17-Year Land Use Battle Update

By Margaret Goodwin

Two months ago, I wrote an article on an Oregon family who’s spent 17 years fighting land use activists and government bureaucracy to get their property rezoned to its original zoning classification. On October 6, justice finally prevailed. — At least temporarily.

This case is a textbook example of how land use activists manipulate the system, driving up costs and dragging out the process in a calculated strategy to exhaust the resources of potential developers. When an individual who just wants to develop his own private property can no longer afford to fight back, the land use activists win by default. Their case doesn’t have to have any merit; all they have to do is outlast their victim. The deck is stacked in their favor. The appeals cost them very little, while the property owner has to spend hundreds of thousands of dollars to meet whatever challenges they raise and satisfy an ever-increasing burden of proof.

To recap, this land was originally zoned Rural Residential with a 5 acre minimum (RR-5). In 1985, it was rezoned to Woodlot Resource based solely on its size and location and the fact that it had not yet been developed. However, due to the soil composition, the land isn’t suitable for timber timber production. When a soil analysis was actually performed, it was determined that the Woodlot Resource zoning was a misclassification.
Ordinarily, in a case like this, it’s a simple matter to revert the zoning to its original classification, and that’s what initially happened. Seventeen years ago, the Josephine County Board of County Commissioners approved the property owner’s request to revert the zoning to RR-5. However, that didn’t sit well with local land use activists, who oppose all new development and will go to any lengths to prevent it.

They appealed the decision to Land Use Board of Appeals (LUBA), based on technicalities that weren’t related to any deficiencies in the case at hand, but rather to deficiencies in county zoning code descriptions. Nevertheless, every new appeal, and the subsequent hearings, raises the ante for the property owners, who have to hire land use consultants, surveyors, soil scientists, and legal representation. And it costs the county a lot of money, too.

Realizing the land use activists would never give up, the county decided it would be easier to appease them than to fight them. So they started raising the burden of proof on the property owners, in hopes that they would be more likely to back down. However, the property owners had right on their side and they knew it. Last March, the county created a new ad hoc zoning classification of RR-15, arbitrarily limiting the number of houses that could be built on the property from about 30 to a maximum of 10. This appeased the land use activists, but it turned out not to be legal. A new hearing was granted and scheduled for October.

At the new hearing, the property owners were required to satisfy an even higher burden of proof on the carrying capacity of the land, in addition producing a subdivision plan, which is normally not required in a zoning hearing. They anted up $30,000 for the subdivision plan and dutifully brought forth a new slew of experts who testified on soil composition, slope, traffic, well capacity, riparian setbacks, etc. They met every challenge, satisfied every requirement, and made it clear they were not giving up. Members of the local sub-chapter of Americans for Prosperity also showed up, and spoke out on the benefits of the development to the community, the jobs it would create, and the property tax revenue it would generate for the county.

The leader of the land use activists (who had not attended the August hearing because he was in jail for violating a restraining order) threatened, in front of witnesses, to rip the head off of one of the people speaking on behalf of the property owners. The Sheriff was called and arrived to take a report. But, after all the drama was said and done, the Board of Commissioners finally did the right thing, and voted to grant the rezoning to RR-5.

The land use activists immediately declared they would appeal the case to LUBA again, so the property owners will once again have to ante up for a land use attorney to represent them. Assuming they win the appeal, the next step will be the subdivision plan review, with all the pre-application fees, application fees, and permit fees that entails, with the land use activists challenging them at every step of the way.

It has taken this family 17 years, and cost them over $400,000, to get this far. Who knows how much longer it will take, or how much the total costs will run, before they’ll finally be allowed to use their own private property in accordance with its original and appropriate zoning?

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Posted by at 05:53 | Posted in Measure 37 | 12 Comments |Email This Post Email This Post |Print This Post Print This Post
  • sagano

    You know things are getting out of hand when citizens threaten each other in public. There is no need for that.

    • Alan

      All the more reason why our land use laws need to be fair.

  • Rupert in Springfield

    This is a little like the age old reason of why compromise works with some things, but not with things involving rights.

    If I want to buy something from you for fifty cents, and you want to sell it for a dollar, compromise is possible because we have both brought something to the table, both of us lose something, both gain something.

    If the question involves ones rights, in this case property rights, compromise is never possible because the person whose rights are being ceded brings everything to the table. The person looking curtail the rights brings nothing to the table except an ultimate goal – possession of the others rights, if he loses, he loses nothing but the time involved in his pursuit.

    In the case of property rights, what do the land use activists give up if compromise is achieved? Nothing, since they have no stake in the battle just an ultimate goal, control over your land. If they don’t get everything they want right away, they can simply come back again.

    It would be nice to see this dynamic change. For a start it would be nice for land use activists to have to prove standing. I would like to see this held to a really strict standard, showing direct financial impact on someone. For another, it would be good if damages because of their actions would be immediately assumed. If they lose I think it should be a de facto judgment that all cost incurred by the property owner due to the activists actions should be payable. To assure this a bond should be posted by someone bringing this sort of challenge in the amount of the estimated costs of that challenge. If they challenge soil conditions, the owner would perform tests, the activists would put up a bond to cover the costs of those tests should they lose.

    This seems reasonable to me as surely it could not be argued to be a financial burden. If the costs of ensuring the use of ones lands to the satisfaction of random activists in the case of a suit is assumed not to be too an undue burden for the land owner, as is the case now, then surely the reverse of such must also be true. So, in the spirit of true COMPROMISE – Let the activists operate under the same financial burden as the land owner.

    • Margaret Goodwin

      That’s an excellent point, Rupert. If the land use activists had to risk what the property owner has to spend to defend himself against their spurious challenges, I suspect there would be a lot less abuse of the system.

      • Alan

        Is there not a bigger monetary investment a person makes outside of their property? It represents people’s life savings.

  • Randy Howerton

    It’s just wrong that an activist can have so little invested, yet be able to thwart, and most times stop completely, a legitimate project. When these activists lose, they should be liable for the costs incurred by the landowner. That would greatly lessen these occurances.

  • Apemantus

    These “land use activists” sound a lot like “community activists” in that their main purpose seems to be controlling other people, and taking control of the resources that belong to other people. They’re thieves who are proud of their work. They’re certain that they are more ethical than the rest of us, and their certainty is very dangerous.

    • Larry Paradise

      Environmentalists = Land use activists = Community activists = Community organizers = Loss of our freedom.

      This country is being led down the road by many that have, and never will, make a contribution to society on their own. It seems that there are many that have come to the conclusion that what is ours should be theirs for no other reason than that they were fortunate enough to have been born or live in the United States.

      • Larry Paradise

        Oops, correction needed:

        “This country is being led down the road by many that have,…..”

        should have been

        “This country is being led down the road by many that have *not*, …….”

  • Ron Glynn

    It is hard to believe that an average American like Mr. Ockenden can get so screwed over by the system. I served in the US military along with everyone else so individual rights could be protected, not to have then trampled over by a government bureaucracy. Mr, Ocenden deserves to be treated fairly. It appears that a few individuals acting as activists is all that it takes to prevent a decent hardworking man from getting ahead in life. Talk about the tail wagging the dog. This whole thing has been a travesty. Mr. Ockeden is better man than I am for fighting this long, not only for himself, but the principles that made America great in the first place.

  • Craig Myers

    Land use activists should have one opportunity to state their case. They should not have the right to steal people’s property rights with the help of LUBA.

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