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The “vested rights” standard for allowing the completion of development under Measure 49 has been a brutal exercise in legal procedure for many Measure 37 claimants.  M49 was supposed to allow the completion of M37 development where the claimants had established a common law vested right.  The problem was, the standard for establishing a common law vested right based on sunk costs was only discussed in a single Oregon supreme court case.  From 1973.

So in Friends of Yamhill County v. Board of Commissioners, http://www.publications.ojd.state.or.us/S058915.pdf, the court decided to clarify the application  of the Holmes vested rights standard to M49 claims.  In Friends of Yamhill County, the claimant (Cook) had incurred:

“legal costs; surveying and engineering costs; costs incurred in excavating, grading, and conducting other subsurface or surface-level development of his property; costs incurred in arranging for the provision of electrical power to the subdivision, in securing permits for the development, and in testing and planning septic systems for each homesite; and money paid to record Cook's final plat and to pay property taxes imposed upon disqualification from special assessment.’”

Ultimately, the court did not decide whether these activites or the amounts pent on them established a vested right.  Instead, the court affirmed the remand of a claim of vested rights after the county failed to make numerous legal and factual findings that the court said were required.

The Or Sup Ct clarified that in evaluating a vested right based on development costs incurred under a M37 waiver, the county needs to consider and make specific findings as to the claimant’s good faith in incurring the costs, and ability to use the improvements for other purposes, in determining whether any of those costs could be considered in establishing a vested right (and the trial court on a writ of review needs to confirm that substantial evidence exists for these elements).

The court also held that the ratio test used to determine vested rights had to include the total cost of the project, including the construction of homes.  It did not say what would be required to show a “substantial” investment, and did not seem to give any weight to the 14:1 ration that had been held to create a vested right in Holmes.  In fact, the ratio is only one factor to be considered, rejecting the Court of Appeals’ conclusion that some factors were more important (“more material”) than others. 

Finally the court held that the determination of whether a use was permitted at acquisition is a legal question that the county had to expressly evaluate under the standards at the time.  In restricting the factual nature of permitted use, the court instructed the county and lower court to engage in a review of the text of the ordinances, and not the county practices.  Given what I’ve seen in county codes in the late 1960s and early 1970s, that might well present a very favorable standard for claimants to meet, but the court said that it was the claimants burden to meet it.