Measure 37 subdivision truth vs. fiction

First, the good news: I looked fine on yesterday's KATU (Channel 2) news story about the Marion County Board of Commissioner's horrendous decision to approve a 42-lot Measure 37 subdivision that we've been fighting—along with forty other neighbors.

My previous television news appearances have left me watching the clip with a Who the hell is that old disheveled geezer? in my mind. So when I got a call from Dino, the KATU cameraman based in Salem, asking if I could meet him at the subdivision property in 45 minutes, I had time to primp up.

Now, the bad news: in the story Commissioner Sam Brentano spoke the same fiction that he did at the Board of Commissioner's meeting on Wednesday where he and Patti Milne ignored scientific evidence and their own Planning Commission in voting to approve this groundwater disaster in the making.

Here's what Brentano told the KATU reporter:

You follow the rules that are in place here. And the Planning Commission erred in trying to change the rules on the developer.

That's wrong, as I'll explain below. What I said is correct:

It [the decision] was just purely political, and made an effort to get this subdivision built, no matter what, before the Measure 37 fix in the fall is approved by voters.

(OK, I should have said, "approved by voters in the fall," but when a camera is running, the brain doesn't work quite as smoothly.")

Wednesday the commissioners started off with an extensive discussion of whether Leroy Laack, the Measure 37 claimant, could get his subdivision "vested" before the ballot referral vote on HB 3540-C.

The conclusion was that he might be able to if the application was approved; he couldn't if a Hydrogeological Study was required, as independent geological experts hired by Marion County had recommended and the county's groundwater ordinance demanded.

So the facts ended up being massaged to fit a pre-determined conclusion by Brentano and Milne—a really disgusting way to treat the public. The Keep Our Water Safe Committee that my wife chairs had raised $22,000 to gather and present evidence that the subdivision posed a threat to our water supplies. Our neighborhood association chipped in another $5,000.

We deserved an honest forthright decision from the Board of Commissioners. We didn't get it. Brentano had it backwards: we, the subdivision opponents, had the rules changed, not the developer.

We helped convince the independent experts that there's inadequate evidence of adequate water for the subdivision. That should have triggered a one to two year Hydro Study where new information is gathered about the area's hydrogeologic situation.

Instead, Brentano and Milne came up with a completely B.S. fabricated reason for approving the subdivision.

Their own Planning Commission had spent nine hours considering the ins and outs of the application, eventually deciding that when the applicant threw a single 92 acre lot into an average lot size calculation along with 42 mostly two to three acre lots, just to meet a 5 acre threshold, this was a classic case of "fuzzy math."

The large lot isn't part of the subdivision. It won't supply water to the subdivision. It's in a different aquifer from the 42 lots. In other words, it's a terribly skewed (and screwy) distribution. In cases like this, statisticians agree that's it's entirely appropriate to toss out the outlier—a 92 acre lot that doesn't belong.

Marion County has never had a land use application where a developer tried to play this sort of game. Leroy Laack is the first. So Sam Brentano is wrong when he says that the Planning Commission changed the rules on the developer. There weren't any prior rules about how to handle a sneaky attempt to do a run-around the groundwater ordinance.

The Planning Commission established a rule that made sense: if a very large lot is included in a subdivision application purely for the purpose of manipulating the average lot size calculation to be more than 5.0 acres, don't include the lot in the calculation. They recognized that Laack was trying to cheat his way to a Measure 37 subdivision.

A lot of people in our neighborhood are fighting mad about what Brentano and Milne have done. These county commissioners see nothing wrong with approving a 42-lot subdivision after the county's own experts have said, "There's not enough evidence of adequate water for the development."

After the decision last Wednesday, one of our supporters said "Chutzpah has its own karma." I liked the slogan, combining as it did two seemingly disparate religions. But they do indeed each subscribe to a what goes around, comes around philosophy.

Replacements for Brentano and Milne need to be found. They're disasters — uninformed, untruthful, unashamed of trashing the property rights of the many in favor the few.

Kounty Kommissioner Karma. Hopefully it's coming to an election near us soon.

Comments

[Richard]

Does it not strike you odd that the Commissioners would be so concerned about vesting? The very discussion of vesting indicates to me that they had their minds (I'm not sure that is the appropriate word) made up. Something was "made up" and that was the pretense that that bunch represents the interests of Marion County.

One is a lame duck and one is just plain lame.

Who do the really represent? Two people: Ross and Dave?

[Brian]

Richard, you're right on with the vesting observation.

To have a discussion of whether a Measure 37 subdivision on groundwater limited land would be vested before fall (which would require substantial construction to occur)before you talk about whether the subdivision should be approved does indeed show how biased the commissioners were.

