these facts pursuant to OEC 201(b) because the facts were compiled by DLCD,
the agency charged with reviewing and issuing waivers pursuant to Measure 37, and
their accuracy may be confirmed by consulting the DLCD website at http://www.lcd.
state.or.us/LCD/measure37.shtm1#Final_Staff_Reports_and_Final_Orders.
34 App. A.
35 See id.
36 See OR. REV. STAT. ? 215.710 (2005).
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 12 28-JUN-06 12:09
366 J. ENVTL. LAW AND LITIGATION [Vol. 20, 2005]
Contrary to the campaign promoting the passage of Measure
37, which highlighted elderly landowners unable to build a single-
family house on their property for the benefit of family members,
only 13% (134) of the 1065 claimants are seeking to build a sin-
gle-family house on their land.  By contrast, 86% of the claimants
(919 claims) have requested land divisions?either subdivisions
or partitions?and wish to site multiple dwellings, almost all on
farm or forest land outside UGBs.  The average yearly number of
dwellings approved on EFU-zoned lands statewide between 1994
and 2003, before the adoption of Measure 37, was 683 per year.
Although not a direct comparison, because a single Measure 37
waiver could allow more than one dwelling on EFU-zoned land,
nearly twice as many development authorizations have been
granted in ten months since the adoption of Measure 37.37  These
facts reveal that, despite the campaign?s focus on regular folks
unable to realize modest plans for their property, the real result
of Measure 37 is a windfall for a select few land owners wishing
to build large developments at the expense of surrounding
communities.
B. How ?Swiss Cheese Development?
Impacts Sound Planning
As the map attached in Appendix B38 illustrates, most of the
Measure 37 claims filed are outside of, but in the vicinity of, the
existing Portland Metropolitan UGB.  Measure 37 completely
undermines the ability of UGBs to perform the very objective for
which they were created?to separate urban and rural uses, to
accommodate urban population and urban employment inside
UGBs, to ensure efficient use of land, and to provide for livable
communities.
It will be difficult for any community to effectively plan and
provide transportation and other services to areas where some
lands have already been developed pursuant to Measure 37
claims because there will be no uniformity among developments
in these areas. Granting waivers creates a form of non-con-
forming use.  This task is made even more difficult because Mea-
sure 37 does not set a limit on when claimants must act on their
37 App. A.
38 The map attached in Appendix B locates Measure 37 claims in the state.  It was
created by DLCD and this Court may take judicial notice of it pursuant to OEC
201(b).
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 13 28-JUN-06 12:09
MacPherson v. Department of Administrative Services 367
claims or even require disclosure of how they intend to use their
property pursuant to such claims.  For example, a claimant could
receive a waiver and wait fifty years before acting pursuant to
that authorization.  By not setting any limitation as to when a
claimant must develop pursuant to a claim, local governments
will be forced to expend additional resources indefinitely track-
ing historical subdivisions or other land-use approvals granted
through the Measure 37 process.  Similarly, a claimant need not
bring all claims at once.  Measure 37 does not impose any limita-
tion on how many times a claimant may return to seek additional
compensation for existing regulations or regulations that may be
imposed in the future.
Since only 13% of the Measure 37 claims submitted to date
seek approval for a single house on farm or forest lands, it is
apparent that a majority of Measure 37 applicants seek to de-
velop medium to large-scale subdivisions, and the vast majority
of these are in farm or forest areas outside UGBs.  Because no
urban planning has been done for the subdivisions sought by
these rural-area claimants, the development of these subdivisions
will almost certainly have a huge impact on public infrastructure
services. Existing transportation, storm-water, and septic sys-
tems cannot be adequately planned and will likely not be ade-
quate to serve the development allowed under these claims, as
Measure 37 does not require that development be conditioned
on having adequate infrastructure in place (or even planned)
before being built.
The map in Appendix B aptly illustrates that the impact of
Measure 37 is not generalized.  Most of the claims come from the
Willamette Valley and from near the existing UGBs.  These are
not cases in which claimants find it difficult, due to soil quality, to
meet the farm-income standard necessary to locate a dwelling?
as might be the case for claimants in eastern or southern Oregon
where soil quality may not be as high.  The location of the claims
suggests that it is not planning principles, or even concerns about
property rights, that guide these claimants, but rather the wind-
fall they will realize by taking advantage of their proximity to the
urban population if they are able to develop just outside the
UGB.
