Developers who have already obtained permits to build on property affected by voter approval of Measure 49 changes in land use law may have to turn to the courts to decide whether they have gotten far enough to keep building.
"Measure 49 is going to keep lawyers employed for decades," said David Hunnicutt, president of Oregonians In Action, the chief opponent of the measure overwhelmingly approved by Oregon voters on Tuesday.
The new law was widely promoted as a "fix" for problems in Measure 37, the property rights law written by Hunnicutt and approved by voters in 2004.
The goal of Measure 37 was to open up farms and forest for development by requiring the state to compensate qualifying landowners for leaving it undeveloped or to waive regulations for developing it.
Confusion over who qualifies under Measure 37 and challenges to how the law was being interpreted led to Measure 49, which limits development to three basic choices, or paths to approval:
162; The "express lane" option would allow a qualifying property owner to build one to three home sites on farm or forest land, or areas where groundwater is limited, with a relatively simple application process.
162; The "conditional path" would allow four to 10 houses on land that may not be farm or forest land, or is limited because of its groundwater. But the land owner will have to demonstrate a loss of value from a land use regulation that justifies the number of new home sites requested.
162; The "vested path" would continue existing Measure 37 claims for a property owner who has developed the land enough to claim a vested right to continue and complete the development.
But determining whether rights have been vested will mostly be up to the courts, according to state officials and various groups involved in the property rights battle.
"If people come to us and say, 'Give us your stamp saying we're vested,'" they will end up going to their county government or the courts to get an answer because the state does not make that determination, said Michael Morrissey, the Measure 37 division manager for the Oregon Department of Land Conservation and Development.
The law firm Davis Wright Tremaine prepared a guide for the Association of Oregon Counties that noted the "issue of vested rights is nebulous" in Oregon courts.
Some cases already on the books offer guidance, but most of the applications are expected to be decided on a case-by-case basis, officials say.
As a result, Hunnicutt said he expected a number of property owners to go to court to file for declaratory judgments in the coming weeks to ensure their property rights are properly vested.
"The only way you're going to feel safe," Hunnicutt said, "is with a final judgment from a trial court saying your rights are vested."
Morrissey said only about 500 property owners of the 7,500 who have filed Measure 37 claims have qualified for the necessary permits so far, and there was no way to determine how many of those 500 had moved forward enough to be considered "vested," but he suspected it was a relatively small number.
Eric Stachon, spokesman for 1000 Friends of Oregon, said the land-use advocacy group did not expect a wave of new court cases. "But there's a lot of riding on those cases that will be litigated," Stachon said.
For Leroy Laack, an 80-year-old real estate developer trying to build a subdivision on former farmland in Marion County south of Salem, it will mean more delays.
"We're really caught between a rock and a hard place," Laack said. "I don't know if we can go forward or not. In the meantime, the county started taxing us as nonfarm use because we're not farming."
But Brian Hines, a neighbor who has led opposition to the subdivision, said he fears many developers will go ahead and start working on their property in the hope that will help them become "vested" before Measure 49 officially takes effect on Dec. 6, 30 days after the election.
Hines said his experience has been that counties have not been very efficient at making sure land owners are properly qualified before they begin development, leaving it to watchdog groups or concerned neighbors.
"Most people are trying to live their lives and they have to become land use experts overnight," Hines said. "They should be able to call up the county and ask when there's construction next door, is it legal? Measure 49 hasn't stopped that unfortunately."
Small number of developments likely affected by land use law