Since Measure 49 passed last year, a number of property owners attempting to proceed with Measure 37 claims have found themselves in legal quicksand. This week, a judge in Clackamas County tossed some of them a rope.

M37, which voters approved in 2004, allows property owners to manage their land under the rules that existed when they bought it. In practice, the measure has allowed people to subdivide property protected by land use laws.

M49, which voters approved last November, drastically reduces the scope of M37. It allows property owners to build a small number of homes on their property — even if it covers many, many acres. But no more mega-subdivisions in forests or on agricultural land.

M49 undoubtedly dashed the hopes of some who’d hoped to develop their property under its more permissive predecessor. But it threatens to do real harm to those who’d actually begun the process. Many of these people had sought and received the M37 waivers necessary for development, and some had even begun to pour money into their projects. Then, along came M49 to mess everything up.

For property owners caught in the middle, M49 contains a provision designed to ensure fair treatment. Those whose M37 projects are “vested” may complete them, regardless of whether or not they’d otherwise be allowed under M49. In order for his project to be “vested,” a property owner must have sunk a certain amount of money into it in “good faith.” Good faith, meanwhile, is a function of the date by which the money was spent.

That date can make all the difference, as Maria and Laura Harry, a pair of Deschutes County property owners, could tell you. After living on their land for more than 80 years, they decided to develop it and make some money. To that end, they sought and obtained the necessary M37 waivers. However, a Deschutes County hearings officer slammed the lid on their project after the passage of M49. Why? Because, the argument went, they hadn’t spent enough money prior to the “good faith” deadline, and therefore were not vested.

The good faith deadline is supposed to discourage people from pouring money into a project simply to beat a deadline they know is on the way. The deadline used by the hearings officer in the Harrys’ case is June 15, 2007, the date the Legislature agreed to put M49 on the ballot. Any money they spent on their project after that date was supposedly spent in bad faith.

That’s ridiculous, of course. On June 15, 2007, M49 was nothing but a proposal. Yet a dollar spent on June 16 demonstrates bad faith because voters five months hence had the option to make the proposal law.

If the Harrys are a little blue these days, they ought to read an opinion released this week by Clackamas County Circuit Court Judge Timothy Alexander. The judge decided the plaintiffs, for unrelated reasons, were not vested. But this is what he had to say about the good faith deadline: “Anyone who claims to be able to predict the outcome of a vote on a ballot measure in Oregon should buy a Megabucks ticket. It was reasonable for plaintiffs to continue with development until Measure 49 actually became law.”

Will the June 15 Megabucks deadline honored in Deschutes County ultimately hold up in the state’s courts? We wouldn’t bet on it.