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A trial-level judge in Oregon recently declared unconstitutional a property rights measure overwhelmingly approved by voters last year, triggering a move to oust the judge. The ruling by Marion County Circuit Judge Mary Mertens James throws the state’s zoning laws into a cauldron, because there’s confusion as to whether the entire state or only a few counties are affected by the ruling. Measure 37, which garnered 61% of the vote in November 2004, declares that any government entity that enacts or enforces land-use regulations that restrict use of private real property must pay the owners the reduction in fair market value, or forgo enforcement if the regulations were enacted after a family acquired the property. James found that the measure failed to pass both Oregon and U.S. constitutional muster because, among other things, it impermissibly intruded on the legislature’s power to protect public health, welfare and safety, including zoning regulation. MacPherson v. Department of Administrative Services, No. 05C10444 (Marion Co., Ore., Cir. Ct.). The 16 plaintiffs include farmers, nurseries and 1000 Friends of Oregon, a land-use planning nonprofit organization. Their attorney, Portland, Ore., solo practitioner Todd Baran, brought the original action in Marion County, which includes Salem, the state capital, because an Oregon statute requires that actions challenging the constitutionality of a state measure be brought there. “Of course, the ruling’s effect is statewide,” he said. Not necessarily, said Kevin Neely, spokesman for Oregon Attorney General Hardy Myers. “This is the first time that an initiative permits independent action by the counties,” he said. In the wake of the ruling, the state attorney general requested that the Oregon Supreme Court issue an emergency stay. The state said that the judge’s ruling most likely affected only the four counties that were defendants-not the state’s remaining 32 counties. Last week, the stay was denied. Since passage of Measure 37, counties and the state have given landowners hundreds of waivers that allow some to subdivide rural land to build housing. “There’s [now] a possibility of lawsuits on a county-by-county basis,” he said. Leading the recall effort is the Constitution Party of Oregon, whose aim is to restore American jurisprudence to its “original Biblical common law foundations.” Camby Collier, a spokesman for the Constitution Party, was not available for comment. James declined comment.

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