Measure 37 is indeed the antithesis of good planning principles
supported by the well accepted Euclid and Kroner cases.  Mea-
sure 37 not only encourages incompatible uses between those
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 14 28-JUN-06 12:09
368 J. ENVTL. LAW AND LITIGATION [Vol. 20, 2005]
who have valid claims and those who do not, it provides no op-
portunity to ensure compatibility requirements for adjacent
property owners.  Thus, a claimant on property A could operate
an aggregate mine.  An adjacent claimant on property B could
develop and sublease a commercial strip mall.  Meanwhile, the
owner of property C, who purchased his land subsequent to the
statewide planning goals adopted in 1974, is prohibited all uses
except farming.  Unfortunately, farming property C may well be
impractical or impossible because of the incompatible uses on
properties  A and B.  There is no legitimate planning principle
served by allowing the owners of properties A and B to develop
regardless of the impact on surrounding properties.  The measure
further exacerbates bad planning because it causes a domino ef-
fect?in the above example, once A takes advantage of regula-
tion-free development, B?who may have been eligible but
preferred not to file a claim?may be compelled to file in order
to cut losses and sell to the highest bidder before the aggregate
mine goes in next door.  This leaves C on devalued property,
without recourse and surrounded by incompatible and inappro-
priate land uses.
By contrast, the exception process established under Goal 2
provides an effective relief valve for a property owner with justi-
fiable circumstances if one of the statewide planning goals cannot
be met.  However, even this process now will be distorted be-
cause of the effects of Measure 37.  One of these exceptions, the
?committed exception,? allows development on land that would
otherwise be zoned for a resource use (e.g., farming or forestry)
when that land is ?irrevocably committed? to a non-resource
use.39  Thus, where successful Measure 37 claimants have com-
mitted their lands to non-resource use, neighboring landowners
can also claim a right to develop under the committed exception,
with the effect of increasing the amount of land eligible for devel-
opment pursuant to the committed-lands exception process.  All
of these examples illustrate that there is no rational connection
between land use and ownership dates.
C. The Vagaries of Determining Reduction in Value
A valid Measure 37 claim requires a demonstration that the
land-use regulation at issue has the effect of reducing the fair
39 OR. ADMIN. R. 660-004-0020 (2006).
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 15 28-JUN-06 12:09
MacPherson v. Department of Administrative Services 369
market value of the property.  But whether a regulation or a se-
ries of regulations has changed the value of a particular property
should not be determined in a vacuum.  A fair computation of
the reduction in fair market value would compare the value of
the subject property before and after application or enactment of
all of the regulations to all properties similarly situated.  Put dif-
ferently, a fairly calculated reduction in fair market value caused
by a land-use regulation should not equal the increase in value
that results if the subject property alone is exempted from regu-
lation while the surrounding properties continue to be regulated.
It might be the reason that your hundred-acre farm on a pris-
tine hillside is worth millions to a developer is that it?s on a
pristine hillside: if everyone on that hillside could subdivide,
and sell out to Target and Wal-Mart, then nobody?s plot would
be worth millions anymore.40
The calculation required by Measure 37 to determine the value
of ?just compensation? is not based on actual loss (if any) from
the enactment of the land-use regulation, but rather the value of
the subject property in isolation today, as if it were exempt from
certain land-use regulations and no other property was similarly
exempt.  This monopoly effectively grants Measure 37 claimants
a windfall.
