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In Oregon, Posthumous Court Victory for Measure 37 "Poster Child"

Leonard Gilroy
April 30, 2009, 8:06am

Dorothy English, the late Oregon widow whose fight against regulatory overreach helped prompt a statewide policy shift on private property rights, has finally been made whole in the courts. Per The Oregonian:

Property rights advocates called it a bittersweet win. The Oregon Court of Appeals ordered Multnomah County to pay a $1.15 million judgment to the estate of Dorothy English, but the "poster girl" of the state's land-use argument isn't around to enjoy it.

English, who died in 2008 at age 95, fought the county in court for four years in an attempt to develop her property off Northwest Skyline Boulevard outside of Portland. She ultimately won a judgment for compensation, but the county maintained it had discretion whether to pay or not. A Circuit Court judge sided with the county, but the appeals court emphatically reversed that decision and ordered the county to pay. [...]

"It's a great ruling," said Dave Hunnicutt, president of the property rights group Oregonians in Action. "The Court of Appeals was very clear. Final means final, is what they were saying."

Oregonians in Action sponsored Measure 37 in 2004 and portrayed English as a victim of unfair land-use rules: an elderly widow and longtime property owner not allowed to develop her land. Voters approved the measure, which gave property owners the right to develop their land in a way that was permitted when they bought it. English, alternately wry and profane, endorsed Measure 37 in campaign ads.

About 6,500 property owners filed development claims after Measure 37 passed, many with the stated intent to build large rural subdivisions. The prospect of such development was a major factor in voters passing Measure 49 in 2007. It rolled back development rights, and most of the claimants settled for a process that will allow them to build one to three homes.

But English was not among them. She wanted to split her 20 acres into eight homesites for her family. But that wasn't permitted because the county had rezoned the property after English and her late husband bought it in 1953. English filed a Measure 37 claim, and the county agreed to let her develop eight lots in lieu of paying compensation. But the county loaded its approval with conditions. English's attorney responded that such standards and procedural rules didn't exist when English bought the property.

For more of the backstory on Measure 37 and Ms. English's role in it, see my 2005 study here. Measure 37 was subsequently watered down, as discussed in the "Land Use and Environment" section of Reason's Annual Privatization Report 2008.

Still, Oregon landowners owe a great deal to Ms. English, as their property rights are more secure today than they were a decade ago (though there's still a long way to go). And she helped raise public awareness of the importance of protecting private property rights and the myriad of ways in which they are threatened under Oregon's top-down, state-driven land use regulatory system. While eminent domain reform is certainly important and worthy of attention, we should never forget that regulatory takings are no less of a threat to private property rights.  

» Reason's Eminent Domain & Regulatory Takings Research and Commentary


Leonard Gilroy is Director of Government Reform


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