Bowers v. Whitman

The State of Oregon did not commit a taking, when the Oregon voters enacted Measure 49, because owner’s property had not vested. Further Measure 49 did not violate procedural due process or equal protection rights because the measure did not implicate fundamental rights and was not based on a suspect class.

In 2004, Oregon voters passed Measure 37 requiring state and local governments to compensate private property owners for the reduction in the fair market value of their property resulting from land use regulations. The measure also provided that a public entity could avoid payment by granting the property owner a waiver and allow the specified use. In 2007, the voters passed Measure 49 changing the remedies available to property owners who already began obtaining relief under Measure 37. Specifically, Measure 49 no longer allowed owners to pursue compensation unless the property owner had a “common law vested right…to complete and continue the use described in the waiver.” Plaintiffs, owners of real property in Oregon, were granted waivers under Measure 37 and did not receive any monetary compensation. However, because of Measure 49 they were no longer able to continue development of their land because they could not prove vested rights. Plaintiffs filed suit claiming that the State of Oregon and Jackson County committed a constitutional taking and violated due process and equal protection rights when the Oregon voters enacted Measure 49. The Ninth Circuit held that the state did not commit a taking because any potential property interest had not vested. Further, the Court held that Measure 49 did not violate substantive due process because the law did not involve fundamental rights, and the regulatory classification was not based on a suspect class and survived rational basis scrutiny under equal protection analysis. AFFIRMED.