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November 07, 2007


Thanks Brian for your blog. It's very informative. I'm very interested on the vesting issue. On Pete's Mountain, near West Linn there is a 41 home subdivision that is trying to become vested. The developer is building a development and will be selling the lots for homes to be built. He believes his costs as a percentage of the the lots available has been over 50 percent so he will be vested.
Clackamas County is not stepping up to the plate and is acting more like advocates to the developer.

Yes, Pete's Mountain is one of the few Measure 37 claims that might be able to prove it's vested. However, the bad faith criterion could very well trip it up, unless most of the work occurred before June 15.

See my more recent post about vesting:

I didn't know that the Pete's Mountain plan was to sell lots for homes to be built on them. Under Measure 37, development rights don't go to a lot buyer; they stay with the Measure 37 claimant.

My wife and I always have been told that a Measure 37 subdivision couldn't sell lots to a would-be home builder. The claimant would have to build homes himself/herself and then sell them along with the lot.

Even then, the new owner still wouldn't have development rights. So that owner couldn't construct an out-building, an extra room, or maybe even rebuild the house if it burnt down.

I'm not surprised that Clackamas County is acting that way. Sounds a lot like Marion County.

Do we know who will be responsible for bring the vesting lawsuit against the developer of subdivisions? the state? the county? the homeowner groups?

Elaine, as Bloemers' memo says, it's unclear what the respective roles of the land use system (DLCD, counties, LUBA) will be versus the role of the court system.

I'd always thought that since vesting is a common law question, disputes would be fought out in the courts. However, indications are that vesting will be considered a land use decision, at least in part.

We'll know more soon, probably. Guidance will have to come from DLCD, AOC, and others about how vesting questions are handled. It could be that both tracks (land use and courts) are taken by different parties, with different motivations (i.e., Measure 37 claimants and neighbors wanting to stop development).

It's confusing at the moment. But it will get less confusing in the next few weeks, I'm confident.

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