Family spends 17 years fighting for original use of their land

By Margaret Goodwin,

Some people invest their life savings in stocks and bonds, others sock it away in bank accounts to pay for their kids’ education and their retirement. Seventeen years ago, the Ockendens invested their savings in a 158 acre parcel of land in a rural residential area in Josephine County, where they live. No investment is risk-free but, after careful consideration, this seemed like a wise investment. After all, land has intrinsic value, enduring despite fluctuations of the market and the economy. Given the recent housing boom in this area, one might say the Ockendens had a lot of foresight. Unfortunately for the Ockendens, instead of reaping the rewards of a wise investment, they’ve spent 17 years battling bureaucracy and local land use activists to establish the right to use their property as it was originally zoned to be used.

The Ockendens’ land was originally zoned Rural Residential with a 5-acre minimum lot size (RR-5). In 1985, based solely on the size and location of the parcel, the land was arbitrarily rezoned to Woodlot Resource, along with many other large parcels of undeveloped land throughout the county. The purpose of the mass rezoning was to prevent the development of land that could be used for forestry and agriculture. However, there was no on-site investigation of the suitability of the land for that purpose prior to its rezoning.

Subsequent analysis by soil engineers determined that, due to the nature of the soil composition (decomposed granite), the land is not suitable for forestry or agriculture. The trees that natively grow there, Madrone, Manzanita, and scrub oak, cannot be used for timber. Further analysis by geologists and surveyors confirmed that the land is suitable for development, in accordance with the original Rural Residential 5-acre zoning classification.

Based on copious evidence presented by experts in their respective fields, the Josephine County Board of County Commissioners finally ruled that the Woodlot Resource zoning was a misclassification, and acknowledged that the only purpose for which the land can be profitably employed is rural residential development. Ordinarily, under such a circumstance, the land would have automatically reverted to its prior zoning classification. But, in this case, consistent with the Ockendens’ experience over the past 17 years, there was significant political opposition from local land use activists who don’t believe in private property, and whose ring-leader happens to live on the same road as the Ockendens’ property.

The land use activists packed the hearing, mounting objections, speculations, and emotional pleas, claiming the slope is too steep for development, the carrying capacity of the road would be exceeded, developing the land would negatively impact the environment, and anything else they could toss out. The Ockendens’ representative pointed out that several developments had been recently approved on parcels with significantly steeper slopes, and that the neighboring properties, having the same site characteristics, have already been developed under RR-5 and
RR-2.5 zoning with no ill effects. The road is a main thoroughfare between two towns north of Grants Pass. The county surveyor and a county roads department engineer provided evidence that a development of up to thirty new homes will not stress the carrying capacity of the road. They also confirmed that the slope of the land can be successfully graded for new roads within the development without entailing hazards or environmental risks.

Though well-organized and persistent, the land use activists have presented no hard evidence or expert opinions to substantiate their claims. Yet, for 17 years, they’ve gotten away with employing their customary tactics of dragging out the process and raising the bar on the burden of proof until their victim can no longer afford to continue fighting.

At that hearing, the BoCC tried to reach a compromise that would appease the activists by inventing a new ad hoc zoning classification of RR-15, arbitrarily restricting the minimum lot size to 15 acres, so that no more than 10 homes could be developed on the property. The land use activists applauded the ruling. They felt that they had won. The Ockendens were gloomy. After investing 17 years and most of their financial resources in hiring land use consultants and experts to satisfy the ever-expanding burden of proof demanded by the land use activists, they would barely recoup what they’d spent. None of the credentialed experts found any justification for restricting the capacity of the parcel to 15 acres per lot. All of the expert opinions concur that the carrying capacity of the land is consistent with RR-5 zoning.

On Monday, August 4, a public hearing was held at which the Ockendens petitioned to re-open the land use hearing so they could present yet more evidence to address the “new” concerns raised at the last hearing that purportedly prompted the commissioners to impose the unique 15-acre restriction on development of their property. The land use activists, naturally, opposed re-opening the hearing. But, this time, members of the local sub-chapter of Americans for Prosperity attended the hearing and spoke in support of allowing the new evidence to be heard. The leader of the land use activists was not able to attend, having been arrested over the weekend for violating a restraining order, unrelated to this case.

