Bowers v. Whitman

Legislation which replaced and modified former legislation regarding the processes in which landowners receive compensation for government land use regulations, does not amount to a "constitutional taking" of property interests under the former legislation, when property interests have not yet vested.

In 2007, Oregon voters passed Measure 49, which changed the method landowners are compensated for the reduction in the value of their property due to any land use regulations of "governmental entities that restrict the use of the subject properties." Previously, under Measure 37, landowners were awarded "just compensation" if the fair market value of their property was reduced, "even if such reduction did not constitute a 'taking.'" Measure 49 replaced the process under Measure 37 for those already pursuing action under that measure and "does not mandate any particular process for establishing vested rights." Plaintiff landowners filed suit against Jackson County claiming that (1) the "waivers granted to them by the County under Measure 37 constituted binding contracts, protected by the Contracts Clause of the U.S. Constitution" and (2) under Measure 37 they "gained an accrued cause of action for monetary compensation," a property interest protected by the 5th and 14th Amendments. The district court dismissed the plaintiffs' case and plaintiffs appealed. The Ninth Circuit held that the government did not engage in a "constitutional taking" when it changed the scheme for remedies under Measure 37. The Ninth Circuit reasoned that there was no taking because "any potential property interest that Plaintiffs had for compensation or a specific type of land use under Measure 37 had not been vested." Additionally, the Ninth Circuit reasoned that "Measure 49 also does not contravene substantive due process, because it does not implicate fundamental rights," because the regulatory scheme "is not based on a suspect class," and the measure is rationally related to legitimate state interests. AFFIRMED.