It was disgusting. But that's the Marion County Board of Commissioners for you--Janet Carlson excepted.

[Robert Canfield]

I read the peer review of the water report. It does seem to put doubt on the water report supplied by the developer. I haven't read anything else about this land use decision, so I admittedly don't have the whole picture.

However, after sitting through many quasi-judicial land use decisions myself as a member of the Troutdale City Council, it is my opinion that in practice, there is no such thing as a "quasi-judicial" land use hearing when elected officials are involved.

I've been disgusted when it's happened. I've lost sleep when it's happened. And I've lost faith in local government when it's happened.

Your situation is a prime reason why people should get involved in local politics. Don't just practice NIMBY-ism. Stay involved in the process even after your NIMBY issue is finished.

[Alex Davies]

Hey Brian,

Have you considered the possibility that it's really YOUR polluted karma coming back now to bite YOU in the lily-white arse?

Think about it: A privileged New Age socialist NIMBY-type who is a fanatic proponent of using government's jackboot heel of oppression to grind his neighbors' freedom, prosperity and property rights into the dirt now gets his worst nightmare, a sprawling subdivision, plopped down right next door to him. If this cosmic comeuppance does indeed come to pass, then I'd call it irrefutable evidence that we reside in a just universe.

[Brian]

Alex, you shouldn't post comments when you've been drinking. Sober up first, then share your thoughts. You make as much sense as Measure 37. Namely, none.

[Richard]

Brian, let him rant.

I'm compiling all of this. There are enough voters out there who never thought that the presumed abuses to our land use system would ever justify what the Laack's are doing.

Alex needs to read the arguments for 37 and then read the arguments against. He won't because he knows that what the people of Oregon enacted is nothing more than the jackboot heel of oppression. He knows diddly about freedom and even less about property rights. His tripe if fodder for me to use.

When Alex talks, a lot of voters will listen - and recognize the terrible mistake they made in voting for 37.

[Alex Davies]

Wow, Brian, didja think up that witty rejoinder all by your lil' ol' lonesome? You remind me of Lard Lardass when he starts asking callers if they've "been smoking dope" once he starts losing an on-air argument.

And who are you anyway, Richard (aside, I mean, from being a run-of-the-mill lobotomized leftoid droid)? Do you fancy yourself as a secret agent for the volunteer Oregon Land-use Gestapo or something?

Whatever. Neither you nor Brian even believes in the existence of property rights in the first place. You're both anti-individualist and anti-capitalist through and through. Subsequently, you have zero respect for other peoples' right to pursue their own happiness (because, in your twisted, tyrannical view, nobody "owns" anything). You're just a couple of wailing old-school collectivist misanthropes. For either of you to presume to lecture anyone about the philosophy of human liberty and the nature of personal freedom is comically preposterous.

You wanna know why Measure 7 passed in 2000, Measure 37 in 2004, Measure 39 in 2006, and why HB 3540 is destined to fail this fall? Take a long look in the mirror, comrades.

[Richard]

Talk about comparisons to Lars. Alex, your ranting does sound like Lars when he is on the losing end.

But I think we've seen you before, to judge by what and how you communicate. You were standing guard at Auschwitz; you looked adoringly at your leader at Nuremburg; you worshiped your cross while wearing white robes; you wore your hard hat and screamed love it or leave it; you bombed a federal building in Oklahoma; you bomb abortion clinics.

Maybe you are not an extremist; I may be wrong (we just can't tell from what you write). If I am, I'm sorry, but if I am wrong, I think you owe Brian an apology.

You have no satisfaction except through your hate. You could turn into your opposite far more easily than you could find any common ground with Brian.

We do know what property rights are, and we value them. You have comletely missed what we have been discussing.

We've been up front, here and elsewhere as to why we believe in land use, comprehensive planning, and zoning. We respect each other's property rights as long as they do not jeopardize our own, in Brian's case, access to water.

What we don't know is how deep your understanding of property rights is.

Like I said earlier, there are a lot of people out there that now are beginning to see that it is extremists who are behind 37, not just people who wanted to build an additional home on their property. That is what the ballot measure is about.

Read the bill. Tell us what you don't like about it. Tell us what you think property rights are. Tell us what you think of comprehensive planning. Tell us what you think of zoning.

There is no dialogue with a ranter.

[Alex Davies]

The only ones I see flirting here with the dark totalitarian impulses of the socialist Utopian/master-race movements of the 20th Century are the zealot supporters of command-and-control centralized government land-use planning. Fascists and communists are BOTH great fans of state control over the means of production and government planning of the economy. Basically, they hate individual choice and loathe freedom.

