Measure 49's tangled web

Some property owners with Measure 37 waivers approved by Jackson County are suing to protect their development plans, arguing that the waivers amount to legal contracts that cannot now be breached. We don't buy that argument, and we doubt the courts will either, but we do think property owners who have invested substantial amounts of money should be granted vested rights to proceed with their plans.

At the heart of this dispute is what constitutes a vested right under Measure 49, which dramatically scaled back Measure 37.

Voters approved Measure 37 in 2004, giving property owners the right to seek compensation for property value lost because of land-use restrictions enacted after they bought their property. The law allowed the county to grant a waiver of the restrictions rather than pay compensation.

Measure 49, passed last November and billed as a "fix" for Measure 37, sharply limited the scope of development. Property owners who obtained waivers under Measure 37 were limited to creating three residential lots under a fast-track process, or four to 40 homes in some cases.

Measure 49 also allowed property owners with waivers to proceed with their development if they had established a "common law vested right." Cities and counties can decide whether a vested right exists on a case-by-case basis, but Measure 49 specifically says that determination is not a land-use decision, so any dispute would be resolved not by the state Land Use Board of Appeals but by the courts.

Generally, according to information posted on the state Land Conservation and Development Web site, an owner must have completed substantial work on the development or invested a significant amount of money.

The local property owners' claim that the waivers granted under Measure 37 amount to legal contracts is hard to swallow. The voters passed Measure 37 to allow some relief from land-use restrictions. When it became clear that much more development would be allowed than many voters had thought, voters approved Measure 49 to scale back that development.

Simply put, much of what the voters gave under 37, they took away again with 49.

Jackson County commissioners played a significant role in bringing on this dispute when they enthusiastically embraced Measure 37 and approved many waivers without requiring the property owners to file a claim with the state as well — a decision that turned out to be wrong in many cases.

In our view, property owners who obtained Measure 37 waivers from the county but have done little or nothing further toward developing their property are simply out of luck. The law has changed.

But owners who have invested substantial amounts of money or performed significant work on their projects should be allowed to continue. Ultimately, where that line is drawn will be up to the courts.

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