Consider the following hypothetical.  In 1950, Smith purchases
a 100-acre orchard.  In 1975, the land and surrounding properties
are zoned EFU under Goal 3 of the statewide land-use planning
goals.  If Smith could build a 100-lot subdivision in 2005, he could
sell the parcel for $5 million.  If we assume that the current value
of the property as an orchard is $1 million, how much did Smith
lose?  $4 million?  No.  While $4 million is the amount a ?just
compensation? claim under Measure 37 would yield, that $4 mil-
lion really represents the value of an individual exemption from
the regulation.  This is because the $4 million figure assumes all
other surrounding property owners must continue to abide by
the regulation.  As the result of the application of the EFU zon-
ing to neighboring properties, the supply of developable land
continues to be constrained, increasing the price of unregulated
or developable land.41  In this hypothetical, the EFU regulation
40 Malcolm Gladwell, The Vanishing, THE NEW YORKER, Jan. 3, 2005, at 72.
41 Numerous other factors, including population growth and public infrastructure
investments, may also have affected property values.  Indeed, the amenities created
by a comprehensive planning scheme may be responsible for some portion of the
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 16 28-JUN-06 12:09
370 J. ENVTL. LAW AND LITIGATION [Vol. 20, 2005]
also may have increased the property?s development value by
protecting amenities such as the pastoral setting.42  Therefore,
the value of a property today as if it were unregulated is not an
indicator of the actual loss in value caused by the enactment and
application of a regulation,43 but rather reflects windfall benefits
to Measure 37 claimants that far exceed any actual reduction in
fair market value.
In short, the extent of the retroactivity and the monopoly ef-
fect of Measure 37 combine to grant property owners an unde-
served and erroneously calculated windfall.  Under Measure 37,
claimants are not paid what they have lost (if anything) from the
enactment of a land-use regulation; instead claimants receive an
amount that reflects an exemption from land-use regulations
granted to them alone, assuming that land-use regulations con-
tinue to apply to surrounding properties.
The circuit court correctly concluded that the remedy for an
otherwise-eligible Measure 37 claim that can show a loss of prop-
erty value is disproportionate to the stated purpose of Measure
37 to provide for ?just compensation.?  For example, there is no
requirement for a ?present value? calculation to properly judge
the value in today?s dollars versus the ?just compensation? owed
the owner of property that may date to, say, 1952 when the land-
use regulation was first enacted.
Furthermore, the State of Oregon has foregone a great deal of
potential revenue through the farm and forest tax-deferral pro-
gram in recognition of the limitations on the uses of rural land.44
Measure 37 does not require reimbursement of past-deferred
taxes or use of this benefit to offset the alleged loss of value re-
sulting from the land-use regulations. The total amount of
population growth.  Further, if the supply of unregulated or developable land were
to increase, one would assume that the value of properties would decline.  If the
market currently has a demand for ten such subdivisions, and Smith?s property is the
only one available, it might be worth a premium.  But if 100 properties are available,
the value would be just enough to get ten property owners to sell.  Furthermore, if
Smith?s property is not one of the properties selected by the developers (e.g., be-
cause there is no demand), then it may well be argued that the regulation had no
impact on Smith?s property value.
42 Likewise, in a residential zone, the residential setting unmarred by convenience
stores or garbage dumps would be protected.
43 Nor does that value reflect the opportunity cost or interest due.
44 OR. REV. STAT. ? 215.243(4) (2005). See generally Edward J. Sullivan, The
Greening of the Taxpayer: The Relationship of Farm Zone Taxation in Oregon to
Land Use,  9 WILLAMETTE L. REV. 1 (1973).
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 17 28-JUN-06 12:09
MacPherson v. Department of Administrative Services 371
money that has remained in farmers? pockets as a result of what
Appellants characterize as an onerous and overly regulatory
land-use system totals $5.4 billion in property tax relief.45  Thus,
owners of farm or forest land are compensated each year for the
regulations that restrict their property through the deferral of
taxes that would otherwise be due.
D. Impacts on the Planning Process
The likelihood of error by local planners or other government
officials is significantly increased as a result of Measure 37 be-
cause of the number and effect of potentially applicable regula-
tions.  A valid Measure 37 claim requires a showing that the
property was owned before the applicable regulations took ef-
fect.  To support such inquiries, a local government must com-
pile, maintain, and make available a database of all of its land-
use regulations and amendments thereto.  Rather than applying
the plan and regulations uniformly to each property, a planner or
other government official is required to analyze, and in many
cases guess, about whether applying or implementing a regula-
tion will give rise to a potential claim.  Land-use planning means
little if planning staff is unable to provide the public with reliable
and credible information about which regulations apply.  This
credibility is undermined by Measure 37.