So it's also hardly surprising that the history of command-and-control government zoning and urban planning in America is a history of racism, classism, segregation, crony patronage, protectionism, environmental degradation and a litany of other social injustices.

I, on the other hand, believe in ideals of freedom and liberty, the ideals of the American Revolution -- ideals that most of today's rabid partisans on both the right and the left find threatening and politically repellent.

I believe in absolute self-ownership, which is the foundation of property rights...and I believe property rights are the foundation of a free, just and prosperous civilization. I believe the only "social contract" of any validity is the one that demands citizens respect the personal choices and human freedom of their fellows (Brian? Brian? Are you there, Brian?) so that they might legitimately demand society and individuals respect theirs in return.

Richard, if all that sounds like what you think they were preaching at Nuremberg in the 1930s, then you need to go back and actually read the speeches again. (Who knows, you might find to your astonishment that you actually agree with a lot of it!)

[Brian]

So, Alex, I take it you believe that people have the absolute right to pollute the air and water that everyone breathes and drinks?

Even Measure 37 doesn't go that far, which says that laws/regulations needed to promote health and safety don't fall under the Measure.

We and our neighbors have a right to the groundwater that our wells draw from. Oregon law considers water a public good that doesn't belong to any single person.

If someone wants to take our water, they'll have a fight on their hands. Which, they do. Same as if someone wanted to come into our houses and take our property.

Alex, your right to use your property ends when you try to take mine.

[Richard]

My gods! We could not have asked for a better response.

Alex represents the real force behind Measure 37. I have contended all along that those who most support Measure 37 are those who want exactly what Alex wants. This is the libertarian agenda at its best.

His first paragraph states that anything a community wants and which uses the government to exercise the public policy that the community wants is command and control fascism/communism. That is as insulting as it is wrong.

Sorry, Alex, but several thousand years of human organization is not going to be overcome by your Ayn Rand Howard Roark utopian nonsense.

To say that Brian and myself "hate individual choice and loate freedom" (and I hope I can speak for Brian) indicates how little you know of people.

"I believe in absolute self-ownership, which is the foundation of property rights...and I believe property rights are the foundation of a free, just and prosperous civilization. I believe the only "social contract" of any validity is the one that demands citizens respect the personal choices and human freedom of their fellows (Brian? Brian? Are you there, Brian?) so that they might legitimately demand society and individuals respect theirs in return."

No, Alex, your first sentence, utopian as it sounds, is not the foundation of a free, just, and prosperous civilization. It is far more complex than that. If you find no freedom here, I can suggest other places where your world view is practiced, and which you would find nasty, brutish, and short.

You can talk about social contract, but the one that matters is the one we live under. And Alex, I suggest you take a closer look at Brian's concerns (again, I probably shouldn't be speaking for him) but his concern is for the lack of respect for his water and the willingness of the County to let your type of freedom overrun his freedom.

The social contract that exists is the laws we adhere to by virtue of being citizens of this country. We change laws as needed and enact new ones as needed. They are done by the community. Whether you are reading your Locke, Hobbes, Marx, Plato, More, whatever, you are giving up something to gain something. And that is what zoning is about and that is what the United States Supreme Court has consistently upheld.

When it comes to being grounded in reality, Alex, I now have a better idea of where you are tethered.

[Richard]

Alex, you said:

"The only ones I see flirting here with the dark totalitarian impulses of the socialist Utopian/master-race movements of the 20th Century are the zealot supporters of command-and-control centralized government land-use planning. Fascists and communists are BOTH great fans of state control over the means of production and government planning of the economy. Basically, they hate individual choice and loathe freedom."

Your gross exaggertions seem to ignore that in this nation the command and control that you describe is wielded by the people; Measure 37 itself rebuts your contention. We still delegate upwards the formation of public policy. If you don't like the policy that comes down, you can change it; which you cannot do in a command and control government.

Command and control is a characteristic of authoritarian/totalitarian governments. If this is what you think this country is by nature, then . . . reader draw your own conclusion.

You also state"

"Richard, if all that sounds like what you think they were preaching at Nuremberg in the 1930s, then you need to go back and actually read the speeches again. (Who knows, you might find to your astonishment that you actually agree with a lot of it!)"

Having spent most of my life trying to understand the fascist mind, having studied the structure of the system including its means of exercising control over the populace through its propaganda techniques (Alex, you ought to read some of the Völkischer Beobachter - you'll find your style of civil discourse on display), with solid graduate work in the Soviet use of command and control as applied to the Soviet judicial system, I think you are full of BS.