The BoCC ruled in favor of re-opening the hearing. At the new hearing, the Ockendens have been ordered to present a complete development plan, which will cost them about $30,000 to prepare. Ordinarily, one doesn’t present a development plan until one is ready to develop the property. If the Ockendens’ property is not re-zoned, the money they spend on an RR-5 development plan will be wasted. Furthermore, it’s unnecessary to present a development plan before re-zoning the property because simply changing the zoning doesn’t grant any development rights. There’s a whole separate approval process for development plans. So, after 17 years, the Ockendens’ battle continues, and the ante has been raised once again.

Article Source: Oregon Tax News

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Posted by at 09:37 | Posted in Measure 37 | 10 Comments |Email This Post Email This Post |Print This Post Print This Post
  • Jared

    Say I invested my savings in electric cars. The government then comes in, and without looking at my independent company, changed the rules and gave a huge tax break to gas cars (in this case, SUVs). There is no independent analysis, and yet my investment is gone. One would think it’s the same thing, no?

    Investments are risks. Rules change. Life’s unfair. Get over it.

    In this case, it seems they can still build a 10 unit subdivision. How much money do they need to make?

    • Jay Bozievich

      Jared, Your example is not relavent. Private property is not same as stock in a particular company. Tax rule changes are not the same as removing inherent rights. Let’s try a fairer comparison:

      You purchase 100% of the stock in an electric car company, then government declares that you cannot split your stock or sell it in a block smaller than your original purchase. At the same time, they decry that you can do nothing to improve the electric car company from the condition you originally purchased it in. Would you consider that legal? Would you think your rights had been abridged?

      • Jared

        Dude — they CAN BUILD at least ten houses on their land. i.e they can improve it and subdivide it and all that…

        So to equalize your hypothetical, I could sell stock chunks of 10% of the company. And I could improve my company.

        The government, the market, and neighbors always do things that will affect my stocks, my property, my income, my taxes. Things change.

        • Jay Bozievich

          Your use of the salutation “Dude” says more than I can write here to explain how far off the mark you are going with your logic.

        • Apemantus

          Dude, who are you to decide that ten houses are enough (on 158 acres)? Do you live on 15 acres? If you had 15 acres, would you want the right to sell three 5 acre lots? Is that unreasonable? Or would you prefer having a government entity or a committee decide how much money you should be able to make on YOUR land? Your Dudeness, think this through a little bit. You might enjoy the process.

  • Margaret Goodwin

    Jared, things do change. Owning land has inherent risks. A natural disaster, such as an earthquake, could diminish the value of one’s property. Natural disasters are unpredictable and unavoidable, but government should not be. At least one can insure one’s property against natural disasters. Where can you buy insurance against the whims and errors or arbitrary regulation?

    The zoning was originally changed _in error_. The government already conceded that. The WR zoning was not appropriate to the land. Once they conceded they had made a mistake, it was arbitrary (and I’m not sure even legal) for them to invent a new zoning classification on the spot. They only did that in an attempt to appease the land use activists, who had already drawn out the process for 17 years, costing the taxpayers, as well as the property owners, more money at every hearing.

    Elected officials shouldn’t bend over backward to accommodate those who use intimidation tactics at the expense of the law-abiding private property owners who have a legitimate interest in the land.

    Furthermore, if this land were developed in accordance with the appropriate zoning, it would provide a lot of new property tax revenue for the county, which is badly in need of it. The decision to invent a new zoning classification (which does not apply to any other property in the county) is not only arbitrary and unjust, but against the best interests of the citizens and taxpayers of the county.

  • John in Oregon

    One of the key take aways of this story is this paragraph.

    — “Though well-organized and persistent, the land use activists have
    — presented no hard evidence or expert opinions to substantiate their
    — claims. Yet, for 17 years, they’ve gotten away with employing their
    — customary tactics of dragging out the process and raising the bar on
    — the burden of proof until their victim can no longer afford to
    — continue fighting.”

    An unrelated parallel story will provide illumination.

    Some years ago Oregon had a major forest fire known as the Biscuit fire. Lets focus on the aftermath, ignoring the forestry practices which created the fire, basically, Humans are evil, Mother Gaia is good.

    After the fire the Forest Service proposed to salvage log and replant a few percent of the burn along existing roads. The result was an enviro lawsuit against the Forest Service.

