Remarks: “Flaws in the Oregon Land Use System”

Prepared for to the “Big Look Task Force On Oregon Land Use Planning” (SB82, 2005)
June 19, 2007, Deschutes County Administrative Building
Delivered by Crook County Judge Scott R. Cooper


The land use system in Oregon is deeply flawed because:

The black-letter law is no longer the law. Statutory law and local ordinance have been so augmented by administrative rule and LUBA-sanctioned case law that land-use law has become inaccessible to the average citizen. Of late, it has also become inaccessible to policymakers, who are lay people elected without specific knowledge of land use but yet who are expected to apply the law with finite precision. Because policymakers are generally counseled against engaging in ex-parte communication (due to the burden of disclosure such communication creates) and because policymakers are limited to consideration of the record presented and unable to pursue independent research, they ultimately must make their decision based on the input of clever attorneys and consultants who represent applicants and opponents and of staff who have inordinate and inappropriate sway in molding the outcome of land use decisions—often out of sight of applicants and/or opponents. Such a decision-making process leaves the public with a perception that the land-use system is the province of “good ‘ol boys” making “backroom deals.”

Codes fail to articulate what can be done with the specificity and certainty needed to make decisions in a businesslike manner. A zoning code—even a strict and detailed code--is preferable to a land use code because it provides specificity about exactly what is and is not permissible on any given piece of property. Such specifics are immediately translatable to a bottom-line appropriate in business decision-making. In contrast, Oregon’s system invites would-be developers to invest substantial sum up front in the form of plans and application fees and only afterwards discover whether they will be allowed to proceed with planned development, and under what conditions. This wastes money, unfairly penalizes small and inexperienced developers and has a chilling effect on economic development.

Money, not right, ultimately prevails. No matter what the issue, a would-be developer with enough time and money can eventually defeat the system, either by depleting the resources of opponents, seeking a new and more successful venue for a more favorable hearing by taking advantage of the virtually endless appeals process, or, in extreme cases, by seeking legislative changes at either the state or local level that overturn the lawful decisions of policymakers. The popular perception that “justice” is for sale in land use decisions is not entirely without foundation.

All land use cases are “lose-lose” propositions. The land use system does not allow for mediation. It does not allow policymakers to seek middle ground or common ground among applicants and opponents. Anyone who has ever attended a land use hearing knows that its principle components are misinformation, disputed motives, fear and emotion and, in the end, the selection of a winner” and creation of a “loser.” In any dispute case, someone will walk away happy and someone will walk away mad, the one exception to this rule being when both parties walk away mad. There are no “wins” for elected or appointed officials, hearings officers or planning officials. The process is divisive, does not operate on consensus principles and leaves many applicants and opponents with the impression that the system is heavy-handed and useful only for smashing people’s economic dreams or destroying communally held values.

The system applies different standards to different regions of the state. Most of my constituents above a certain age decry the loss of prime farmland around the Portland area to urban expansion. They remember when the areas now covered by shopping malls were once berry farms and orchards. They do not understand, nor should they, why these lands are so easily sacrificed under Oregon’s land use law while arid, cheat-grass prairies studded with lava and basalt are prized and protected east of the Cascades as prime farm ground. When residents of my county drive west of Eugene on their way to the coast, they are at a loss to understand why it is in inviolate rule that 80-acre minimum parcels must be preserved in Crook County for the benefit of a few skinny cows while Elmira and Veneta are surrounded by crop-less, cow-less 5-, 10- and 20-acre parcels the principle feature of which is a blackberry bramble cover My constituents postulate that Oregon land use is mostly about preserving a sunny playground in the eastern part of the state to which rain-soaked urbanites can conveniently escape on weekend. You know what? They’re right!

When Oregon land use was adopted it was hailed as a revolutionary system that would be adopted by all 50 states within 25 years. Thirty years later, we’re still waiting. Imitation is indeed the sincerest form of flattery, but likewise the failure of even a single state to imitate Oregon’s system or even portions of it should be viewed as a sincere form of well-deserved criticism.

So what is to be done to improve upon our system?

An improved land use code would require decision-makers at all levels, local and appellate, to base decisions on strict reading of statue, code and administrative rule. Tightly written zoning codes specifying specific uses should replace the inaccessible interpretations and divinations of LUBA. .Certainty and simplicity should be restored to the land use system in place of the highly subjective interpretations of comprehensive plan policies which now characterize the system. Decisions in land use cases should be redefined as legislative, not quasi-judicial. In doing so, local policymakers would be ungagged and freed to use their consensus-building skills to craft creative solutions that are “win-win” for developers and surrounding communities without placing applicants and opponents in hopeless and fruitless oppositional positions. The appeals process should be truncated sharply. I believe LUBA should be abolished and appeals from local decisions restricted to petition for writ of review to local circuit courts. Most importantly, local control should be restored as promised in Senate Bill 100 so that each community can determine its own destiny in how land within its borders is used without interference from DLCD, LCDC or other out-of-town special interest groups. It is time to quit waiting for other state’s to copy our failed system and to start looking around at the other 50 states for better systems to import to Oregon.