And having a dear friend who served with the Lincoln Brigade in Spain, I think I have fairly solid anti-fascist credentials

[Alex Davies]

"So, Alex, I take it you believe that people have the absolute right to pollute the air and water that everyone breathes and drinks?"

You take it wrong, of course, Brian. See above where I stated: "I believe the only 'social contract' of any validity is the one that demands citizens respect the personal choices and human freedom of their fellows..."

How does indiscriminately spewing toxic pollutants to drift into the environment where other people will breath or drink them somehow not violate the freedom and property rights of others? Yours is the statist ideology that empowers government to legitimize the "right" to pollute, not mine.

"Oregon law considers water a public good that doesn't belong to any single person."

Too bad for you, huh? Maybe your experiences will clue you in as to why management and distribution of resources based on "public ownership" is such a dangerous sham. When stewardship of a resource is subject merely to short-term political calculation and not long-term private ownership interests, folly and injustice is certain to ensue. Ever hear of the "Tragedy of the Commons"? It's what happens when "everybody" ( i.e. nobody) has a vested interest in protecting something.

For the record, though, I think your groundwater depletion claims are probably just more of your selfish BS alarmism anyway. At this point it wouldn't surprise me to next read you asserting that Measure 37 is going to increase the chances of catastrophic earthquakes in Oregon. It's abundantly clear you'll say anything to keep your neighbor form exercising his property rights.

Richard, the "real force" behind Measure 37 and the property rights movement is the voters. And, no, I don't think "command and control" is "what...this country is." I do think "command and control" is probably something you're for, though. (No doubt Stalin figured he had fairly solid anti-fascist credentials, too.)

You hissed that I'm a "libertarian" as if believing in freedom and defending the rights of individuals to live the peaceful lives of their choosing is somehow a crime against humanity. Well, maybe in your world it is. But indeed I am a libertarian, and quite proud of it. (Not a big Rand fan, though; it's funny, Ayn Rand is like the only "libertarian" most socialists have ever even heard of, and she didn't even consider herself one.) Most people in fact do fiercely believe in the central tenets of libertarianism -- freedom and respect for choice -- when their own rights and property come under under assault.

Brian is a case in point. He neither believed in nor comprehended the concept of property rights -- until he perceived that his own were being attacked (which they, in fact, are not).

But many people (like y'all) tend not to want to extend the courtesy of respecting choice to their neighbors, at least in any systematic or principled manner.

"If you find no freedom here, I can suggest other places where your world view is practiced, and which you would find nasty, brutish, and short."

Where would that be, my socialist friend? Which war-ravaged bombed-out pestilence-ridden collapsed communist shithole that you no doubt formerly idealized are you now going to point to and say "That's what peace and freedom does for ya, yessir!"?

What I sense you're really saying is something along the lines of "Love it or Leave it!", which would again bolster my earlier observation that lefties do think, talk and act like Lars and Rush when confronted with criticism of their belief systems. Their inclination is often to invite the critic to leave the country. Well, unfortunately for you and Brian, I'm staying. And along with a majority of my fellow Oregonians who reject the klepto-thuggish abuses of power you call a "land-use planning system," I'll be voting against your Measure 37 gut-job this fall.

[Brian]

Alex, take a stab at something new and fresh for you: read some facts. Here's a link, via the Statesman Journal, to the independent hydrogeologic assessment of the Hydro Review conducted by the Measure 37 applicant.
http://www.statesmanjournal.com/assets/pdf/J076418613.PDF

It isn't the easiest reading. What it shows clearly, though, is that this Measure 37 claim has a high risk of harming neighboring wells and springs. That's a fact. And all of your rhetoric can't change that fact.

This is one reason why voters will approve the Measure 37 fix. They understand that when a Measure 37 claimant wants to dry up surrounding wells, that can't be allowed.

[Richard]

Alex, it took this long to find out what it is you believe. We could have got here a lot sooner if you bothered to practice what you believe about respect. Are you capable of doing that?

There is a lot about libertarians I accept, and that is from a liberal perspective. There is a log about libertarians that Patty Milne accepts. The problem, Alex, is that you achieve your ends through stealth: TABOR, Measure 5, Measure 37. If you were stand up people, you’d come at the issue up front, like from your party platform. But people would then connect the dots and would have reservations about what would result.

I see a strong streak of idealism in the party’s positions. I am not that kind of idealist. I am a non-conforming individual, but I am also a neighbor, a member of various communities, of which Marion County, Oregon, the USA, the world, and the environment are others. Please, Alex, when you rip me, keep your snark in your pockets.

