A staggering literary work of land use appeal genius

(Couldn't think of an original blog post title. Brain fried from writing brilliant land use appeal document today. Plagiarism credit goes to Dave Eggers.)

If you ever wanted to know why a Measure 37 subdivision on groundwater limited farmland shouldn't be approved — and I know there are a few land use nerds out there in the blogosphere who eat this stuff up — today I wrote five pages that would even convince Dave Hunnicutt, President of Oregonians in Action.

That's how good my reconsideration request to the Marion County Board of Commissioners is. If you don't believe me, read it and be convinced that the commissioner's 2-1 decision to approve a 42 lot development in the south Salem hills was deeply flawed. Download reconsideration_request3.doc

It took me a couple of hours to write this afternoon. Laurel and I have been going back and forth on a reconsideration request. We tried to ask for a reconsideration at the Board of Commissioners June 20 meeting during the public comment period, but were rebuffed.

I'd written up six minutes of beautiful convincing arguments (you get three minutes to make a public comment). But I'd only gotten about six seconds into my talk before the chair and county attorney shut me down. How were we supposed to know a reconsideration request had to be in writing?

We're just land use activists trying to keep our neighborhood's wells from going dry. We're part of what the Bus Project's Jefferson Smith calls "the coalition of the benevolently irrational."

Meaning, we spend many hours and many dollars fighting to stop a Measure 37 subdivision for no reason other than it's the right thing to do. True, the creek that could go dry if the subdivision sucks up water that supplies Spring Creek flows through our property.

But the benefit we'd get from protecting the groundwater is far, far less (monetarily, at least) than the millions Leroy Laack and his partners hope to gain from selling 42 lots.

That's why we're "benevolently irrational." I spent the bulk of a sunny summer afternoon glued to my word processor when I could have been doing something a lot more pleasant.

So the next time someone leaves a comment on one of my Measure 37-related posts along the lines of, "You're a selfish Prius-driving, property rights-hating, I've got mine-ing jerk who doesn't want anyone else to enjoy a rural lifestyle like you do," (I get comments like that frequently) I'm going to point them to this post.

Yeah, I sure am selfish. I spend tons of time trying to fight this threat to our neighborhood's groundwater even though winning this battle will benefit my wife and me minimally. We don't live right next door to the proposed subdivision, though some of our friends do.

If their wells go dry, we'd be seriously bothered. So that's a big part of our "selfish" motivation—helping others.

And as for that enjoyable rural lifestyle, the past few months a big part of it has involved sitting in Marion County hearings, researching well problems in our area, organizing neighbors, fundraising for a Keep Our Water Safe committee, and writing up reasons why the subdivision shouldn't be approved.

Most recently, brilliant reasons. I should have the first year of law school waived for today's reconsideration appeal beauty. Here's hoping that the Marion County Board of Commissioners will recognize a staggering work of land use appeal genius when they see it.

Seriously now (as if I wasn't before), we've got the law, facts, and common sense on our side. Like I say at the end of my five pages:

Please reconsider your decision. We and over a hundred neighbors want to have our water protected. We're not against development. But we're definitely against excessive development that dries up our wells and lake.

Comments

[Robert Canfield]

I realize this issue is extremely personal to you and your neighbors, but I'd suggest removing comments about how much you and your neighbors spent or "donated" on this land use issue. It distracts from your argument. It's much better to stick with the facts and the law relating to the land use decision.

My opinion only. . .

[Richard]

I am not sure I understand Robert's concern about donations. The point I gain from the paragraph is the extent to which citizens have had to spend of their own time and treasure to attempt to do work that ought to be the responsibility of the County.

The decision the County reaches, as you point out, is too often a function of how deep one's pockets are.

I long ago learned as a civil servant that one not only must be fair, but have the appearance of being fair.

For a long time, I thought that was merely the requirement to show crocodile tears while carrying out what you planned to do all along.

I see that differently now. I think if you conduct yourself fairly, sometimes you can also be fair (sort of an ethical "clothes make the person").