Moreover, requiring local planners to determine when a per-
son became the ?present owner? of property effectively requires
them to develop a working knowledge of real-estate and estate-
planning law.  An interest in property can be created by a large
number of real-estate and estate-planning documents, such as co-
tenancy arrangements or trusts, all of which must be evaluated by
the planning staff to determine when the claimant became the
legal owner of the property.  The likelihood of error is high, and
the credibility of planning staff and the planning program are fur-
ther undermined.
It is possible that the enduring damage to Oregon?s land use
program, however, will not be the individual claims that may be
brought, the money that could be paid, or even the exemptions
that might be granted.  Rather, the longer-lasting damage lies in
the unwillingness of state or local governments to amend their
plans in order to respond to new and changing conditions, since
45 No Double Tax, REGISTER-GUARD, Nov. 9, 2004.
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 18 28-JUN-06 12:09
372 J. ENVTL. LAW AND LITIGATION [Vol. 20, 2005]
adopting new regulations would likely be the source of future
Measure 37 claims.  If local governments are unwilling to periodi-
cally review their plans, including inventories of housing, com-
mercial, and industrial lands, planning sclerosis will set in.  Local
plans and regulations will become effectively ?frozen? and, over
time, of no use in guiding development consistent with a commu-
nity?s vision.  Ultimately, what was once a land-use system wor-
thy of emulation will become a detriment to the citizens of the
state.
E. Impacts to Neighbors and the Community.
Goal 1 calls for citizen involvement in all ?phases of the plan-
ning process.?  Measure 37 does not contain any requirement
that a local government provide notice of potential claims to af-
fected parties; nor does it require any public hearing before a
waiver is granted.  A local government may issue a waiver with-
out making any written findings supporting the decision or creat-
ing a record showing that the claimant qualifies for relief.
Further, Measure 37 does not provide for, require, or allow the
local government to consider how granting a waiver might di-
rectly harm a neighboring property owner or the greater commu-
nity.  This approach is not only contrary to the procedural due-
process guarantees of the Fourteenth Amendment of the U.S.
Constitution, it is contrary to the quasi-judicial hearing require-
ments set out in ORS 197?such as notice, a hearing, and find-
ings supporting a decision?that this Court held essential when
local governments make quasi-judicial land-use decisions.  This is
contrary to the holding of the Fasano decision, which is based on
due-process principles.46
Measure 37 is the antithesis of the sound planning principles
that underpin Oregon?s existing land-use system.  Measure 37
prioritizes the individual?s right to a particular return on private
property over the public good.  It undermines a local govern-
ment?s ability to plan for its future development and growth.  It
sacrifices valuable resource lands.  It fails to require an open
public participation process.  Generally, when two statutes are in
conflict, a court must, whenever possible, construe them together
46 See also Mallatt v. Luihn, 206 Or. 678, 294 P.2d 871 (1956); West v. City of
Astoria, 18 Or. App. 212, 524 P.2d 1216 (1974) (due process requirements are usu-
ally held to be satisfied if a hearing is given either by the agency or by the reviewing
court at any time before the governmental action becomes final).
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 19 28-JUN-06 12:09
MacPherson v. Department of Administrative Services 373
and in such a manner as to be consistent, rather than in conflict,
thus giving effect to both statutes.47  Measure 37 takes an eighty-
one-year history of zoning and planning in Oregon, including the
most recent thirty-year period under the statewide planning sys-
tem established in 1973, and turns it on its head.  As it is cur-
rently enacted, Measure 37 and the existing Oregon land-use
system are inherently incompatible, and no change in meaning or
application can make them compatible.
IV
REFORMING THE PLANNING PROCESS
Because Measure 37 is incompatible with the existing Oregon
land-use system, the measure is an inappropriate means of reme-
dying any of its perceived problems.  As our society becomes
more populous, with more people living relatively close together,
land-use regulations are essential, not only to provide predict-
ability and stabilize property values, but also to plan for future
growth and to prevent incompatible land uses.48  Such regula-
tions are a civilizing agreement amongst citizens that allow us to
live in harmony.  Measure 37?s patchwork approach of address-
ing individual grievances regardless of the impact on the commu-
nity is at odds with this civil contract and is certain to leave
aggrieved neighbors in its wake.  The measure does not reform or
improve the planning system; it completely sidesteps it, failing to
negotiate the tension between private property and regulation
for the public good.
