In Corey v. Department of Land Conservation and Development, the Oregon Supreme Court on May 8, 2008, ruled that Measure 49, which voters passed in November 2007, extinguished landowners’ rights under Measure 37 except to the extent that a landowner had completed enough of the development approved under Measure 37 to have obtained a common law vested right to complete the development.
In the Corey case, the Supreme Court had originally planned to decide whether the Court of Appeals or the circuit court was the proper court for a landowner to challenge a decision by the state to deny part of a landowner’s claim under Measure 37. After voters passed Measure 49, however, the state asked the Supreme Court to dismiss the Corey case, arguing that Measure 49 had replaced all of the landowners’ rights under Measure 37 with the lesser rights available under Measure 49. For the most part, the Supreme Court agreed.
The Supreme Court’s ruling means that the only landowners who may continue to develop property under Measure 37 are the landowners who completed enough of the permitted development to require the government to allow the landowners to complete the development. A landowner who has not started to develop property under a Measure 37 waiver retains no rights under Measure 37.
The Supreme Court’s opinion leaves important questions open for later decisions by the courts. First, the Supreme Court did not discuss how much development a landowner must have completed to permit the landowner to complete a development.
Second, the Supreme Court chose not decide whether the constitution permitted voters to extinguish rights granted by Measure 37. Whether, for example, Measure 49 improperly takes property without just compensation must be decided in another case.
Third, the Supreme Court did not explain whether landowners to whom courts had awarded monetary compensation (as opposed to waivers of land use laws) keep those awards after the passage of Measure 49.
A landowners who filed an application with the state under Measure 37 should consult with the landowner’s legal advisor to determine whether the landowner should (1) apply for permission to divide property into home sites under Measure 49; (2) challenge the loss of Measure 37 rights; or, (3) where the landowner has begun development, apply for permission to complete the development.