You received shabby treatment. That shabby treatment turns the process to shambles. The proponents themselves argue, in justififying extending Oregon's New World Order to other states, that local jurisdictions have the ability to mitigate the effects of claims. When Sam and Patti effectively prejudge (as is apparent from the conduct and discussions prior to their decision) they demonstrate that they represent Dave Hunnicutt, no us.

[Brian]

Robert, Richard got it right. I mentioned how much has been donated for a couple of reasons.

One, it shows the depth of concern people have about this threat to their wells and the springs that feed Spring Lake. They're putting their money where their property rights are. (without water, property isn't worth much)

It isn't just Measure 37 claimants who have property rights. People already living in an area have property rights too. That's why this decision was so unfair.

Independent evidence that the subdivision has a high chance of harming existing water users was totally ignored in favor of letting 42 wells be drilled by a Measure 37 claimant. Why? It's hard to figure out.

That's why we're asking for a reconsideration of a decision that makes no sense.

As Richard said, another reason to mention how much money we've spent is to show that arbitrary land use decisions that give every sign of being politically motivated have very real consequences.

We and our neighbors are having to put a lot of time and money into a fight that should have been refereed by the county's groundwater ordinance.

The applicant voluntarily submitted a Hydro Review of the water situation in the area. A peer reviewer hired by the county carefully assessed it, per the groundwater ordinance.

And failed the Review. So that should trigger collection of additional water data to resolve concerns about water availability. But two members of the Board of Commissioners ignored their own county ordinance.

That's unfair. And costly to neighbors. Which is why we're showing how much that cost is.

[Tom]

Brian,
I have several comments: first, if Mr. Laack were able to service his 42 lots through a public water system, with him paying the entire cost, would you still be opposed to his plan? (and why?)

Second, why doesn't the legislature pass some kind of law forbidding development in water deficient areas, and keep this matter separate from the Measure 37 issue? It seems to me that it really is an issue of "health and safety" which is identical to the problem of obtaining septic permits. This is impossible on some kinds of ground (in an earlier posting I described my own problems with some land we owned that had this kind of problem, which would have prevented "optimal" development, in addition to the many other problems we had.) To my knowledge, no Measure 37 supporters (like myself, but with bipartisan amendments) have suggested that septic permit denials on the basis of wet ground are a denial of basic property rights. Everyone (to my knowledge) considers this a sensible, lawful and ethical limitation on property rights. At least I certainly do.

Third: why has my earlier posting attracted practically no comments--even from the proprietor of this blog, Mr. Hines? Don't you read your own postings, sir? Richard replied, but all he gave was a litany of his personal beliefs, with no suggestion of a practical ethical path by which they might have been reached fairly and equitably. I'm assuming he suggests an ends justifies the means process, such as has been the case in Oregon, so far. Noble goals like his are fine, I suppose, if you don't want a rural life. But rural living would be impossible in his Brave New World, except for real farmers and those of the Neil Goldschmid ilk. It does seem to me that I gave an interesting example of what the Oregon system did to land use elsewhere: i.e caused it to run completely wild, at least in my opinion. If you want examples of a "shabby process," you need to look no further than to your neighbor, Clark County, Washington. There is also a very interesting study done by a woman lawyer at Columbia University, "Gone too Far: Oregon's Measure 37 and the Perils of Over-Regulation of Land Use." I believe this can easily be Googled. Has anyone making postings on this particular blog read it? Or have you all only read these recent "economic" studies claiming that those Mrs. English et al have actually have benefitted from Oregon's land use laws and should be turning cartwheels: a rising tide lifts all boats (except those stuck in the mud).
cheers Tom

[Tom]

I was wrong: the title of the study is not what those interested in reading the study should Google. It is the author's name that gets you there: Sara C. Galvan
try it--you might learn something
Tom

[Richard]

Tom: I read my earlier comments, and I do not see them as a litany of my personal beliefs. What I tried to do was describe a process that exists in law and policy today. What I described was not merely noble, it is the law.

Your example of Clark County is good. It provides an excellent contrast, almost a classic control group. Clark County is part of the Portland metro area. Compare the two sides of the river and you will see why we value our land use system.

I read the paper. I have the following comments. The first thing I would take not of is how Oregon adopted the principle of regulatory takings. They did so by initiative. They could not have accomplished their ends by legislative or Court action because their goals were too extreme. We are finding out now just how exteme they were.

