This is the sort of blog post that's absolutely fascinating to a few, and absolutely boring to the many.
If you're not, all I can say is that what follows will be great reading for those agitated sleepless nights when you need something boring to shut your mind down.
Because this is a compendium of legal writings surrounding the question of when a Measure 37 claimant has a vested right to continue with development of a project, even though Measure 49 was passed by 62% of Oregon voters on November 6, 2007.
If you're vested, it's a lot like being "grandfathered" in to a previous state of legal affairs. Measure 49 says that the common law of Oregon is the basis by which vesting decisions will be made.
Since common law is a bunch of cases – precedents – there's no neat and tidy statute that says whether a development project is far enough along to be considered vested. Vesting is decided on a case by case factual basis, usually by a court.
But guidance, "Ballot Measure 49 and the Common Law of Vested Rights," put out by the Oregon Department of Land Conservation and Development and the Department of Justice, says that now either local governments or circuit courts may end up making vesting decisions. That DLCD/DOJ guidance is a good introduction to how vesting will be handled under Measure 49.
An easy to read overview is "1000 Friends of Oregon's Guide to Measure 37 Vested Rights." I found a few typos in it (210 days is 7 months, not 9 months), but this is a well-written and clear discussion of vesting – albeit with a not-surprising slant toward the interests of neighbors opposed to a project being vested. Download vesting_guide_11.20.07.pdf
A new "Citizen's Guide to Vesting" is forthcoming, says 1000 Friends. You can check here periodically to see if it's available.
The best legal analysis of vesting has been written by Ralph Bloemers of the Crag Law Center. And I'm not saying that just because he's the lawyer representing our neighborhood in a fight against a Measure 37 subdivision that threatens our groundwater.
His memorandum on "Transition to Measure 49 & Vested Rights" is a solid take on the common law in this area. If you're a Measure 37 claimant you may not like some of what Bloemers has to say, but you need to understand it if you hope to be successful in a vesting case. Download crag_law_center_memorandum_on_vesting_11_9_2007.pdf
Bloemers and the Crag Law Center also distributed an analysis of HB 3540, which became Measure 49, and the good faith requirement for vesting. It's also must-reading for both Measure 37 proponents and opponents. Download memorandum_on_vesting_for_the_public_7_24_2007.pdf
Their memorandum on the issuing of permits under Measure 37 is less directly related to vesting, but is still applicable. Download crag_law_center_measure_37_memo_re_applicable_law_11_9_2007.pdf
A couple of attorneys in central Oregon, Edward Fitch and Michael McLane, have put out a counterpoint to the Crag Law Center vesting analysis. They don't make nearly as much sense as Bloemers, in my opinion, but you can read and decide. Download ed_fitch_m49.pdf
A Zupancic Group memorandum on "Common Law Vested Rights Under Measure 49" also tilts toward the pro-Measure 37 legal side. Still, James Zupancic and Kristina Faricy have put together a lot of vesting case law and make some interesting arguments. Download vested_rights_memo.pdf
These LUBA notes on vesting are for the really hard core Measure 49 junkie. They point to cases that help form the common law in this area. Download luba_notes_on_vesting.pdf
For an example of how counties are approaching vesting decisions, peruse Marion County's recently-passed vesting ordinance. Download marion_county_vesting_ordinance.pdf
Roger Kaye, president of Friends of Marion County, submitted a letter commenting on the proposed Marion County ordinance. It contains additional observations on the case law in this area. Download fomc_ltr_re_m49_ordinance.doc