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Land-use squabbles likely to wind up in court

The confusion over Ballot Measure 37 development waivers may gain a measure of clarity when Jackson County commissioners define what "vested rights" mean under Measure 49, but we fear the courts will settle the matter in many cases.

The issue of vesting must be clarified before many property owners who obtained Measure 37 waivers know what their options are. The commissioners are providing a valuable service by setting standards for deciding when a waiver is vested.

In the meantime, property owners who hold waivers face a deadline to apply for the scaled-down "fast track" development allowed under Measure 49. We advise them to meet that deadline, even if they believe they may still be eligible to proceed with their original plans.

Measure 37, passed by voters in 2004, allowed property owners to seek a waiver of land-use restrictions adopted after they bought their property. The law required the government to compensate successful applicants for the loss in property value resulting from the restriction or to waive the restriction. Jackson County approved 571 waivers under Measure 37.

Statewide, about 7,000 claims were filed, prompting voters to pass Measure 49 last fall in an attempt to rein in large-scale development.

Measure 49 allows those holding waivers to apply for "fast-track" approval of up to three residential lots, go through a more difficult approval process for four to 10 homes in some cases, or show they had already invested enough money to establish a legally vested right to proceed with their original plans.

Measure 49 did not clearly define what constitutes a vested right, leading the commissioners to draft an ordinance setting specific standards for that determination. Those standards should be defined generously enough that property owners who have spent significant amounts of money are allowed to proceed with their plans, even if they have not begun construction.

But no matter how carefully the commissioners craft their ordinance, some property owners will go to court because their claim is not declared vested, and some land-use advocates will sue to block claims that are declared vested.

Some local property owners have already filed lawsuits claiming their Measure 37 waivers constitute a legal contract that the county cannot breach. If those plaintiffs have not already met the 90-day deadline for Measure 49 consideration, we urge them to do so.

Measure 37 changed state law to allow waivers. Measure 49 changed the law again to limit the scope of those waivers. That's not a breach of contract, it's a change in the law. Now it's up to the county, the state and the courts to sort out the details.

All of this could have been avoided if the Oregon Legislature had responded to growing demands to reform the state's land-use system. Lawmakers' failure to do so led first to Ballot Measure 7, which was passed and then invalidated by the courts, then to Measure 37 and now to Measure 49.

The "Big Look" task force, formed to review the entire system of land-use regulations in Oregon, has now been funded and its work will proceed, but any recommendations it makes will be too late to resolve the immediate issues raised by Measure 49.

Eventually, we hope to see a comprehensive overhaul of Oregon's land-use planning system, recommended by the task force and enacted by the Legislature. Until then, Oregon is stuck with the fallout from Measure 37 and Measure 49.