Judge reverses ruling in Measure 37 case

A Northwest Portland couple who won $750,000 in damages in the first trial of a Measure 37 property development claim saw it disappear Thursday when a judge dismissed the case.

The ruling may foreshadow the fate of several pending land-use lawsuits.

Judge Jerry Hodson of Multnomah County Circuit Court essentially reversed himself. He had ruled in November after a six-day trial that county and state land-use laws restricted the use of Larry and Laura Luethe’s property and reduced its value.

The couple filed a Measure 37 claim in 2005, seeking to build a nine-lot subdivision off Northwest Skyline Boulevard under rules that existed when they acquired the property in 1973. Multnomah County turned them down, so the couple filed suit in 2006.

The case went to trial in November 2007, and the judge initially ruled in their favor. But Hodson ruled Thursday that Measure 49, which rolled back development rights allowed under the earlier measure, could be applied retroactively and made the Luethe’s case moot.

Voters approved Measure 49 in November, and it took effect Dec. 6.

"I recognize the seeming unfairness of applying a new law to a party who has relied upon existing law in a pending action," Hodson wrote. Nonetheless, the ballot language of Measure 49 clearly intended it to be applied retroactively to Measure 37 cases, he said.

The Oregon Supreme Court has ruled in other cases that the Legislature may retroactively amend state statute, the judge said.

The law firm representing the Luethes called the ruling a disappointment. The judge’s opinion was based on Supreme Court rulings that don’t apply to the Luethes’ "unique circumstances," attorney Mark O’Donnell said in a news release. He said the decision is ripe for appeal.

Larry Luethe said he didn’t know what to make of the judge’s decision. "He was in our favor all along, then all of a sudden — bingo — he rules against us."

Attorneys for the state and county filed motions asking Hodson to dismiss the Luethe case after Measure 49 took effect. He sided with them.

Similar rulings might await several other pending Measure 37 lawsuits, said Ralph Bloemers, an attorney with CRAG law center in Portland. Measure 37 claimants are "being encouraged to throw good money after bad" in pursuing their claims, he said.

They should proceed under the development standards allowed under Measure 49, he said.

Posted on Friday, February 1st, 2008, in Our Work In the News |
 Email This Post |  Print This Post