Oregon elected officials shouldn’t make land use decisions

A lot of weird stuff goes on in Salem. We're the home of the state legislature, mental hospital, and penitentiary – each of which is filled with certified crazies.

Now the Salem City Council is joining the crowd that makes me think What the @#$%&! ??? when I open the newspaper. Last week the Statesman Journal headline was "Editorial prompts delay on development decision."

The not-so-savvy city attorney, Randall Tosh, got it into his head that publishing an editorial or sending an email about a land use issue constitutes ex parte contact (a communication to a decision maker made outside the hearing process).

Since the Statesman Journal had editorialized against allowing a major shopping center on an already-overcrowded street, Kuebler Boulevard, and had urged readers to tell the City Council how they feel about the Pac Trust development, this was way too much free speech for Tosh.

So the Council postponed a decision on a zoning change, re-opened the hearing, and scheduled more testimony for August 6. Ridiculous.

As soon as I read the newspaper story I rushed to my laptop and sent an email to the Statesman Journal opinion editor. I urged her to run another editorial the next day to show the City Council that the First Amendment is still alive and well in Oregon.

That's what happened. And I was pleased to see that their "Memo to Salem council: don't read this" included a quote from my email.

As one Statesman Journal reader wrote: "To my mind Tosh's position strikes at the heart of informed public discourse. He seems to be implying that a newspaper can't publish anything about a land-use case that is still being considered by decision-makers. That sounds really Big Brotherish, allowing government to operate in secret."

Right on, reader. I can't help agreeing with myself.

I'll go even further than this, though. A bigger problem than elected officials making land use decisions in secret is their making the decisions at all. Why the heck should a city council or county board of commissioners be interpreting complex laws and ordinances when they're incompetent to do so?

My wife and I know whereof we speak, because we've appealed several neighborhood land use cases to the Marion County Board of Commissioners.

As reported in "Another Measure 37 outrage," two of the three commissioners are openly dedicated not to enforcing county ordinances, but to feathering the pockets of those who want to build large subdivisions on groundwater limited farmland. They don't bother to even go through the quasi-judicial motions of a land use decision appeal.

A letter to the editor, "City puts developers above its citizens," made a similar point about the Salem City Council.

On nearly every significant decision by the City Council and mayor, when given the choice between the private interest vs. the public interest, utter contempt is shown for the authentic interests of the residents of Salem.

The latest actions of the City Council in trying to cover their tracks in promoting the PacTrust development on Kuebler Boulevard SE over the objections of local residents simply underscore the obvious.

Time and time again the City Council shows itself as a wholly-owned subsidiary of real estate/development interests.

The public deserves a lot better. Elected officials should be shut out of land use decision appeals. They're addicted to letting their personal political beliefs determine how they vote on an issue. The Marion County commissioners love Measure 37, so they tilt toward virtually every Measure 37 claimant, no matter how egregious or unlawful the land use case is.

Here's what's frustrating for citizens like us, land use activists who are out to protect Oregon's livability. Our opponents are out to make money. So for them the cost of an appeal is a business expense. For us it's money directly out of our pockets. In our current case, also out of the pockets of forty neighbors who with us have formed a Keep Our Water Safe committee.

The first step in Marion County's land use decision process for that case was the Planning Commission. It's made up of volunteers. They're opinionated and biased, like most people are. But at least they held three lengthy hearings on this Measure 37 subdivision application and made a halfway decent decision.

Which we appealed, along with the applicant. Now, you'd think that the next level of decision-making would bring you more objectivity and competency rather than less. And this is what we'd have gotten if the case had gone to an independent hearings officer, an attorney who specializes in land use law.

But instead the county commissioners decided to hear the case themselves. This usually happens in high-profile, big-ticket development decisions, because this way the three elected officials can interject politics and personal preferences into the decision. (In fairness, Commissioner Janet Carlson is pretty unbiased; it's Sam Brentano and Patti Milne who are the problems).

So generally the Marion County Board of Commissioners, like the Salem City Council, will end up making an even screwier decision than the Planning Commission did. Now a neighborhood group like ours has its own decision to make: continue on appealing to the Land Use Board of Appeals (LUBA), or give up?

It costs around $10,000 to $20,000 to take a case to LUBA. This is why elected officials often get away with their baseless land use decisions. Opponents don't have the money, time, or energy to keep on fighting. In our case, we have all three.

But we're fortunate to be getting either low cost or no cost legal assistance with our LUBA appeal. This usually isn't available to people who've been shafted by a city council or board of commissioners.

The best solution would be to take elected officials out of the land use decision appeal route entirely. There's no place for political prejudices in quasi-judicial hearings.

How would you feel if you were given a speeding ticket that you didn't deserve, went to appeal before a judge, and heard him say "I'm personally opposed to speeders. There's nothing good to say about them. No one has a right to speed. Now, what's your problem?"

You expect that a judge would have an open mind. But elected officials don't. They get elected because they have a particular political viewpoint. That bias doesn't disappear when they turn into decision makers on land use cases.

Comments

[Richard]

I think we all need to take a close look at Goal 1:

http://www.lcd.state.or.us/LCD/docs/goals/goal1.pdf

Goal 1 - Citizen Involvement: "To develop a citizen involvement program that insures the opportunity for citizens to be involved in all phases of the planning process."

The cynic in me says that every time you have a policy specifying public involvement, the policy makers come up with means by which efficiency trumps democracy.

It is Goal 1 for a reason - people come first in determining land use policy. When I look at how the process has evolved, I see that procedures trump process (rather than the reverse). When you control the procedures used to implement a process, you can make it as Byzantine and as you want and tilt it to ends other than what was intended.

Your entire essay is a reflection on how politics trumps vision and the spirit of the program. No wonder 37 passed; no wonder 49 will pass.