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As the attorney for Friends of Yamhill County, Ralph Bloemers, aptly labeled them, those pesky “Ghosts Of Measure 37” are likely to haunt rural areas for years to come as a result of the Oregon Supreme Court’s recent ruling in Friends of Yamhill County v. Yamhill County.  This case marks the first time the court has considered the scope of common law vested rights since its ruling in Holmes v. Clackamas County, over 40 years ago.  The Holmes court identified six factors that must be considered to determine a property owner’s rights to continue construction when land use laws are enacted that would make a partially finished project unlawful.

The Oregonian reports that a Marion County judge reversed a decision by the Marion County Board of Commissioners who in July 2009 voted that the Laack’s had a vested right to continue building a 42-unit subdivision in the South Salem Hills under their Measure 37 waivers.  The judge, relying on a recent Court of Appeals case, Friends of Yamhill County, Inc. v. Board of Commissioners of Yamhill County, __ Or.App. __ (September 2010, No. A140899), concluded that the Laack’s expenditure of about $385,000 on the project with a total budget of $12 million to $14 million was not enough to constitute a vested right. 

With the recession, the Gulf Oil Spill and overseas wars, and battle raging over the future of urban growth in the Metro area, Oregonians may be forgiven for not bringing to mind a previous crisis and the resolution of that crisis chosen by voters after much debate.  In 2004, voters passed Measure 37 to provide “just compensation” for property owners who claimed their balance sheets were reduced by state or local land use regulations.  The remedy under the Measure was either payment for that “lost value” or (as was overwhelmingly the case) a waiver of those regulations that had been enacted since the current owner acquired the property.  Over 6,850 Measure 37 claims, affecting over 750,000 acres of land were filed. 

Ed Sullivan and Jennifer Bragar are pleased to announce that a comprehensive law review article entitled, “The Augean Stables:  Measure 49 and the Herculean Task of Correcting an Improvident Initiative Measure in Oregon” has now been published by the Willamette Law Review, Vol. 46, Number 3, p. 577, Spring 2010.

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