FILED: December 15, 2010

IN THE COURT OF APPEALS OF THE STATE OF OREGON

JAMES A. SMEJKAL,

Plaintiff-Appellant,

v.

STATE OF OREGON,
by and through the
Department of Administrative Services,and by and through the
Department of Land Conservation and Development;
and WASHINGTON COUNTY,

Defendants-Respondents.

Washington County Circuit Court
C082694CV, C082695CV, C082696CV,
C082697CV, C082698CV, C082699CV,
C082700CV, C082701CV, C082702CV
A141836

Donald R. Letourneau, Judge.

Argued and submitted on July 15, 2010.

William C. Cox argued the cause for appellant. With him on the briefs was Gary P. Shepherd.

Stephanie L. Striffler, Senior Assistant Attorney General, argued the cause for respondent State of Oregon. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Christopher G. Gilmore, Senior Assistant County Counsel, argued the cause for respondent Washington County. With him on the brief was Office of Washington County Counsel.

Before Landau, Presiding Judge, and Ortega, Judge, and Sercombe, Judge.

SERCOMBE, J.

Vacated and remanded with instructions to enter judgment declaring parties' rights as to second claim for relief in a manner consistent with this opinion; otherwise affirmed.

SERCOMBE, J.

Plaintiff appeals a judgment dismissing his claims against defendants, State of Oregon and Washington County, in nine consolidated cases. The second amended complaint in each case alleged that both defendants breached contracts with plaintiff to waive the application of specific state or local land use regulations that would otherwise restrict the use of plaintiff's property. The complaints further asserted that a state statute impaired the obligations of the waiver agreements, contrary to impairment of contract provisions in the federal and state constitutions.(1) The complaints also sought declaratory relief that the state and local waiver decisions were akin to judicial judgments and were thus protected from the effects of subsequent legislation by the separation of powers provision of the Oregon Constitution.(2) After cross-motions for summary judgment, the trial court determined that plaintiff's claims lacked merit and entered judgment in favor of defendants. On review, plaintiff reiterates his impairment of contract and separation of powers claims. We conclude that plaintiff is not entitled to relief on his claims.(3)

The alleged waiver agreements occurred through the operation of Measure 37. Measure 37 was adopted through the initiative process in the 2004 general election, Or Laws 2005, ch 1, and was initially codified at ORS 197.352 (2005). The law was subsequently amended, Or Laws 2007, ch 424,