Key land-use case unsettled
Dorothy English can build, but wants $1.15 million
JIM CLARK / TRIBUNE FILE PHOTO
Dorothy English, whose plight became the rallying cry for supporters of Measure 37, remains at the center of continued legal wrangling. Her thwarted plan to build eight homes on her property, however, has been approved, and she’s holding out for monetary judgment, too.
As a November ballot fight approaches over whether to modify Oregon’s Measure 37 land-use law, the case that started it all – that of Multnomah County resident Dorothy English – still lingers in court.
The persnickety grandma, now 95, was the poster child for the 2004 campaign ads asking voters to let landowners file claims against state and local government if land-use regulations had impacted their property values.
Since then, thousands of claims have been filed around the state under the law she spearheaded, causing local government officials to raise the specter of rampant unintended development as well as enrichment of private concerns from public coffers.
Opponents of Measure 37 persuaded the Legislature to put a measure on the November ballot that would curb what they say are excesses allowed under the property rights measure.
Just as the fight over Measure 37 is unsettled, so is English’s fight – at least, as far as the lawyers are concerned.
She bought land in 1953, and since has sold off two plots. English filed a Measure 37 claim in December 2004 on her remaining land to create eight parcels on which to build homes. Since her land is not within the urban growth boundary, she did not have that ability before the measure passed.
A Measure 37 claim forces a local government to choose whether to waive regulations that affected the property value, or to reimburse landowners for the effect of those regulations on their land.
The county has made a series of concessions to English since her filing, arguing that it cleared the way for her to build. But Multnomah County Circuit Judge Douglas Beckman entered a judgment against Multnomah County to pay English $1.15 million to compensate her for lost development rights. Later, Judge Jerry Hodson awarded English attorney fees of $438,000.
The county has appealed the attorney fees, calling them “clearly excessive and patently unreasonable.” At first the county appealed the $1.15 million judgment as well. Then it withdrew the appeal.
County gives the go-ahead
Now, county officials argue that rather than paying money, the county can merely waive all regulations that serve as obstacles to development. In May, the county issued a new order granting English the right to build on eight parcels.
“She can build whenever she wants. As of this date, she has chosen not to do so,” Multnomah County Chairman Ted Wheeler said, adding that English seems to want monetary payment more than she does the development rights she originally asked for. “Now what we hear is that they not only want the right to build but they want the money … they’re after the money.”
Her lawyer, Joe Willis of Schwabe, Williamson and Wyatt, argues that the county did not clear the way for development fast enough – and therefore the monetary judgment is appropriate.
“They only had 180 days to do it, and they failed miserably,” he said. Told of the county’s perspective, he said, “They still spew all this stuff to the public, and it’s not accurate.”
Specifically, he said the county still proposes that English’s subdivision plan go through public hearings – something not required when she bought the land in 1953.
Willis also suggested in court filings the county has used delay tactics to extort a cheaper settlement from English, whom he said gets only $543 a month in Social Security, as well as assistance from her family.
Case is an example for many
To critics of Measure 37, the English case is an example of how the law is hammering local government as well as the public at large.
Liz Kaufman of the Yes on Measure 49 campaign said that the measure the Legislature put on the November ballot will curb consequences that voters did not intend when they approved Measure 37 – without hurting people like English.
“Nothing is stopping Dorothy English from developing eight houses (currently),” Kaufman said. “And nothing would stop her from developing eight houses under Measure 49.”
Measure 37 proponent Dave Hunnicutt of the group Oregonians in Action said that the case shows how government picks on individual landowners like English.
“They continue to horse her around as far as the rights that we believe she’s entitled to under the measure,” he said. “We want to get her something before she passes on.”
Both sides are filing briefs on whether the county owes English $1.15 million, in preparation for an Aug. 31 hearing scheduled by Hodson.
The county’s Wheeler said: “It seems no matter what steps the board of county commissioners takes to resolve this matter, there is just one more issue that her attorneys attempt to bring up. … I think all of us would like to see the whole Dorothy English matter resolved once and for all.”
nickbudnick@portlandtribune.com