The author states that Oregon voters’ sentiments “echoed the supreme Court’s formulation of regulatory taking doctrine in Pennsylvania Coal co. v. Mahon: “[W]hile property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” The case the author cites and relies upon is one of the earliest Court decisions on zoning regulations. When that decision was handed down in 1922, zoning was a new feature on the landscape.

I am not legally trained and I do not pretend to know the case law. The courts have noted that zoning has both positive and negative effects, making it difficult to predict the net effect of regulatory restrictions. The Oregon Supreme Court stated in a case where forestry regulations barred tree harvesting immediately adjacent to an active bald eagle nest that “regulations may, depending on a myriad of economic and other factors, increase or decrease the affected property’s value.

The courts have struggled with takings because it is not as simple as the author of this article implies, and that the proponents of Measure 37 marketed. The California Supreme Court expressed the concept of regulation versus takings quite well: [T]he necessary reciprocity of advantage lies not in a precise balance of burdens and benefits accruing to property from a single law, or in an exact equality of burdens among all property owners, but in the interlocking system of benefits, economic and noneconomic, that all the participants in a democratic society may expect to receive, ea h also being called upon from time to time to sacrifice some advantage, economic or noneconomic, for the common good.”

The U.S. Supreme Court in the Keystone Bituminous Coal decision stated that “the takings clause has never been read to require the States or the courts to calculate whether a specific individual has suffered burdens . . . in excess of the benefits received. Not every individual gets a full dollar return in benefits for the taxes he or she pays; yet, no one suggests than an individual has a right to compensation for the difference between taxes paid and the dollar value of benefits received.”

Her premise is based upon the thesis that “the legislature and the courts stopped listening to the people of Oregon.” I disagree. When Senate Bill 100 was enacted it resulted in the adoption of 19 Goals. Goal 1 provides: "To develop a citizen involvement program that insures the opportunity for citizens to be involved in all phases of the planning process." You can read the goal and the administrative rule that fleshes it out here: http://www.lcd.state.or.us/LCD/docs/goals/goal1.pdf

The people are clearly a pert of the process, have been part of the process, and have reinserted themselves in the process with HB 3540-C and Measure 49.

Reading further, I think the author made good points in her critique of LUBA.

[Brian]

Tom, like they say, "the devil is in the details." A public water system sounds great, until you think, "Where would the water come from?"

We're five miles from the Salem city limits. There's no way, no way at all, that city water ever will come out here. So where would the Measure 37 claimant get his water?

From wells. Which returns us to the original problem: lack of groundwater for further development in this area. Whether the water comes from a few shared wells or from 42 individual wells, the water comes from the same aquifer.

So, no, we wouldn't support a shared water system.

Regarding the legislature prohibiting subdivisions in groundwater limited areas, that's sort of what they've done with the Measure 37 fix: HB 3540. Except three lots still are permitted, which could be three wells too many in some areas.

Still, it's better than nothing. I appreciate your willingness to recognize that one person's property rights stop when they infringe on another person's. Thus property rights aren't "inalienable," like so many pro-Measure 37 fanatics argue.

They're flexible. They depend on circumstances. They need to be negotiated through open, fair public processes.

Not through the blunt club of Measure 37, which elevates the property rights of the few over the property rights of the many who already live in an area.

[Robert Canfield]

Your inclusion of money raised and spent to shoe "the depth of concern people have about this threat to their wells and the springs that feed Spring Lake" may make you and your neighbors feel better. But consider your ultimate audience.

The politicians on the county commission have already made up their minds. You feel you've been treated shabbily. Maybe you have, maybe you haven't. I don't know. But politicians tend to stiffen their resistance even more after they've voted.

Maybe you can stack the meeting audience with supporters (VOTERS!). Politicians sometimes cave in and change their minds when they're faced with a room full of angry voters. Maybe you've already done that.

Your new audience should now be LUBA. If you're right, and errors were made in this land use decision, LUBA won't care one bit about the depth of concern you and your neighbors have, or how much money you've raised. But they will care about the strength of your arguments regarding the county commission's decision. That was the reasoning behind my original comments.

