Measure 49 not threatened by Corey case

There’s some wishful thinking going on in the little minds over at Oregonians in Action, who hope that Santa will bring them a Measure 49 demolishing (or at least, limiting) court case.

Corey v. Department of Land Conservation and Development is a current favorite, grandiosely (and inaccurately) described in the most recent OIA newsletter under “Is There Hope on the Horizon for Measure 37 Claimants?”

Short answer: almost certainly not. I say this not as an attorney, but as someone who knows how competent attorneys view the Corey case.

Which is a long way from how OIA sees a ruling by the Oregon Court of Appeals that’s been appealed to the State Supreme Court. OIA says:

If the Court of Appeals’ decision in Corey stands, then Measure 37 claimants cannot lose their rights, because those rights are protected by the constitution. Which would in turn mean that decisions made pursuant to Measure 37 would remain unaffected by Measure 49’s passage.

Contrast this wildly exaggerated statement with how an Oregon business litigation blog described the Corey decision.

After reviewing U.S. Supreme Court precedent on constitutionally-protected interests, the court concluded that the DLCD created an entitlement to benefits when it accepted the Measure 37 claim, and that Corey was entitled to notice and a meaningful hearing before DLCD could refuse to waive any of the regulations. Accordingly, the Court of Appeals had jurisdiction to review the matter as a contested case.

So the court simply ruled that DLCD had to go through a particular process before determining the extent of what Corey, et. al. were entitled to under Measure 37. DLCD didn’t grant a hearing; the court said DLCD should have.

All this has nothing, or at most, very little, to do with whether Measure 49 is null and void because it takes away supposed Measure 37 property rights.

It’s well established that government and the people can put into effect and modify land use laws. That’s what Measure 37 did. That’s what Measure 49 did. The Corey case doesn’t alter that fact.

As long as I’m writing about Measure 37, I might as well take this opportunity to trash a 95 year old woman who proves that you’re never too old to act like a jerk.

Yes, Dorothy English is back in the news. She was the poster child for Measure 37 back in 2004, and she’s still throwing a fuss over how she isn’t able to do exactly what she wants with her 20 acres.

English has gotten permission under Measure 37 to put eight home sites on her property, which is what she wanted. And Measure 49 still will allow her those sites. All she has to do is prove the loss of value that she’s claimed all along.

But English also wants to be exempted from current building standards, including health and safety requirements involving emergency vehicle access and other issues. What a baby. It’s all about me, me, me, regardless of the effect on neighbors and the general public.

Over at his Land Use Watch blog, Peter Bray had a great response to English’s ridiculous expectation that she should be able to do whatever was allowed in 1953:

In 1953, my relatives could have developed an open-pit cyanide leach mine on farmland. But, like in the case of Madam English, various commonsense regulations now forbid such activity, or require that certain basic safety precautions are followed.

In 1953, I could drink a six pack of beer, drive without a seat belt to the local movies with my newborn in the driver’s seat (with no baby seat), smoke a few cigarettes (with the windows up), go eat at a restaurant for a couple of hours (leaving the baby in the car), and come back, after some more booze, and drive on home. Nowadays, darnit, I can’t! And that ain’t fair!

In 1953, relatives owned stock in Asbestos mining companies. A bunch of hooey regulations passed subsequently piping on and on about “health hazards” of asbestos. So the stock dropped. But, shoot, they bought that stock before any of these crazy government regulations, so shouldn’t the government have to compensate us for their restrictive regulations?!