Hunnicutt v. Myers , 340 Or. 83 ( 2006 )

KISTLER, J.

Petitioner challenges the Attorney General’s certified ballot title for Initiative Petition 80 (2006). Because the ballot title does not substantially comply with the standards set out in ORS 250.035(2), we refer the ballot title to the Attorney General for modification.

Initiative Petition 80, if enacted, would affect a public body’s authority to regulate the use of real property.¹ The proposed measure has two main parts. First, the proposed measure would prevent a public body from waiving existing land use laws² and relieve it of its obligation under those laws to pay just compensation in two situations: (1) when allowing the proposed use “would reduce the value of a neighboring home or harm a neighboring family farm” and (2) when a corporation or developer seeks to “divide, build on or use land in violation of land use laws.” Second, the proposed measure provides that a property owner may build a single family home on the property owner’s homestead tract if the property owner could have done so when he or she acquired that tract.

The Attorney General certified the following ballot title:

“LIMITS GOVERNMENT AUTHORITY TO WAIVE LAND USE REGULATIONS; ALLOWS DWELLING IF ALLOWED WHEN PROPERTY ACQUIRED

“RESULT OF YES’ VOTE: Yes’ vote prohibits government from waiving land use regulation if proposed use would reduce value of neighboring home, family farm; allows certain single family dwellings.

“RESULT OF ‘NO’ VOTE: ‘No’ vote retains current law allowing government to waive land use regulation enacted after current owner acquired property, in lieu of compensation for diminished value.

“SUMMARY: Under current law, if land use regulation is enacted after property is acquired and regulation restricts use, reduces fair market value of property, government must pay just compensation or may instead, at government’s option, waive regulation. This measure prohibits government from waiving land use regulation if waiver reduces value of neighboring home or harms neighboring family farm; government would not be required to pay compensation in such cases. Prohibits corporation (defined) or developer (defined) from obtaining compensation or waiver. Allows property owner to construct single family dwelling if would have been allowed when property acquired. May be enforced by affected homeowner or family farm; burden of demonstrating compliance with law is on government, corporation, developer. Prevailing homeowner, farmer entitled to costs, attorney fees. Other provisions.”

Petitioner has filed a petition to review the certified ballot title. He has challenged the caption, the “yes” vote result statement, the “no” vote result statement, and the summary. Before turning to those challenges, we first discuss a procedural issue. ORAP 11.30 sets out the rules governing petitions for review of ballot titles. ORAP 11.30(4) provides that “[t]he body of the petition shall be no longer than 10 pages * * Because the petition in this case was 16 pages long, this court asked petitioner to show cause why it should not strike his petition and, in view of the strict statutory time limits for challenging a ballot title, dismiss his ballot title challenge. In response, petitioner filed, among other things, a late motion for leave to file an overlong petition, and we issued an order allowing that motion. See ORAP 1.20(5) (authorizing court to waive any rule for good cause shown). Although we have allowed petitioner’s belated motion, we note that, in the future, a petitioner who files an overlong petition in a ballot title case without first obtaining leave to do so runs a substantial risk that the court will strike the petition and dismiss the ballot title challenge without further notice.

We now trun to petitioner’s ballot title challenges and begin with his challenge to the caption. A ballot title caption must contain “not more than 15 words that reasonably identiffy] the subject matter of the state measure.” ORS 250.035(2)(a). Petitioner raises eight objections to the caption. Only one of his objections is well taken. Petitioner notes that the caption says that the proposed measure would “limi[t] government authority to waive land use regulations” but does not say that the proposed measure also would relieve government of its obligation to pay just compensation. Petitioner argues that the “focus on the ‘waiver’ aspects of the petition is shortsighted, and incorrectly leads the voter to believe the petition only applies to ‘waiver’ authority, and not to compensation authority.”

Before explaining why we agree with that argument, we first describe briefly the statutes that the proposed measure would affect. Currently, if a land use law “restricts the use of private real property or any interest therein and has the effect of reducing the fair market value of the property,” a public body either must pay the property owner “just compensation” or waive enforcement of the land use law. ORS 197.352(1) and (4). That requirement is subject to several exceptions; for example, it only applies if the property owner or a family member acquired the property before the public body enacted the applicable land use law. See ORS 197.352(3)(E) (identifying that exception).³

As noted, the proposed ballot measure would eliminate a public body’s statutory obligation to pay just compensation or waive the land use laws in two situations. As petitioner observes, however, the certified caption tells only half the story. It says the proposed measure “limits government authority to waive land use regulations” but does not say that the proposed measure also would relieve government of its statutory obligation to pay just compensation.