As I mentioned before, it's my opinion that there's no such thing as a non-political quasi-judicial land use decision when it's made by an elected body. It's too bad that hearings officers aren't use more widely for land use decisions.

[Tom]

Comments for Richard: I don't understand your claim that Oregon adopted the principle of regulatory takings via referendum. My understanding is that our land use system was initiated by Senate Bill 100, which was originally intended to contain a compensation feature. The compensation feature was never agreed upon in the legislature and put into law, so the "principle" of regulatory takings evolved via dithering, not thinking.

Measure 37 proponents oversimplified their measure because 1) they had been jerked around by the courts on Measure 7 and they wanted something which would survive legal challenge; and 2) they had been jerked around mercilessly for three decades plus by a system which contained no rights for those economically harmed by the land use system.

Most Measure 37 supporters, at least those like myself, viewed it as saying to the legislature and the governor: give us a land use system which is fair, and which does not depend upon ripping people off for its very existence. Design a clever land use system compensation feature to mitigate the unfair effect of restrictions on selected land owners, as should have been done in 1974. When people are harmed economically, find a way to pay them for the damages and stop telling us that it is impossible, and that we already live in the best of all possible worlds. This insults our intelligence. My opinion is that the Democrats, instead, have tried to ignore the will of the people and have deliberately intended to preserve the old unfair system with allmost all of its faults, by presenting voters with an absurd choice between two extremes, each equally unacceptable, and by not acting in good faith with Republican legislators.

Here is an example of a compensation system which might have worked in 1974. First, keep all the back tax money collected when property is removed from farm/forest use (10 year penalties at converted, higher residential tax rates) in a fund, together with some kind of development tax on each new lot created in the process. Second, match this fund with and equal amount of money from general tax revenues from all citizens of Oregon--who clearly benefit from the enhancements of "smart growth," including increased residential property
values inside Urban Growth Boundaries.

Use the fund to compensate those who feel they have been harmed, especially by "downzoning." Also use it to create exclusive Farm zones by buying permanent developments rights from willing sellers. Use eminent domain on those unwilling to go along and let them sue for damages if they feel the offered settlement is too low (just like they have to do now in the case of airport, school, road "takings" now)

I acknowledge that many of the Measure 37 claims for damages are aburd, because the development values should be based upon the actual economic situation in 1974, not 07. Mrs. English would be entitled to a large claim; so would the George family; but not those in Hood River, Lebanon, Lakeview etc. etc. who had little of no deveolpment value in 1974. Location, location, location.

One final comment: if a system like the above were developed it would withstand a dramatic change in course on property rights and "takings" of the US Supreme Court, if it ever gets to rule on the constitutionalty of Urban Growth Boundaries w/o compensation systems for rural property owners. With the current system or with HB 3450, it would not

Comments for Brian:

I don't appreciate that you did not answer my question. If water lines can be laid down at a cost of $35/ft, then 5 miles costs 35x5280x5= $924,000. If 42 lots are worth $200K each after allowing for other development costs, then Mr. Laack's property is worth about $8,400,000, and he can easily afford to spend 11% to bring in water from a source which does not deplete your ground water. Do you think it is fair to claim that all he has is "farmland" worth what he can grow on it, or what someone like the old Hollywood video tycoon (Wattle?) in Wilsonville, who constructed a house with a 4 acre footprint on "farmland" is willing to pay to create his 140 acre Estate, and start shouting "Tally-ho?"

Tom

[Brian]

Tom, the state Water Resources Department, plus every other water expert we've talked with, says that there's no way the city of Salem would extend services five miles from the city limits.

You can't just dig a trench on your own and grab water from a municipality. Please, get real. Neither Laack, the Measure 37 claimant, nor his hydrogeologist, has ever even hinted at the possibility of getting water from Salem.

So I can't understand why you're fixated on this. It won't happen. We don't even have DSL out here--which is a heck of a lot cheaper to install than a water line. We're dependent on wells. Which are at high risk of going dry from the Measure 37 subdivision.

