Measure 49 reopened the method to review vested rights under 34 year-old case law in Clackamas County v. Holmes, 265 Or. 193 (1978). But, the analysis is vexing because very few local governments and courts are getting the analysis right. However, with each new decision, the Court of Appeals and Oregon Supreme Court are attempting to clarify how local governments and trial courts should consider the application of the Holmes factors necessary to make a vested rights determination.
The Holmes factors are:
1) The ratio of prior expenditures to the total cost of development;
2) The good faith of the landowner in making the prior expenditures;
3) Whether the expenditures have any relationship to the complete project or could apply to various other uses of the land; and
4) The nature of the project, its location and ultimate cost.
In its January 12, 2012 opinion in Bowers v. Whitman, the Ninth Circuit Court of Appeals concluded that the State of Oregon (and Jackson County) did not violate Plaintiffs' property rights under the takings, due process, and equal protection clauses of the United States Constitution when the State modified the remedies available under Ballot Measure 37 through the enactment of Ballot Measure 49 (now codified as ORS 195.300 to 195.336). The Court held that any potential property interest the Plaintiffs had for compensation or for a specific type of land use based on their Measure 37 waivers had not vested, and therefore was not protected by the Fifth and Fourteenth Amendments.
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