As has been illustrated, Measure 37 creates a new class of win-
ners and losers based on the accident of ownership that cannot
be found in any primer on planning principles and that is not
grounded in Oregon land-use law. Likewise, the idea that a
property owner should be allowed to develop property without
regard to the laws that his neighbors must obey, and regardless of
the effects on his neighbors and neighboring properties, is a radi-
cal departure from the system now in place in which neighbors
47 OR. REV. STAT. ? 174.010 (2005); Sanders v. Or. Pac. State Ins. Co., 314 Or.
521, 527, 840 P.2d 87, 90 (1992); McLain v. Lafferty, 257 Or. 553, 558, 480 P.2d 430,
432 (1971).
48 Oregon?s population is expected to increase by 1.5 million by 2030. See Office
of Econ. Analysis Demographic Forecast, State and County Population Forecasts and
Components of Change, 2000 to 2040, http://www.oea.das.state.or.us/DAS/OEA/
demographic.shtml#Short_term_State_Forecast (last visited Apr. 9, 2006).
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 20 28-JUN-06 12:09
374 J. ENVTL. LAW AND LITIGATION [Vol. 20, 2005]
are entitled to notice and allowed to voice their concerns.  The
economic benefit to this new class is disproportionate to the pur-
ported remedy offered by Measure 37.
By contrast, Senate Bill 8249 (also known as the ?Big Look?),
enacted during the most recent legislative session, is the appro-
priate mechanism to address any inadequacies and propose any
necessary reforms to the land-use planning system.  In passing
Senate Bill 82, the Legislature recognized the inherent conflicts
between private property and the need for land-use regulations
and appropriately acted to support a (re)evaluation of the land-
use program that would strike a balance between the two.
Senate Bill 82, also known as the ?Big Look,? created a ten-
member task force, knowledgeable about the land-use system
and the economic context within which it operates, to compre-
hensively examine the statewide planning system and evaluate
reforms to it.  Specifically, the task force will study and make rec-
ommendations concerning (1) the effectiveness of the land-use
planning system in meeting the current and future needs of all
Oregonians, (2) the roles and responsibilities of state and local
governments in land-use planning, and (3) land-use issues spe-
cific to properties inside and outside of UGBs and the interface
between those properties.  In keeping with the existing land-use
system, Senate Bill 82, unlike Measure 37, provides for signifi-
cant citizen involvement, requiring public meetings and citizen
surveys.  The task force is charged with generating a preliminary,
progress, and final report detailing its findings and recommenda-
tions over the next two biennia.
The review process under Senate Bill 82 presents an opportu-
nity for creating a renewed vision for Oregon?s future physical-
development patterns that directly incorporates economic, envi-
ronmental, and community perspectives.  It has the opportunity
to make the land-use planning process even more responsive to
the needs of Oregon?s citizens, and to identify ways in which the
geographic, environmental, and economic needs of the state?s va-
rious regions should be differentiated.  Moreover, it will be ac-
complished by extensive local, regional, and statewide
conversations and outreach to identify Oregonians? common val-
ues and determine how best to preserve and implement them.
This review process is consistent with a study conducted five
49 Act of Aug. 9, 2005, ch. 703, 2005 Or. Laws.
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 21 28-JUN-06 12:09
MacPherson v. Department of Administrative Services 375
years ago by a committee of the Oregon Chapter of the Ameri-
can Planning Association (the ?COPE Report?) which found a
significant majority of Oregonians support land-use planning.50
The findings of the COPE Report were recently confirmed by a
study conducted by CFM Research for the Oregon Business As-
sociation and the Institute of Metropolitan Studies at Portland
State University?s Nohad A. Toulan School of Urban Studies and
Planning.  The study, completed earlier this year, found that 64%
of Oregonians want to protect farmland for farming, 61% want
to protect the environment, and 58% want to protect wildlife
habitat.  Furthermore, 70% tied growth management to livability
and want land-use decisions based on planning rather than mar-
ket-based decisions.
