Supreme Court Rules in Another Measure 37/Measure 49 Case

The Oregon Supreme Court recently issued its opinion in a controversial Measure 37/49 case out of Yamhill County. In Friends of Yamhill County, Inc. v. Yamhill County, __ Or __, __ P3d __ (October 20, 2011), the court considered whether a property owner who received a Measure 37 waiver to build a subdivision had a vested right to continue developing the subdivision despite Measure 49’s passage. In a nutshell, Measure 37 allowed property owners to develop their property according to rules that were in place when they purchased it. Measure 49 significantly curtailed Measure 37’s breadth, leaving most Measure 37 claimants with the right to build three residences on their property. However, Measure 49 permitted owners that obtained a Measure 37 waiver to complete projects permitted under a waiver if an owner could demonstrate that she had a common law “vested right” to do so.

In Oregon, there are six factors a court will review to determine if a property owner has a vested right. One of those factors is whether a property owner acts in good faith in spending time and money attempting to complete a development. In this case, the Oregon Court of Appeals concluded that any expenditures made before the effective date of Measure 49 were necessarily made in good faith. The Oregon Supreme Court disagreed. It remanded the case to Yamhill County Circuit Court for a determination of whether the owner’s expenditures made between the date the voters passed Measure 49 and the effective date of the act were made in good faith.

The Oregonian’s Eric Mortenson recently wrote a good article on the case, which you can read here.