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