Key land-use case unsettled

Dorothy English can build, but wants $1.15 million

By Nick Budnick

The Portland Tribune, Aug 10, 2007, Updated Oct 30, 2009 (42 Reader comments)

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.”

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