Hunnicutt v. Myers

*100KISTLER, J.

Petitioner challenges the Attorney General’s certified ballot title for Initiative Petition 81 (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.

The proposed measure at issue in this case duplicates in large part the proposed measure at issue in Hunnicutt v. Myers (S52977), 340 Or 83, 127 P3d 1182 (2006) (Initiative Petition 80 (2006)).1 The proposed measure would eliminate a public body’s statutory obligation to pay just compensation or waive the land use laws in two situations. It also would preserve a property owner’s right to build a single family home. The proposed measure, however, includes an additional provision; it would authorize a public body to condemn certain types of real property for private use only if the public body paid the property owner twice the property’s fair market value.

The Attorney General certified the following ballot title:

“LIMITS GOVERNMENT AUTHORITY TO WAIVE LAND USE REGULATIONS; REQUIRES ADDITIONAL COMPENSATION FOR CERTAIN LAND CONDEMNATIONS
“RESULT OF WES’ VOTE: Wes’ vote limits government authority to waive land use regulations; requires government to pay additional compensation when condemning certain land for conveyance to private owner.
“RESULT OF ‘NO’ VOTE: ‘No’ vote retains current law allowing condemnation for any public use, including transfer to private party, and allowing government to waive certain land use regulations.
“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. Measure conditions *101government authority to condemn owner-occupied house or duplex unless purpose is to allow ownership, use by public body; if purpose is to convey property or property interest to new private party, government must pay double amount of just compensation. Prohibits government waiver of land use regulations if proposed use reduces value of neighboring home or harms family farm. Prohibits waivers to corporations or developers (defined). Allows one single family dwelling to be built if dwelling would have been allowed when property was acquired. Other provisions.”

Petitioner challenges the caption, the “yes” vote result statement, the “no” vote result statement, and the summary. Although the proposed measure and ballot title in this case differ in some respects from the proposed measure and ballot title in Hunnicutt (S52977), our decision in that case controls the outcome here.

We begin with petitioner’s challenges to the caption. Although petitioner raises numerous challenges to the caption, only one of his objections is well taken. He argues, as he did in Hunnicutt (SS2977), that the caption is inaccurate because it states that the proposed measure “limits government authority to waive land use regulations” that restrict a landowner’s use of his or her land but says nothing about the fact that the proposed measure also would relieve government of its obligation to compensate those landowners. We agree with that argument for the reasons explained in Hunnicutt (S52977) and refer the caption to the Attorney General for modification.2

Petitioner also challenges the “yes” and “no” vote result statements. 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 that we have held are not persuasive. He omits any objection on the ground that we have held requires the Attorney General to modify the *102caption. Petitioner has raised no valid objection to the “yes” and “no” vote result statements.

Finally, petitioner challenges the Attorney General’s summary of the measure. As with the “yes” and “no” vote result statements, petitioner reiterates the challenges to the caption that we already have held are not persuasive. He omits, as he did before, any objection on the ground that we held requires the Attorney General to modify the caption. We note that, although petitioner has not argued that the “yes” vote result statement, the “no” vote result statement, and the summary are inaccurate because they refer only to waiving the land use laws, the Attorney General 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).

Ballot title referred to Attorney General for modification.

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

We have considered the other challenges that petitioner raises to the caption and reject them without further discussion.