Not all Measure 37 claims for large subdivisions are dead. When Measure 49 passed it gave existing Measure 37 claimants three options:

1. The "Express Lane" gives a claimant a right to up to three houses provided that was allowed when the property was purchased;
2. the "Conditional" path gives claimants a right to build up to 10 houses provided they can show that they have actually lost that much money; Or
3. the "Vested Rights" path. If a claimant could show that they had proceeded far enough in the development of their subdivision or other land use that they had obtained a common law vested right to continue that use, then they could keep the rights they received under their Measure 37 claim.

Early reports from DLCD indicate that the vast majority of claimants are choosing the Express Lane – an easy way to get a few extra houses. However, a few claimants who wanted to develop large subdivisions are attempting to assert that they have acquired a vested right.

LandWatch is challenging the most egregious of those claims in Deschutes, Jefferson and Crook Counties.

The text of Measure 49 specifically says that a Measure 37 claimant may continue to develop their claim if they can show that they have obtained a "common law" vested right to do so. "Common law" is case law, not statutory law.

The Common law in Oregon sees a "vested right" as a kind of "non-conforming use." A non-conforming use is one that was legally established, but because of a change in the zoning law is no longer in compliance. Non-conforming uses are allowed to continue legally, but they can't be expanded upon, and if they are destroyed, they have to be replaced with something that is conforming to current law. A vested right arises when someone has begun the development of a property in good faith, only to have the law change on them in the process. At a certain point they have proceeded so far that they have established the use, and are allowed by law to continue.

Unfortunately there is no bright line test about what makes for a vested right to continue to build. Some of the essential elements of a vested right that the Courts have identified include:

1. "the good faith of the landowner, whether or not he had notice of any proposed zoning or amendatory zoning before starting the improvements"
2. Whether the acts of the landowner rise above "mere contemplated use" or preparation such as leveling of the land, boring test holes, or preliminary negotiations with contractors;
3. Whether the improvements that exist could be used for a use that is allowed under the new law; And
4. Whether the cost of improvements already made is significant as compared to the total costs of the overall proposed use.

While the common law is substantially more nuanced, this gives the basic outline. Most of the Measure 37 claims in Deschutes, Jefferson and Crook County have no structures, or even foundations on the ground. Some have bulldozed a road. Some have received septic approvals. Some have drilled wells. Nonetheless, a number of these landowners are asserting that they have established a vested right when it's not clear - or in some cases, highly doubtful - that they do.

One of the key questions being argued is "what is good faith?" If the landowner knew about the coming election, and rushed to spend as much money as possible on a Measure 37-related development, were those actions performed in good faith? What about money spent after the election when the landowner knew the law was about to change? Unfortunately Oregon case law is not clear on this point. However, states which have addressed this issue have consistently answered that question in the negative, essentially determining that rushing to vest in light of a potential change in the law is not good faith.

Another key question is what elements of a proposed development can be vested individually? For example, most Measure 37 claimants requested the ability to subdivide their property and develop a dwelling on each lot. For the purposes of the ratio test, in order to legally subdivide their land do they have to include the cost of eventually building all the houses or only the cost of surveying the land, and recording the new lots? If only the cost of recording the new lots is considered, and those lots are then sold, is there a vested right to build dwelling units on those lots? It seems to us that if the cost of the dwelling wasn't included in the original ratio test, then it has not been protected under any vested right, but again there is no "bright line" ruling to guide the way.

Central Oregon LandWatch is tracking the major cases, making comments, and appealing the most egregious attempt to vest Measure 37 claims. To date we have appealed three cases and have submitted detailed comments and legal analysis on four others. (A Summary of the vesting cases of interest is here) We won the single appeal that has been decided so far in Jefferson County. We are also informally tracking several other claims to see whether comments will be required.