As written, the caption implies that the measure would eliminate a public body’s ability to waive the land use laws in certain situations but leave the public body obligated to pay just compensation. Because the caption is underinclusive and thus inaccurate, we refer it to the Attorney General for modification. See, e.g., Terhune v. Myers, 338 Or 554, 558-59, 112 P3d 1188 (2005) (phrase “ballot measure” in summary was underinclusive and thus inaccurate because it failed to disclose that proposed measure would apply to both initiative petitions and ballot measures); Kain v. Myers, 333 Or 497, 502-03, 41 P3d 1076 (2002) (phrase “prohibits post-election challenges” in caption was inaccurate because it failed to disclose that proposed measure would apply only to some post-election challenges).⁴

Petitioner also challenges the “yes” and “no” vote result statements. ORS 250.035(2)(b) and (c) require simple and understandable statements of not more than 25 words that describe the result if the people either approve or reject a measure. Petitioner contends that both the “yes” and “no” vote result statements “suffer from many of the same flaws as the caption.” He then lists the specific ways in which, he contends, those statements are flawed. In listing the perceived flaws in the “yes” and “no” vote result statements, petitioner repeats the objections to the caption that we already have held are not persuasive.⁵

Petitioner also raises an additional objection to the “yes” vote result statement. That statement provides:

“RESULT OF TES’ VOTE: Tes’ vote prohibits government from waiving land use regulation if proposed use would reduce value of neighboring home, family farm; allows certain single family dwellings.”

Petitioner observes that the “yes” vote result statement refers to the changes that section 2 of the proposed measure would effect but says nothing about what section 3 would do. He argues that that omission leaves the “yes” vote result statement underinclusive and inaccurate.

As noted, section 2 provides that public bodies do not have to pay just compensation or waive the land use laws when allowing the proposed use would reduce the value of a neighboring home or harm a neighboring family farm. Section 3 provides that public bodies also do not have to pay just compensation or waive the land use laws when a corporation or builder seeks to “divide, build on or use land in violation of the land use laws[.]” Petitioner reasons that, by describing only the changes effected by section 2 of the proposed measure, “[t]he ‘yes’ result statement implies that the government may still ‘waive’ land use regulations if the proposed use will not reduce the value of neighboring properties.” That implication is not accurate because, as petitioner notes, section 3 of the proposed measure eliminates a public body’s obligation to pay just compensation or waive the land use laws in another equally significant situation — when a corporation or developer seeks to use land in violation of the land use laws. Because the “yes” vote result statement is underinclusive and thus inaccurate, we refer it to the Attorney General for modification.

Finally, petitioner challenges the Attorney General’s summary of the measure. ORS 250.035(2)(d) requires “[a] concise and impartial statement of not more than 125 words summarizing the state measure and its major effect.” Petitioner reiterates in large part the challenges to the caption that we already have held are not persuasive. We have considered all the objections that petitioner raises to the summary and conclude that the summary substantially complies with the Attorney General’s obligation to summarize and describe the major effect of the measure.

Ballot title referred to Attorney General for modification.

1 A copy of the proposed measure is attached as an Appendix.

2 The proposed measure would modify in some respects ORS 197.352, popularly known as Measure 37 (2004). In referring to ORS 197.352, we express no opinion on whether that statute complies with either the state or the federal constitution.

3 ORS 197.352 is more complex than our description of it suggests. It is sufficient, however, for the purposes of this opinion to describe the statute in general terms.

4 As noted, petitioner raises seven other objections to the caption. We have considered each of those objections and reject them without further discussion.

5 Petitioner does not challenge the “yes” vote result statement on the ground that it refers to limiting a public body’s ability to waive the land use laws but says nothing about relieving a public body of its obligation to pay just compensation. The Attorney General, however, has the authority to modify the ballot title on referral to ensure that it accurately describes the proposed measure. See Kain v. Myers, 336 Or 116, 123 n 3, 79 P3d 864 (2003) (recognizing that authority).