Nearly 90 acres of farmland in Oregon’s Yamhill County cannot be subdivided into home sites under ballot initiatives that eased land use restrictions, according to the Oregon Court of Appeals.

The ruling overturns a determination by the county government that owners of two properties in “exclusive farm use” zones had “vested rights” to carve them into about 50 salable residential lots.

While the properties qualified for relaxed land use restrictions under Measures 37 and 49 — passed in 2004 and 2007, respectively — the landowners aren’t allowed to sell the subdivided parcels to others who plan to build homes, the ruling said.

Under Measure 37, county governments had the choice of waiving land use regulations enacted after landowners bought their property or compensate them for the resulting loss in value.

Three years later, Measure 49 scaled back those waivers to 3 to 10 homes per parcel unless larger subdivisions had already been developed enough for the landowners to earn “vested rights” to finish them.

Ralph and Norma Johnson were found by Yamhill County to have “vested rights” under Measure 49 to subdivide about 50 acres into 41 lots based on their Measure 37 waiver, even though they didn’t intend to construct the actual houses themselves.

The county’s reasoning was affirmed in Yamhill County Circuit Court, but the Court of Appeals has now determined that decision was wrong because Measure 37 waivers only applied to the original landowner — not to the property.

As soon as the landowner sold the property, the new owner became subject to the existing land use restrictions at that time, the ruling said.

“That is, as long as a claimant owns the property, the use described in the claimant’s Measure 37 waiver is lawful. When the claimant sells the property, current zoning regulations apply and prohibit all but farm use,” the ruling said.

Because Measure 49 didn’t expand the rights provided under a Measure 37 waiver, the original landowner must build the actual homes rather than subdivide with the intention of selling “buildable” lots to others, the appellate court ruled.

The Court of Appeals has found that landowners with Measure 37 claims had “exclusive control” to construct homes “because the only obstacle to completing the use is one created by claimant him- or herself, when he or she sells the property to someone who lacks the right to complete the use.”

The ruling also applies the case of landowner Gordon Cook, who owned a 40-acre “exclusive farm use” parcel in Yamhill County that he’d received permission to subdivide into 10 lots under Measure 37 and 49.

I've been working at Capital Press since 2006 and I primarily cover legislative, regulatory and legal issues.

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