A majority of the 571 property owners with approved Measure 37 claims in Jackson County might be out of luck because of a new land-use law passed by voters Nov. 6, Jackson County commissioners discovered Tuesday.

A majority of the 571 property owners with approved Measure 37 claims in Jackson County might be out of luck because of a new land-use law passed by voters Nov. 6, Jackson County commissioners discovered Tuesday.

Only 154 of the property owners also have approved claims with the state, which gives them some recourse under Measure 49. Of these, 105 have not pursued any kind of land-use action, which greatly diminishes their opportunities under the new law that takes effect Dec. 6.

After further reviewing the status of the claims filed with both the state and county, commissioners found that because of the vesting rules set by Measure 49, perhaps as many as 34 property owners might have some chance of exercising the kind of developments they sought under Measure 37.

"It's a very small number," said Commissioner Dave Gilmour.

Commissioners plan to send a letter to Measure 37 claimants in about a week to give them some idea where they stand.

Measure 37, approved by voters in 2004, gave property owners the right to file a claim to waive existing land-use regulations that have been enacted since they purchased their land. In Jackson County, landowners filed claims ranging from one or two houses on a property to large subdivisions.

When Jackson County first began approving Measure 37 claims, it didn't insist that a property owner also file a claim with the state. Circuit Court Judge Phil Arnold ruled in January the county erred in not requiring property owners to file a state claim.

Measure 49, billed as the "fix" for Measure 37, places sharp limits on development, allowing up to three-parcel lot splits in a fast-track process.

Property owners with approved Measure 37 claims from both the state and county could still be eligible for limited development on their properties under guidelines released by the Oregon Department of Land Conservation and Development. These property owners will be receiving a notice from the state describing their options.

But with many legal questions remaining about Measure 49, the commissioners saw the potential for litigation from those whose claims are being undermined by Measure 49 or from other parties, including the state.

Commissioner Jack Walker said, "Whatever decision we make (on status of claims) we're going to be sued by one side or another."

Walker and the other commissioners expressed frustration but said they wanted to honor as many claims approved over the past three years as possible.

"We want to be fair to the people who have put in a considerable effort up to today," said Gilmour.

Commissioners discussed the possibility of asking the courts to rule on the vexing question of what it takes to prove a Measure 37 claim is vested.

"We're in a pickle because we don't know what the law is," said Commissioner C.W. Smith.

Under guidelines from the DLCD, the issue of vesting would have to be decided on a case-by-case basis.

General guidelines for determining whether a property owner is vested include the need to have spent a considerable amount of money toward the total development cost.

The development has to rise beyond the level of planning or grading. The property owner also has to show a good-faith effort in making progress toward the development. Construction work done without permits or after the law is approved by voters would not necessarily qualify under the good-faith requirement.

Reach reporter Damian Mann at 776-4476 or dmann@mailtribune.com.