County Commissioners will deliberate Tuesday on whether Charles Fischer had invested enough money before Measure 49 was enacted to be allowed to continue with his plans to divide his 30-acre former orchard into seven parcels.

Fischer is appealing a decision by the county Planning Commission, which decided last month that Fischer had not invested enough money to proceed with the project at his Lewisburg area property northeast of Corvallis.

Fisher said the denial has left him caught between 2004’s Measure 37, which allowed rural landowners to seek waiver or compensation if Oregon’s land-use laws restricted the value of their land, and last year’s passage of Measure 49, which restored many rural landuse restrictions.

Fisher, 85, said he’s almost out of money, and had planned to use the money from dividing his land for housing lots to pay his wife’s $5,000 monthly nursing home bills.

The case is testing how the county will apply Measure 49, Oregon’s newest land use law, which seeks to limit development on rural property.

The issue before the planners now is how to determine when a landowner is “vested” — the point at which a developer has invested enough money in a project before the rule change to be allowed to continue. County planners have admitted that the issue is a gray area for landowners and planners.

According to Fischer’s records, he spent $67,000 in surveying, petitioning the county and state for a Measure 37 claim on property at 6455 N.E. Pettibone Drive and filing the required planning and building paperwork.

By his calculations, Fischer said he has already spent 17.7 percent of the subdivision’s $378,214 budget on waiver fees, platting fees, erosion permits, wetlands delineation and survey work.

The county saw it differently, however and found that the courts have ruled vesting is to be determined on the amount of money required to establish the entire project.

Based on a median house price of $280,000 for each of the lots, the county estimated the subdivision’s total cost at $1.76 million, leaving Fischer out just 3.8 percent of the total amount.

If you go

What: County Commissioners will decide if Charles Fischer has invested enough money in developing his N.E. Pettibone Drive property to proceed with a subdivision under a Measure 37 waiver.

When: Tuesday at noon

Where: Benton Plaza Meeting Room, 408 S.W. Monroe Ave.

Matt Neznanski can be reached at 758-9518 or matt.neznanski@lee.net.