Thank you for your time.

Speech: Child Neglect Summit Remarks

Convening Remarks,
Crook County Child Abuse and Neglect Prevention Summit
Delivered by Crook County Judge Scott R. Cooper
Meadow Lakes, June 1, 2007

Let me start with two simple numbers: 71 and fewer than 10. Write them down. Remember them. 71 and fewer than 10. At the end of my remarks, we’ll come back to why these numbers are important to the topic we are here to discuss today.

That topic, of course, is child abuse and neglect, and what we, collectively as a community can do about it.

Some of you may know my family. We’ve been around Prineville for many years, and we’ve come to know a lot of you. For the most part, we’re a pretty conservative bunch, which reflects the rural upbringing of my parents, grandparents, aunts, great aunts, uncles, great uncles and multiple cousins. It probably reflects the fact that for the most part my people are hard-working, blue collar and deeply religious. Their worldview looks suspicious at anybody who starts out his introduction with “Hi. I’m from the government, and I’m here to help you,” which is sort of what we’re all here today to propose we ought to do more of.

My people tend to think simplistically and in terms of absolute values about life: They think people ought to do right by their families. Take one wife and care for her. Be good to your husband. Raise good kids who will to stay in school, be respectful to adults and don’t do drugs. Above all, make a plan for your life that will take you out of the house as soon as you turn 18. In many regards, we are not unlike many of my constituents in Crook County, which probably explain why I’ve been elected three times. People like people who are and who think a lot like them.

Now if I were to ask my family what we ought to do about child abuse and neglect, they would very quickly have a response. First, they would tell me stories about how the whole situation is overblown. They recite a newspaper account or a story from the internet about a Mom who pops her kid on the behind for making a smart comment and ends up in jail for the night. Or they might share a remembered tidbit from Bill O’Reilly or Lars Larson, about a first grader somewhere who kissed a classmate and got suspended for sexual harassment. There would be much clucking of tongues about the state of a world that discourages good parenting and is too P.C. for most people’s taste.

Being the “liberal” in my family, I of course, wouldn’t let them get away with this simple explanation. It’s in my genes to push, usually beyond the point where I should. So I would challenge their responses and ask them whether the government and society has any obligation to address child abuse and neglect. To make my point, I would ask them what we ought to do about child-rapists and people who physically assault kids. They wouldn’t even have to think this over either. Provided my aunts weren’t listening, my uncles would growl some impolite words about it being too bad the libs on the Supreme Court don’t see the value in castration. My aunts would suggest that more prisons, or possibly capital punishment, are the answer for those kinds of people.

These responses from my own family are probably not far off the mark from what most residents of Prineville and Crook County think when asked about this touchy subject.

The fact is, neither my family members nor most of the community, have any idea what child abuse and neglect really look like. We don’t have any idea what is going on around us each and every day. Only two things shock us into occasional thoughts about the issue: the ridiculous and the unthinkable.

But for the most part, the type of situations which comprise child abuse and neglect don’t fit into either of these neat pigeonholes.

Some D.A.’s may have resources to pursue routine corporal punishment as a crime deserving of judicial penalty. Ours doesn’t, and if he did develop such an idea, I think that at budget time, he would discover that the county suddenly had higher priorities than continuing funding of his office at present levels.

Nor do I think the D.A., juvenile department or DHS have time to worry about the little boy on the playground experiencing his first crush. To be honest, I think any one of those agencies would be almost relieved if their caseloads were so light that that kind of complaint could merit an investigation. Unfortunately, we passed that day long ago.

On the other end of the spectrum, county and state offices do a good job of responding to the clear-cut, no-argument-from-anybody cases of child abuse such as those which result in death, broken limbs, malnutrition or sexual penetration. Those cases get priority from all agencies and are easily dispatched within normal judicial processes.

But these are not the majority of what is coming to us. What is coming to us on a regular basis is a considerably more murky set of potentially abusive or neglectful circumstances. These cases involve delicate questions of law and careful analysis of what constitutes abuse or neglect. We must ask ourselves multiple times daily, what are the rights of biological parents to raise their children as they see fit? What resources does the community have to address all the factors that may come into play in a single case?

