As explained in a previous post, many landowners that have received Measure 37 waivers are attempting to "vest" their claims under the law as it existed prior to the passage of Measure 49 rather than proceed under the new law established by Measure 49. The reason for this is that Measure 49 is far more restrictive than Measure 37 was, and allows a claimant to pursue only a limited number of units.

Where claimants are pursuing the vesting option, the operative question is whether or not landowners acted in "good faith" as they pursued land use approvals, improvements, and investments in their claims. In order to be vested, claimants must have received M37 approvals, subsequent land use approvals, and have made significant improvements and investments without rushing to act with the knowledge that M49 might take many of the rights granted to them under M37 away. Because there is no bright line determination of what precisely what it means to be vested under common law, it's not perfectly clear at this point which claims ought to be considered vested.

While some M37 claims elsewhere in the state may have valid arguments in favor of vesting, our legal analysis suggests such cases are practically nonexistent in Central Oregon. LandWatch has decided to appeal the most egregious of these cases throughout Jefferson, Crook, and Deschutes Counties. In each case, the claims are on EFU farmland, and our primary objection is that the claimant did not complete enough on-the-ground improvements to qualify as vested under the common law as required by M49. These claims are as follows:

Landrus, Crook County: 27-lot subdivision on 135 acres.
Determined to be vested administratively by county staff. We've commented on and appealed the determination to the County Planning Commission. No hearing has been set.

Hudspeth, Crook County: 59-lot subdivision on 259 acres of land.
Same status as Landrus.

Hoffman, Jefferson County: 60-lot subdivision on 187 acres.
We appealed to the Planning Commission and won. The claimants appealed this decision to the Board of County Commissioners, and LandWatch will defend its position there. The original hearing was postponed, and split into two hearings: one on vested rights, the other on the Land Use application. The first hearing on vested rights is now in late March.

Arnett, Deschutes County: 30-lot subdivision on 108 acres.
LandWatch commented in a Declaratory Rulings proceeding before a Hearings Officer. No determination of vesting has yet been made. The claimants have also taken this to Circuit Court with a Pre-Trial meeting set for April. LandWatch is considering whether to become a party to that case.

Harry Sisters, Deschutes County: 9-lot subdivision on 80 acres.
Same as Arnett, except it's not in Circuit Court.

Miles, Deschutes County: 8-lot subdivision on 80 acres of land.
Same as Arnett & Harry, except they got through final plat approval, have the foundations of two houses built, and then the claimant passed away.

Rencher, Deschutes County: 8-lot subdivision on 40 acres.
Presently in Circuit Court. Hearing has been postponed for now.

Walker, Deschutes County: 20-lot subdivision on over 300 acres.
Still under M37 litigation with us. Applicant has submitted a Land Use application that has not yet been approved. LandWatch has submitted comments on the application stating that a vesting determination is required. Applicant hasn't applied for a vested right determination.