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E-M:/ The end of environmental protection in Oregon and ??



The environment in Oregon is SO screwed -- probably Michigan to follow:
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Property Rights Initiative Intact in Oregon; Compensation for Diminishing Property Value: After failing previously in Oregon and a few other states, property rights activists have finally succeeded. Oregon's highest court upheld "Measure 37," a citizen initiative that allows a limited class of property owners to demand waiver of land use regulations enacted during ownership that reduce property value. The government can opt to pay compensation. (Thanks!) The court held, among other things, that requiring government to pay to enforce its land use regulations does not limit the legislature's plenary power. There is a rational basis to require payment for lost property value, thus there is no substantive due process violation. Limiting the claims to those who acquire their property prior to enactment of the offending regulations does not violate equal protection. The measure allows for implementing laws, thus plaintiffs (in this facial challenge) can not show that granting a waiver to the detriment of plaintiffs' own interests denies them due process in the form of a pre-deprivation remedy. click here

Government lawyers in Oregon must now turn to assorted practical and process issues. Is land division a land use regulation? Does the measure's exception for federal law include zoning restrictions that implement NPDES permits? Is a waiver assignable to other owners (developers)? Is a use allowed under a waiver a non-conforming use, thus limiting the prospects for development financing? The measure allows claimants to file a trial court action and seek attorney fees if the claim is not paid or the regulation waived within 180 days: Does failure to comply with an implementing ordinance (which has been the rule to date, not the exception) make for a defense of failure to exhaust administrative remedies? More to follow.