Oregon Public Broadcasting

Remember Measure 37? It's the 2004 land-use initiative that offered relief to people who could prove government rules diminished their property value.

That law was superceded by Measure 49. But not entirely.

The new law scaled back how much people could actually build, but some landowners were already well along in building under the old law.

Rob Manning reports that a recent Yamhill County decision sheds new light on what projects are essentially "grandfathered" under the old law.

The Abrams' family was among the first to file a big Measure 37 claim in Yamhill County. Over the last three years, they pushed ahead on a 50-unit subdivision just outside of McMinnville. Land-use watchdogs weren't happy to see good farmland turn into housing.

Then Measure 49 came along. It could have scaled back the Abrams’ claim to just two homes. Instead, John Abrams argued that the old Measure 37 still applied because his family’s development was legally "vested."

Abrams: "It has paved roads, it has water and utility services, there’s Comcast Cable, Northwest Natural Gas, Verizon phone, McMinnville Water and Light to every lot. The underground utilities are in the ground."

The Abrams family argued that they spent two million dollars in upfront costs. A hearings' officer ultimately agreed that the Abrams' project is "vested." But opponents are preparing appeals on multiple fronts. Eric Stachon is with land-use watchdog, 1000 Friends of Oregon. He says the Abrams' decision continues a trend in some counties where vesting is easy to prove.

Stachon: "Yamhill County is a classic case. They've approved 22 and they've denied zero. That’s a problem."

1000 Friends says it would like to see the state step in and fight bad vesting decisions - because concerned neighbors rarely have the money to do it.

Dave Hunnicutt with Oregonians in Action, agrees there should be state guidelines. But Hunnicutt says lawmakers didn't do it when they had the chance last fall.

Hunnicutt: "They could have said, ‘if you get your Measure 37 claim approved, and let’s say you put in a well, and you put in a road to the new house you want to build, then you’re vested.’ The legislature had the ability to do that, and they chose not to."  

If one thing is consistent about these vesting decisions, it’s money. Investors in the Abrams’ project spent over two million dollars on their project. Many other projects without such funding remain on the drawing board, and will need to follow the new rules under Measure 49.

OIA president, Dave Hunnicutt says people with deep pockets will also have an advantage in hearings and in court. But he says the Mom and Pop property owners – whom the new law was supposed to help - may wind up with far fewer options.