Finally, while signing Senate Bill 82 into law, Governor
Kulongoski stated, ?I am a proponent of our state land use sys-
tem.  I believe the values and goals that were established in 1973
remain the same in 2005. . . . [I]t is time to reconnect all Oregoni-
ans to their land use system.?51  If Measure 37 is found valid,
Oregonians, the majority of whom support land-use planning,
will never have that opportunity.  Measure 37 not only threatens
to eviscerate Oregon?s land-use planning system, it also effec-
tively renders Senate Bill 82 moot, as there will be no meaningful
way to evaluate and develop a strategic plan for future growth or
implement land-use regulations alongside Measure 37.  By plan-
ning through an established and public legislative process such as
Senate Bill 82 contemplates, communities are able to express
their visions for themselves.  Democracy and the public trust are
ill-served by allowing land-use decisions based on ownership
rather than public policy.
Measure 37 is not only unfair to existing property owners who
are ineligible to make a claim, it is unfair to the future genera-
tions who do not yet own property but for whom we are planning
50 [Editor?s Note: The November 2001 report, An Evaluation of Planning in Ore-
gon, 1973-2001, was submitted to the Oregon Chapter of the American Planning
Association by the Committee on the Oregon Planning Experience (COPE).  It is
available at http://www.wou.edu/~khes/geog425/cope.pdf#search='Oregon%20
Chapter%20of%20the%20American%20Planning%20Association%20and%20An
%20Evaluation%20of%20Planning%20In%20Oregon,%2019732001' (last visited
Apr. 12, 2006).]
51 [Editor?s Note: See Oregon Dep?t of Land Conservation and Dev., Governor
Kulongoski?s Speech on Senate Bill 82, available at http://www.lcd.state.or.us/LCD/
30_year_review.shtml#Governor_Kulongoski_s_Speech_on_Senate_Bill_82 (last vis-
ited Apr. 9, 2006) (emphasis in original).]
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 22 28-JUN-06 12:09
376 J. ENVTL. LAW AND LITIGATION [Vol. 20, 2005]
the future.  Measure 37 is about immediate gratification at the
expense of neighbors and future residents of Oregon, many of
whom are not yet born.
V
CONCLUSION
In the Euclid and Kroner decisions quoted at the outset of this
brief, the Oregon Supreme Court and U.S. Supreme Court noted
that a zoning scheme is valid if its purpose is fairly debatable and
not purely arbitrary.  Oregon?s current system of zoning land
based on its suitability for the particular uses chosen by the com-
munity outlines a rational system based on legitimate objectives.
Under the Senate Bill 100 land-use scheme, there is a rational
connection between the land and the uses allowed on the land.
For example, if property is suitable for farming, it cannot be used
for shopping malls; if it is suitable for timber production, it can-
not be used for tract homes.  Measure 37, by contrast, establishes
an irrational system based solely on timing of ownership.  The
uses allowed on a particular parcel are entirely random, with all
benefits and rights running to the claimant rather than the public.
The public is left to suffer without the benefit of consistent appli-
cation of land-use regulations and without protection from the
direct impacts of waivers.
For the reasons set forth above, policy and law dictate that the
circuit court?s decision holding Measure 37 unconstitutional be
affirmed.
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 23 28-JUN-06 12:09
MacPherson v. Department of Administrative Services 377
APPENDIX A
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 24 28-JUN-06 12:09
378 J. ENVTL. LAW AND LITIGATION [Vol. 20, 2005]
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 25 28-JUN-06 12:09
MacPherson v. Department of Administrative Services 379
Appendix B
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 26 28-JUN-06 12:09
380 J. ENVTL. LAW AND LITIGATION [Vol. 20, 2005]
STATE OF OREGON MEASURE 37 CLAIMS FILED WITH THE STATE
APPENDIX B
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 27 28-JUN-06 12:09
MacPherson v. Department of Administrative Services 381
STATE OF OREGON MEASURE 37 CLAIMS FILED WITH THE STATE
APPENDIX B
\\server05\productn\O\OEL\20-2\OEL206.txt unknown Seq: 28 28-JUN-06 12:09