I recognize that there are reciprocal relationships and obligations that I have as individual, property owner, and as citizen. I see far more of a role for the state than do you. Parts of my family came to this country as a consequence of the sort of laissez faire that you advocate. I am suspicious of liberties that can be exploited by those who know how to use and keep power. I have an altruistic streak in me, which I think is alien to libertarianism.

I have my doubts about the trustworthiness of people in their social behavior. I’ve read my Augustine, St. Thomas, Hobbes, Locke, Hegel, Marx, and I accept the need for the state. I know that I can drive my SUV and know that I’m individually not creating much of a problem, but I also know that tens of millions of others doing the same wreak havoc. I think libertarianism is a recipe for some form of neo-feudalism. I have no regrets for supporting SB 100 and Oregon’s land use system. You may not, but millions of others do see that it has done more good for Oregon and not nearly the amount of evil you attribute.

This whole thread deals with the consequences of reciprocal relationships and the respect one property owner thought was due, but was rejected out of hand by the County. And all you can do is refuse to give his evidence any validity. All I can conclude is that you think chicanery in the pursuit of a perceived good is good; which is what happened at the County level and which is happening with Measure 37.

I make an attempt to understand and to engage, despite your immature responses. There’s a gap here, it can’t be spanned, but through no fault of mine.

[elves]

This has been both entertaining and enlightening. Alex's snark and ad hominems aside, I believe he has made as principled an argument as can be made for the M37 folks. In the end, there is no there there. Civilization, community, and all of the rights and obligations that flow from it is a continuum. Land use planning, zoning, and other similar constraints on private use of the world we live in are conventions we enter into as a society for the broad common good. When Alex ignores and/or denies Brian's water issue, he spotlights the fundamental principle underlying the M37 arguments - screw everybody else and the common good (that would be all of the rest of us) if he can get something for myself. This approach will lead this great country straight to the scrapheap of history (if it hasn't done so already). Sigh.

[Richard]

Right on, elves. Here is what, snark aside, I got from the discussion.

BRIAN: "So, Alex, I take it you believe that peole have an absolute right to pollute the air and wter that everyone breathes and drinks?"

ALEX: "You take it wrong, of course, Brian. I believe the only 'social contract' of any validity is the one that demands citizens respect the personalchoices and human fredom of their fellows."

Brian is the realist; Alex, the idealist.

With respect to Brian's concern abut the water he draws from a well that taps an aquifer shared by others draws this response from Alex: "Maybe your experience will clue you in as to why management and distribution of resources based on 'public ownership' is such a dangerous sham. When stewardship of a resource is subject merely to short-term calculation and not long-term private ownership interests, folly and insjustice is certain to ensure."

The immediate concern for Brian, examining Alex's idealistic view of the private ownership of resources is how to allocate or share a common resource. The well is a straw; the aquifer a glass.

Alex's answer is that the social contract "demands citizens respect the personal choices and human freedoms of their fellows." Accepting this principle, Brian prudently uses the water from his well. Brian knows we have no certain knowledge of the capacity of that aquifer. He does know that every time the aquifer is drawn down, the "glass" get smaller because the aquifer never recharges to its prior volue due to gravity, erosion, and nature's abhorence of a vacuum.

Brian and his neighbors sit on top of their tax lots and observe a neighboring parcel be divided into 40 lots, with 40 more straws drawing from the common glass.

Accepting Alex's principle, Brian trusts his new neighbors to extend to him the same respect that he is exercising in his prudent use of a resource he knows to be finite and limited.

But what if his new neighbors do not share his concerns? He cannot partition off "his" part of the aquifer. He can present evidence to his neighbors that they, too, need to be prudent in their use of the water. But he has no guarantee of their respect.

If Brian is wrong, there is no problem. If Brian is right, everyone suffers. Brian sits on his tax lot mulling that if if and buts were candy and nuts, it would be Christmas every day.

Brian returns to Alex's social contract and notes the provision that demands citizens respect each other. What entity, Brian asks, enforcees that demand. Brian is not an idealist. he has, through due process, raised valid concerns about the consequences of Alex's idealistic principles of property rights.

Brian counters Alex's vision of the social contract by saying that the contract is modified by the laws we enact as a society to ensure the respect Alex's social contract demands of those who live under it.

Who enforces the respect but the government we have chosen. Alex's social contract is predicated upon the mutual prudence of those who live under it. This brings us full circle to the contrast between idealism and realism. Brian, as the realist, holds that his ability to trust others requires an entity to enforce or mediate when others abuse their reciprocal obligations.

We may not like the mechanism, but we as a society have enacted them because we have certain knowledge of one thing - we may not know how much water is there, but we do know that humans are not self regulating.