The Oregon Natural Resources Report - Agricultural News from Oregon

Yamhill County Vested Rights Decisions

November 20, 2008

From Oregonians In Action,

Here is a copy of Yamhill County Circuit Judge John Collins’ opinion in a series of vested rights cases from Yamhill County.  Judge Collins found that the County had properly found that each claimant had a vested right.

Please note that each case concerned a review of the decision of the Yamhill County Vesting Officer, who had found that each property owner had obtained a vested right to complete their M37 claim.  In other words, these decisions are not ones where Judge Collins is being asked to weigh the evidence on his own – he is simply reviewing whether there was sufficient evidence to allow the county to make the determination it did, and whether the county correctly interpreted the law.

Judge Collins made a number of important rulings in this case, for those of you who are seeking a vested right, or who may decide to seek a vested

1.The platting of a partition or subdivision, by itself, does not create a vested right to complete the construction of homes on the property;

2.The factors that the Oregon Supreme Court set forth in the Holmes decision that a court or county considers in determining whether a right is vested are not hard and fast criteria;  they are issues for a court to consider, but are not hard and fast criteria.  This is good news for M37 claimants, and is certainly consistent with what most of us familiar with this area of law and who have been advocating for the rights of M37 claimants have been saying;

3. A court or county who is making a vested rights determination should consider all expenditures made in good faith prior to December 7, 2007 (the effective date of M49) in determining whether a right is vested.  This is consistent with every ruling made on this issue, although the same groups who supported Measure 49 have been trying to get the courts and counties to adopt a June 15, 2007 cutoff date.  This is good news for M37 claimants.

4. Judge Collins disagrees with Judge Panner’s Jackson County ruling that a
M37 waiver creates a contract between the property owner and the government.
Since Judge Collins (as a state trial court judge) is not bound by the interpretation of M37 by Judge Panner (a federal trial court judge), Judge Collins was free to reach a different conclusion, if he chose to do so.
Obviously, Judge Collins decision does not favor M37 claimants, and adds uncertainty to this issue – we now a state judge in Yamhill County ruling one way, and a federal judge in Jackson County ruling another way.  It is quite possible that both the Oregon Court of Appeals and the Ninth Circuit Court of Appeals will be asked to resolve this issue.

5. A vested right, once obtained, is transferable.  This is also consistent with every ruling made on this issue, and is consistent with the State of Oregon’s position, although the groups that told us all that M49 allowed vested rights have been arguing (as they did in this case) that M37 rights are personal and cannot be transferred, even after they have vested.  It is good to see that no one is accepting this ridiculous argument.

Judge Collins decision is most likely going to be appealed by the Friends of Yamhill County, the 1000 Friends group in the area.  This decision contains some good and bad holdings for M37 claimants.

Dave Hunnicutt

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