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Measure 49 reopened the method to review vested rights under 34 year-old case law in Clackamas County v. Holmes, 265 Or. 193 (1978). But, the analysis is vexing because very few local governments and courts are getting the analysis right. However, with each new decision, the Court of Appeals and Oregon Supreme Court are attempting to clarify how local governments and trial courts should consider the application of the Holmes factors necessary to make a vested rights determination.

The Holmes factors are:

1) The ratio of prior expenditures to the total cost of development;

2) The good faith of the landowner in making the prior expenditures;

3) Whether the expenditures have any relationship to the complete project or could apply to various other uses of the land; and

4) The nature of the project, its location and ultimate cost.

As the attorney for Friends of Yamhill County, Ralph Bloemers, aptly labeled them, those pesky “Ghosts Of Measure 37” are likely to haunt rural areas for years to come as a result of the Oregon Supreme Court’s recent ruling in Friends of Yamhill County v. Yamhill County.  This case marks the first time the court has considered the scope of common law vested rights since its ruling in Holmes v. Clackamas County, over 40 years ago.  The Holmes court identified six factors that must be considered to determine a property owner’s rights to continue construction when land use laws are enacted that would make a partially finished project unlawful.

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