[Richard]

Tom: there is an essay that attempts to address some of your concerns here: http://carvakaonthecommons.blogspot.com/

[Tom]

Brian,
Sorry to fixate on such a nasty hypothetical question which you obviously don't want to answer. Truth to tell,(since I already agreed with you that water is a "health/safety" issue), I wanted to tease out what I suspected would be your backup argument (if ever PUD water did come your way as it did on our Clark County property): WE (i.e. all good Oregonians, even transplants like myself) must preserve valuable "farmland" so Mr. Lasck shouldn't be allowed to divide anyway. Have I misjudged you?

This is exactly what the Planners in Clark County were trying to do to us by refusing to endorse dividing our 23 acres into two lots as a "County initiated action", even though it was on a water main and surrounded by numerous little mini-estates, probably just like yours. I had a chat one day with the Planning Director of Clark County and he told me about a remarkable family (God blessum, he said) who actually made a paying business out of a dinky parcel of sub-marginal "farm" land like ours by planting Walnut trees (and waiting ten years, or was it twenty?). Of course, practically everyone else in Clark County had pronounced commercial agriculture dead long ago (LaCenter is not the Willamette Valley--it is where people went when the Willamette Valley was filled up). So the good director wanted me to understand that--nothing personal--THEY just needed, or might possibly need some day, land just like ours for their little, long term, social experiment. Kind of like putting out an artifical bird house to see if it ever actually attracts real birds--i.e. see if forcing the price of our 23 acres,35 minutes from PDX of downtown Portland, so low that someone might actually try to farm it to make a living, as opposed to a Wattle or a Goldschmidt who would instead build a large castle, put up a gate, and not care whether the "farm" ever made money--since they already brought their money with them.

This pissed me off, and I have concluded the basic idea originated in Oregon, so that is where I am coming from. So I hope you do not succeed in forcing Mr. Laack to have only one parcel, or just three 40 acre parcels, even though I also do not wish your well to go dry. And I do not intend to vote for the Democrat's proposal to revise Measure 37, even though I used to be a lifelong Democrat and even voted for McGovern in my youth.

If nothing else, I hope my postings demonstrate that not everyone who thinks the Oregon Land Use System stinks is anti-gov, anti-zoning, andti-social etc. etc.
I do not see how normal people can plan and live their live without some measure quasi-rational property rights.
cheers Tom

Richard, I read Red Cloud's statement and I'm sorry, but I think it's nuts. "Land is zoned for use, not for investment." If someone had told me that Red Cloud's statement was the offical law of the land, I would never buy land, nor do I see who would. It would be nothing but a giant lottery ticket. Since I don't like the stock market, I suppose I would have to stuff my money in a mattress or buy gold coins and bury them in the garden.
cheers Tom

[Richard]

Well, Tom, show me an investment zone designation.

If you buy land for investment, as you seem to indicate you may have done, why should the land use system compensate you when the land fails to live up to your value expectations?

I have a relative in South Dakota whose family got screwed when Carter imposed an embargo on exports to the former USSR. They could not have sold their farm for squat until the embargo was lifted. Should we have compensated him? No.

[Brian]

Tom, I give you credit for being a thoughtful and semi-well-informed Measure 37 advocate. But you're still missing some important points about the Laack subdivision and development in general.

Talking with my wife about your comments, and my/Richard's responses, she said, "That guy needs to know that bringing city services to a rural area runs afoul of Oregon's land use policies."

Which is to not let rural and farm land become checkerboarded with residential and commercial development. So extending Salem water five miles out of town is not only a ridiculous idea, it's also almost certainly legally impossible.

Hope this explains why I consider your notion a hypothetical. I and my neighbors are into reality--the reality of our wells being threatened by the subdivision. Thanks for agreeing that we have a right to the water we're currently using. That puts you on our side and against Leroy Laack.

I agree with Richard that nobody has a right to make money from a real estate investment. That's highly un-capitalistic. Nobody has a right to make money from any sort of investment. Investing is risky.

If you want a sure thing, keep your money in a sock or a bank savings account. Like Richard said, government actions alter the value of investments all of the time. Real estate shouldn't be immune from having its value raised or lowered by a government action.

[Tom]

Richard, Brian, and Laurel,
I'll see you well-informed, deep thinking, Oregon philosophers at the polls in November.
Till then
Tom