The following is an essay I put together trying to explain why the "vesting of rights" of M37 claimants is a BIG deal. 
THE OREGON OXYMORON
Measure 49 in Context
by Jack H. Swift, Esq.
One might reasonably suggest that Measure 49 is almost un-Constitutionally vague and ambiguous. This is particularly true where it comes to the provision for protection of vested rights that might have accrued under Measure 37.
Measure 49 proclaims that there is a carried-over right to proceed under the waivers where one can demonstrate a common law vested right to do so. Measure 49, however, does not define a "vested right." Worse, it limits such vested right in terms of the common law. Measure 49 then likewise fails to define "common law." These concepts might sound simple but they are engulfed in a sea of ambiguity.
An initial issue of debate and litigation in the State and Federal courts in Jackson County relates to the question of what right is vested? Is it the accrual of the cause of action established under Measure 37 to recover monetary compensation for the regulatory diminution of the value of one's property by the imposition of regulation subsequent to one's purchase of the property? Is it the right to enforce a contract between the County and the claimant established by way of Measure 37 waivers? Is it the traditional land use right grounded in concepts of equitable estoppel to finish what one has begun? If it is the traditional land use interpretation, how does that square with the proclamation of both Measure 37 and Measure 49 that decisions undertaken pursuant to either are not land use decisions?
"Common law" in one sense relates to the distinction between the controlling decisional law (case law) of a jurisdiction as opposed to its statutory law. In that regard, an interesting legal debate arises in that in general practice, specific statutory law traditionally trumps case law. The initial ambiguity in Measure 49 is its apparent attempt to establish case law as controlling statutory law. Thus, Measure 49 apparently calls for case law standards in the vesting determination process in spite of Oregon's existing statutory law (the goalpost acts) which establish a bright line test for vesting of land use rights as opposed to equitable considerations. The legal validity of such establishment is currently under litigation in the Deschutes County courts.
A secondary question regarding the "case law" interpretation is "the case law of what jurisdiction?" Does Federal case law trump State case law in the eyes of the statute? Is State case law limited to Oregon case law or is one to look at the overall national body of law? Or does one look beyond that in this common law analysis?
"Common law" also applies to some five centuries of legal tradition under the so-called English common law system of justice. Oregon law unfortunately, in the area of land law, has evolved into an inherent contradiction of our traditional legal concepts of land ownership and use. In our legal tradition, the primary indicia of land ownership are the right to enter the land and the right to use the land. (The power to effectively sell the land is a function of the right to use it.) Title to the land is simply documentary proof of those rights.
However, the common law recognized that circumstances could arise wherein there could be a sharing (and potential conflict) of those rights between a titled owner and a user who happened to be a stranger to the title. Frequently, situations arise where a titled owner allows a stranger to the title to use a portion of the land, perhaps as a road. The stranger through prolonged usage develops a justifiable reliance upon the availability of that usage. In that circumstance, whose right should prevail? To resolve that conflict, the common law evolved the concept of easement, whereby a servitude was imposed upon the land itself, regardless of who owned it, whereby the right of usage is vested in the hands of strangers to the actual title. That is the traditional English common law system of land ownership.
In Oregon, the State's legislated Comprehensive Land Use Planning Program has turned that legal tradition upside down. In Oregon, ownership of the land is not to be confused with the right to use the land. The right to dictate the use of the owner's real property in Oregon has been usurped by the State's Department of Land Conservation and Development. The right to use the land has become not a function of ownership but, rather, a license granted by the DLCD.
In the Oregon system, the question of whether the titled owner and possessor has acquired a vested right to use his own land is, in a real sense, equivalent to creation of an easement in the owner. Perhaps what the common law might call an "inverse easement?"
The fact is that there is no such legal instrument in the common law of land ownership. The entire idea is contrary to centuries of legal tradition. And therein is the Oregon Oxymoron.
If you believe that the ownership of private property still includes the right to use that property as one sees fit, limited only by a duty not to do injury to one's neighbor, the ratification of M37 waivers as contracts is a VERY BIG DEAL.
 
 
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