Answering The Vesting Question


   Thousands of Measure 37 claimants have already received their election forms and are forced with the prospect of making a choice.  Do I take my chances with being considered "vested" according to common law vesting standards or do I scrap the plans I have invested in under the old Measure 37 law and recreate new plans under the guidelines of Measure 49? 

   What claimants are finding is that this question is not an easy one to answer.  Common law vesting (albeit somewhat antiquated in today's development world) was used prior to the adoption of specific statutes to determine project vesting. 

Essentially, common law vesting uses a subjective set of standards to determine weather a project can continue under initial approval provided enough forward progress has been made to "vest" the approved use.  This type of vesting evaluation was important in a world with relaxed land use laws however it is difficult to apply this standard when laws are much tighter and upfront design and application costs are much more costly. 

The fact that this vesting practice has not been used for many years also makes it difficult to reintroduce  in today's land use process.  Simple questions surrounding vesting arise today which are not definitively resolved under common law vesting.  For example, if you do not have approval on all of your required permits and applications can you be considered vested?  The law is not clear.

Nevertheless, Measure 49 requires that each county develop a process to determine if claimants can continue with their Measure 37 project based on the common law vesting criteria.  Some counties are resolving this question through hearings officers, while others have taken a proactive approach by adopting emergency ordinances which help provide a definition of common law vesting and allow claimants to "apply" for vesting through this ordinance.  Jefferson, Yamhill and Linn County are among the counties that have created new ordinances to resolve this question.  Other counties may follow suit.

If you are a claim holder struggling with this question first check to see if your county has adopted a process for determining vesting.  If so, you will need to follow this process and most be required to submit additional project information including financials to determine if you pass the common law vesting test.  It is likely this vesting practice will be challenged by both claimants believing they are not being treated fairly and by DLCD which may be using a strict interpretation of common law vesting criteria. 

For more information about Common Law Vesting and some specific case examples of vesting determinations please see "OIA's Vested Rights Memo, by Ross Day, December 11, 2007".