The battle to pass Oregon's Measure 49 has been won (62% of voters said "yes" to fixing Measure 37). Now the fight has shifted to determining which, if any, of the 7,500 Measure 37 claims around the state are vested under common law.
Vesting means that enough work has been done on a claim to allow it to continue under Measure 37, rather than Measure 49.
Yesterday Ralph Bloemers of the Crag Law Center released an excellent memorandum, "Transition to Measure 49 & Vested Rights." It's must-reading for interested citizens, state agencies, and local governments, along with a companion memo about the issuance of permits for Measure 37 development. Download crag_law_center_memorandum_on_vesting_11_9_2007.pdf Download crag_law_center_measure_37_memo_re_applicable_law_11_9_2007.pdf
The concept of "vested rights" is linked to the idea of "nonconforming uses." Laws passed by the Oregon Legislature allow existing uses and buildings that do not conform to new land use regulations to be continued as "nonconforming uses."
…The concept of "vested rights" has been defined by Oregon courts to address the situation in which a landowner or developer had begun construction of a particular land use, for example a residential subdivision, but before the project was completed a change in land use regulations prohibited that proposed use.
The basic idea is that at some point in the course of development, the nonconforming use has come into existence, even if it is not finished, and the use ought to be protected by the laws allowing, but limiting, the continuation of nonconforming uses.
This is a hot issue right now.
Friday a story in the Oregonian, "Claims stall until Measure 49 sorted out," talked about how officials, Measure 37 claimants, and concerned neighbors of claims are struggling to figure out what "vesting" means under Measure 49.
A uninformed Douglas County commissioner, Doug Robertson, wrongly believes that he's got it all figured out and can ignore Measure 49. Vesting is central to a dispute in Jackson County about a proposed Measure 37 rock quarry along the Applegate river.
And tomorrow's Salem Statesman Journal will run a story that, according to a front page teaser today, is about Measure 49 aftermath: "The voters have spoken on Measure 49, but it's still trench warfare over some claims that may or may not have the right to move forward."
[Update: the Sunday Statesman Journal story is "Some land-use claims remain in limbo." I'm quoted!]
So Ralph Bloemers' carefully researched legal memorandum comes at a perfect time to shed light on what vesting means under Measure 49.
Next week county officials will try to come to grips with this issue at an Association of Oregon Counties conference. The Crag Law Center memo should be front and center at their discussions.
I urge you to read the document yourself, via the PDF file link above. It doesn't answer every question about vesting (for example, whether this is a land use decision or a court decision seems to be up in the air).
But it comes close. The bottom line is that very few, if any, Measure 37 claims are going to turn out to be vested. Bloemers' final paragraph says:
The common law highly disfavors the establishment of nonconforming uses, particularly while a change in the law is pending. Regardless, the vesting, if any, is limited by the extent of the adaptability of the use for currently allowed uses. The expenditure test and other tests are also applicable to determining vested rights in this context.
The Oregon Supreme Court has ruled that "bad faith" is a no-no for a landowner trying to establish a vested right. On page 9 Bloemers has a section called "Racing to develop the property in order to beat the provisions of Measure 49 is bad faith."
Claimants considering whether to proceed under Measure 37 will need to satisfy the common law, in other words that they did not know or should not have known about the possibility Measure 37 would be modified by Measure 49.
The likely latest candidate date, given both the prior publicity and precedents elsewhere would be June 15, 2007 [when Measure 49 was referred to the voters]. Investments after that date may be considered investments intended to beat the clock and therefore not investments made in good faith.
But even if a Measure 37 claimant somehow wasn't aware of Measure 49 (in a previous post about vesting, I said they'd have to be in a coma or hermetically sealed in a cave for this to be believable), Bloemers argues that development investments supporting a conforming use cannot be counted toward vested rights.
What this gets at, in part, is that large subdivisions allowed under Measure 37 now are limited by Measure 49 to three home sites if they're on farm, forest, or groundwater limited land (4-10 home sites otherwise).
So drilling of wells, digging septic holes, road grading, surveying, and similar work generally would support the uses allowed under Measure 49 and wouldn't be considered vesting expenditures.
The memo has another section called "There can be no vested right to develop without development permits." This obvious requirement is going to come back and bite those Measure 37 claimants who rushed ahead with construction without getting required county building or state erosion control permits.
I've been talking with neighbors of a Measure 37 claim out on Sunnyview Road in east Marion County. Construction there didn't start until election day, November 6.
Now, I've heard, there's been five wells sunk, septic tank holes dug, a road roughed in, and erosion controls have been minimal. The neighbors are aghast that county officials have been allowing this to go on.
I was pleased to read in Bloemers' memo:
For projects where development is underway, the government agencies and local jurisdictions are well-advised to preserve the status quo and limit their liability by issuing stop work orders until a definitive and prompt resolution of these issues takes place.
County agencies should order the cessation of activities to determine vested rights or they will risk being in violation of law.
My sentiments exactly.
Hopefully Bloemers' excellent legal advice, tomorrow's Statesman Journal story, and next week's Association of Oregon Counties conference will combine to lead Marion County to do what should have been done the day after Measure 49 passed:
Stop all work on Measure 37 claims until vesting questions are resolved. Because it's clear that very few, if any, of the 7,500 claims will turn out to be vested.
So like I said before, stopping work on all claims will benefit both neighbors and claimants.
Neighbors don't want construction to continue beyond what Measure 49 allows. And Measure 37 claimants shouldn't want this either – unless their goal is to waste money on fruitless construction activities.