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?