    As it happens I heard a long form interview with one of the enviro attorney spokesman. There was a lot of “if we cut the dead trees then the land will slide” kind of nonsense. But one exchange really stood out.

    The host / reporter happened to ask if the enviro lawyer really had a case. The response was shocking. Paraphrasing, the enviro attorney spokesman said.

    We don’t have to be right, we don’t have to have a case. We don’t even have to win. All we have to do is delay until the timber is no longer salvageable.

    In the years after the fire the following happened. The law suit was eventually dismissed. Another enviro group filed a law suit, which was also dismissed. Then Governor Kulongoski filed a third lawsuit. That third lawsuit was never decided because by the time it finally got to court the timber was no longer salvageable.

    In the news last night was the spread of the West Nile virus into Oregon. Few recall the first introduction of the virus into the United States.

    The virus was found in New York in the form of a very small outbreak. To their credit, New York state and city public health officials know they could stop the virus cold if they moved quickly. West Nile symptoms are often mild but for a guaranteed percentage of cases, absolutely deadly.

    To stop it they needed to knock down the mosquito population to prevent the virus being established in the local wildlife population. BT a natural insecticide of low persistence and high safety record was chosen.

    The result. You guessed it. An enviro lawsuit. In court the public health officials emphasized the deadly nature of the virus. On the court house steps the enviro lawyer spokesman responded to the media, saying the deaths were overblown as it was only the elderly and sick that died.

    Across a broad spectrum of activities this pattern is consistent. In the name of mother Gaia Delay, Deny, Law Suit, and Block.

    Land use planing; deny and limit property rights and development.
    Forestry management; delay sound management practices.
    Fish management; block effective management.
    Energy development;
    — Eastern Oregon wind; Law Suit.
    — Southern Oregon geothermal; Law Suit.
    — Northwest coast tide generation; Law Suit.

    At one time we recognized these people for what they are. We even had a name for them, we called them Saboteurs.

    • Margaret Goodwin

      John, you’re absolutely correct. In fact, the local ringleader of the land use activists fighting to keep the Ockendens from developing their land has a history of such tactics. He has even admitted publicly that the whole purpose of his numerous land use appeals is to drive up the cost of development to the point where it’s impractical to pursue.

      Unfortuntately, his tactics not only drive up the costs for the developers, but for the taxpayers as well. He was recently ordered by the court to pay $8,000 to the city of Cave Junction to cover court costs for one such case. Despite the fact that most of his land use appeals are eventually dismissed, the protracted delays and exhorbitant costs of fighting the legal battles he pitches often have the desired effect of stymying development.

      His local disciples see him as a heroic figure, doing battle against evil land barons. But the Ockendens are not big land developers. They are private citizens who own one parcel of land, in which they invested to secure their family’s future. It’s my personal belief that the reason he’s so focused on this case is because it would undermine his own mythology if he’s unable to block a development right on the street where he lives. IMHO, that’s why he’ll go to whatever lengths necessary to win this one. Not because of the public good, but because of his own insatiable ego.

      It’s disgraceful that the elected officials of the county don’t have the fortitude to stand up to him. The more he gets away with these kinds of tactics, the more it encourages him and his entourage to employ the same tactics in the future.

  • Randy Howerton

    The environmentalists have so much power, they can dictate results, or tie up indefinitely through the litigious process. The Ockenden’s don’t deserve another minute of this. The Board must restore their zoning to RR-5, as soon as possible, in the interest of what’s left of fairness.

    I wonder if the county could be held liable for the damage they’ve done to this family, through unjust practices.

  • dean

    I have no opinion one way or the other on the case, but would point out two things that are questionable within the post. First, granitic soils are common in southern Oregon and commercial forestry takes place on them in many areas, thus they are suitable for forestry. Second, if that land grows madrone trees then it probably also grows pine and fir. They all grow on the same types of sites in that part of the woods. So the basic premise that the land is not suitable for commercial forestry is probably wrong.

    I would hazard a guess that the land is covered with madrone and manzanita (a shrub, not a tree, thus another error in the post) because it was logged badly in the past and not replanted. If the owners do end up building 10 or 50 homes in a manzanita patch, they are basically building a fire hazard that may get someone killed.

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