Getting the facts straight on saving the Metolius

I'm thrilled that the state legislature has passed HB 3298, which will stop destination resorts from ruining the mostly unspoiled Metolius River basin in central Oregon -- which my wife and I visit regularly.

But it's disturbing that misinformation about the basin being designated an Area of Critical State Concern keeps being thrown out by the Portland Oregonian, Bend Bulletin, and other news sources (both in editorials and supposedly unbiased stories).

So I want to get some facts straight.

(1) HB 3298 isn't a end run around the state's land use system. Instead, it makes use of the Area of Critical State Concern designation process that has been part of Oregon law since 1973, when the legislation that enacted statewide land use planning (SB 100) was enacted.

The Oregon legislature first authorized the designation of an Area of Critical State Concern (ACSC) as part of the legislation creating the statewide land use program (Senate Bill 100) in 1973.
 
At that time, several areas were identified as possibly warranting state protection in the face of uncontrolled development, including the Columbia River Gorge, areas of the Oregon Coast, and portions of the Metolius basin. Several of these areas were later protected through federal action, or through special state land use goals.
 
While the Metolius area was not immediately protected, Jefferson County did plan most of the basin as forest lands – limiting further development to forest-related uses.

(2) The "Jefferson County approvals" that are being overturned are the work of only three people. A recent editorial in the Oregonian makes it sound as if the citizens of Jefferson County were behind the push to rezone forest lands so destination resorts could grow there instead of trees.

Actually, the rezoning was initiated by three county commissioners. Repeat, three.

That's all it takes to change long-standing land use policies on private land in the Metolius basin: three people (actually, just two, since they constitute a majority on the board of commissioners).

Yes, public hearings were held on the proposed rezoning. But the commissioners don't have to follow what the public wants, only hear what citizens have to say.

So even though residents of the Metolius basin spoke overwhelmingly against the destination resorts when a hearing was held in Camp Sherman, that didn't matter to the three commissioners. They approved the rezoning anyway, against the wishes of locals.

(3) Those seeking to build the destination resorts haven't gotten final land use approvals. Reporting and editorials on this issue often make it sound like the resort developers were all ready to start construction before the nasty legislature put a road block in their way with HB 3298.

Not true.

No rezoning has occurred, because an appeal of the Jefferson County action is still before the state Supreme Court (see Carla Axtman's excellent summary of the destination resort timeline here).

Now, there's a close connection between the legal notion of "vesting" and the attempt to paint Metolian developers Shane Lundgren and Jim Kean as unfairly treated by HB 3298. (Vesting refers to when construction is far enough along to be "grandfathered in" when a land use law is passed that would prohibit the development.)

This year the Oregon Court of Appeals issued a ruling in the Cyrus case. Here's an excerpt from a concurring opinion in the ruling by Judge Sercombe.

I am not aware of any Oregon cases in which a property owner has acquired "vested rights" where construction was undertaken and partially completed while the right to begin construction was itself at issue in pending litigation. 

Meaning, if a property owner moves ahead while appeals of the decision that approved the development are being considered, that's "bad faith" -- because it reflects a disregard of our legal system. More from Judge Sercombe:

The general common-law rule is that "[a] landowner lacks the requisite good faith when he proceeds with construction before an appeal period has expired."

In the case of the destination resorts, no on-the-ground construction has occurred. However, editorials have said that Kean spent big money (millions, if I recall correctly) on his plans, believing that he had a go-ahead for development.

If this is true, he's a poor businessman, because Kean and Lundgren don't have any final land use approval yet. And it is bad form (plus bad faith, legally) to press ahead with development when appeals haven't been exhausted.

Well, this doesn't get me to the bottom of the barrel of inaccuracies that have been spewed about the Metolius-saving legislation. But at least I've corrected some of the most egregious untruths that have been spread about.

I'll end with a You Tube video that I took today as I walked with my wife (Laurel) and dog (Serena) on a hike along the Metolius River -- downstream from the Camp Sherman store.

As I stroll along I talk about how great it is that the Metolius has been protected from the destination resorts, and mention reasons why HB 3298 needed to pass.

The best part of the video, of course, is the Metolius -- one of the nation's most beautiful rivers.

Comments

[Carla Axtman]

Great post, Brian.

I think one of the more compelling pieces of this is the spending of "millions" by the land speculators. What did they spend this "millions" on? They had no permits or applications to file because they don't have zoning rights. They haven't moved a single spade of dirt.

So where did all that money go? I suspect lobbyists and PR for the most part. But it sure would be fascinating to find out.

[Brian]

Carla, excellent point. The same thought went through my mind. I can see spending a few hundred thousand dollars on planning, design, and siuch. But a few million? That seems extreme, though, as you said, lobbyists and PR expenses could account for a lot of it.

[Eric]

Excellent post!

1. You did a great job not only writing about the Metolious but actually showing what a beautiful river and area it is. That should win some people over!

2. I absolutely LOVE the scene of your dog NOT retrieving! That was priceless!