September 11, 2001 - Court weighs property compensation case  - Oregon Supreme Court justices questioned lawyers and listened to their arguments Monday as they prepared to decide whether the state's property compensation measure violates the constitution.

Legal challenges have put Measure 7 on hold since voters approved it last November. A trial judge ruled in February that it violated several constitutional dictates about how to draft a constitutional amendment for voters to consider.  The measure requires city, county and state governments to compensate landowners for economic losses caused by regulations such as zoning or land use restrictions.

Landowners who want to sue for compensation under the measure will probably have to wait for months, possibly for a year or more, as the court wrestles with the case. In the meantime, Measure 7's supporters and foes alike may take their case back to the Legislature or directly to voters as they seek a workable solution to the thorny property-rights question at the heart of last year's initiative.

"We still think it's important to replace Measure 7 with something that's more workable, more balanced and that provides fairness to landowners while protecting the values that make Oregon a great place to live," said Randy Tucker, a spokesman for 1000 Friends of Oregon, a statewide land use watchdog group opposed to Measure 7. Tucker said he's part of a coalition discussing possible initiatives for next year's ballot as well as the possibility of a special legislative session if the high court rules that Measure 7 is constitutional.

Larry George, executive director of Oregonians in Action, the group that successfully campaigned for the initiative's passage, said a follow-up ballot measure was unlikely from his side of the debate.

Given the spate of recent court decisions, it would appear difficult, if not impossible, to craft an initiative or series of initiatives that could avoid the same litigation that has ensnared Measure 7, he said. But George said his group is willing to engage the help of the Legislature to draft language that would address opponents' concerns about retroactive cases and streamline the compensation process for governments and aggrieved landowners alike.

"We think Measure 7 is fine the way it is, but we've said to them, `You think there would be all these drastic implications, we would be willing to negotiate this thing out in the Legislature and put in these sideboards so that won't happen,' " George said. "It should have happened during the last legislative session."

In the legal arguments before the high court, lawyers opposing Measure 7 said the initiative failed to include the full text of sections in the constitution that would change under the proposal. They also said it improperly dealt with more than one subject, proposed more than one change to the constitution and revised, rather than merely amended, the constitution.

Eugene attorney Bill Gary, who represented several local governments including Eugene, Junction City and Veneta, said Measure 7 fundamentally altered a government's power to regulate land use. Under Measure 7, he argued, "There is no authority to regulate the use and enjoyment of property without paying. And prior to Measure 7 the government had that authority."

Measure 7 also combined five decisions that should have been posed as separate votes, said Portland lawyer Tom Christ, who represented Audrey McCall, the widow of Gov. Tom McCall, and other individual plaintiffs.

One part of Measure 7 asked voters to change a constitutional provision on how government compensates people when it "takes" private property, for example, while another part barred landowners from seeking compensation if regulations prevented them from putting nude dancing establishments or adult bookstores on their property.

Christ cited earlier case law that created a "separate vote" test - it prohibits initiatives from making separate changes to the constitution when "a voter's support for one provision does not necessarily imply support for any others." Lawyers for the state and for the measure's chief petitioner countered that Measure 7 was well within the bounds of the Oregon Constitution. "Measure 7 only effectuates one change to the constitution," said John DiLorenzo Jr., an attorney for chief petitioner Stu Miller of Woodburn.

Assistant Attorney General Janet Metcalf, defending Measure 7  on behalf of the state, said opponents are going beyond what the constitution requires in arguing that the initiative should  have been divided into separate measures. It dealt with closely related ideas that belonged in a single amendment, she said.

"I think if they failed the `closely related test' ... then we're separating things out so much that people are presented with fragmented details that don't fit together under any coherent scheme at all," she said. Source: 9/11/01 Register-Guard, By DAVID STEVES