Let me tell you a few real-life stories to illustrate my point:

I attended circuit court this past week to listen to a dependency cases in front of Judge Ahern. The facts of the case were these: there are four children, currently living in foster care. This is the fourth time the case has been before the court, as the parents seek return of their children. The children were originally removed from the home due to allegations of drug use, alcohol abuse and too frequent domestic violence carried out in front of the children. There were no allegations of physical harm to the children, although the mother’s housekeeping and hygienic standards, it was suggested, would nauseate most of us. At this particular point in this case, the father has agreed to enter an expensive and promising residential drug and alcohol rehab program in Portland to conquer his substance abuse problems once and for all. The mother has agreed to a safety plan to protect the children from further abuse. The mother and father, previously separated, are back together, and there have been no further known incidents of domestic violence. As for the mother’s housekeeping, the mother has agreed to submit to regular DHS inspection of the household. The parents desperately want their children back, they both say, so they “can be a family again.” They are sure that this time—time number four—they will “get it right.” The Court Appointed Special Advocate says the children are bonded to the parents, but she has doubts about the wisdom of going down this path again. The children can’t take another transition. The foster mother has also bonded to the children, and she is begging for the chance to adopt them. She says she’s not sure she can guarantee she can emotionally take another cycle of removal of children showing signs of recovery only to have them returned broken and bruised again if these parents fail for the fifth time. The court-appointed attorney for the children asks the most relevant question of all, “How many chances are we going to give these people?” How many indeed?

I don’t know the answer to this situation. The law is clear: biological parents are to be given every opportunity to reunite with their children so long as those parents are making efforts to resolve their issues that caused them to lose their children in the first place. My heart and common sense tell me that these parents are hopelessly inept at parenting, and there is no chance of these two people putting the interests of their children above their need to deal with their personal demons. My wallet reminds me that about 70 percent of children involved in dependency cases end up later in life as part of the delinquency caseload, which would argue strongly that society’s best interests are served by getting these kids out of the system and into stable homes with caring parents—regardless of whether those children are natural or adopted. There are simply no good answers to this case or the dozens of others like it pending in our local circuit courts. In this case, the judge went with the law, which is what he is bound to do, but I have dealt with the law long enough to know that it is cuts like a chainsaw, not a scalpel, and while it applies broad general principles, it seldom is adequate for addressing the unique challenges of highly individualized cases.

Here’s another real scenario for you: a family of six children is daily boarding the school bus with fingers tinged blue from cold. Their clothes are dirty and have holes. They eat breakfast and lunch ravenously at the school cafeteria. They shower after gym class, and the PE teacher understands these are the only showers they get each day since there are no shower facilities in the home. “Home” in this case is a relative term, since it consists of a travel trailer with a lean-to, with a woodstove for heat. There are, however, two parents in the home. The Dad works at a minimum wage job. The Mom has a partial disability due to complications arising out of severe diabetes and receives government support. Her healthcare costs consume most of her disability check, and the Dad’s meager check has to cover the family’s living expense. For the most part, the family gets by on food boxes and an Oregon Trail card. Are these children neglected? They have a roof over their head, they have heat, they have food, they have parents present, and they have running water and basic sanitation after a fashion. My family would call these children neglected, and if you saw your children or nieces, nephews or grandchildren in such circumstances, you would likely call them neglected as well. But are they? It may be that this family is guilty of nothing more than poverty. And poverty, while regrettable, is not a crime, and in the United States of America, a country founded on individualism, liberty and the right to pursue life largely free from government intervention, by what right do we punish people simply for being poor?

We at the county face these difficult choices every day in the addressing the complicated issue of abuse and neglect. The situations I described above do not constitute a small percentage of our caseload. On the contrary, they are the majority. The issues require delicate balancing of law, rights, morals and respect for different opinions and beliefs. DHS child services professionals, law enforcement personnel, compliance officers, prosecutors, lawyers and judges agonize over the right answer to these questions and others like them.

And many of them go home at night, hug their children and spouses, and look around at their comfortable surroundings and wonder: did I do the right thing today?

I know that because I see them. I’ve sent employees home from work for a few days on paid administrative leave because what they saw and what they had to do was simply too much, and they needed a little time to get their heads together. I’ve patted professionals on the hand and assured them they did the “right thing,” even when we both know the “right thing” will inevitably bring this child, this family down the “wrong path” at some point in the future.

There are no easy answers to the problem of what to do about child abuse and neglect. And even if we could find a bright line to sort out what does or does not constitute neglect, we wouldn’t have the capacity to take every child who stands in harms way and put that child in a safe environment. Remember those numbers I started with: 71 and fewer than 10? 71 is the number of dependency cases Crook County filed in 2006. Fewer than 10 is the number of foster homes available for placing children in Crook County. With a gap like that, removing every child from harm’s way is neither possible nor practical.

So what can we do? We can educate the public about the foster care system and perhaps convince a few more families that there is reward in giving brittle and bruised children some semblance of normalcy. We can try to build a more caring culture which encourages early intervention to prevent, identify and stop abuse and neglect at the earliest possible sign of it. We can focus on reducing drug and alcohol abuse which are at the root of or co-mingled with the vast majority of these cases. We can lobby the state and federal government to strengthen our laws to recognize that issues of abuse and neglect are incredibly individualized and one-size-fits-all dictates written in legal stone are not helpful in sorting through these complex issues.

Individually, it unlikely we can achieve these things. Collectively, we have a greater chance, but even then, we may not achieve thousand percent increases in foster care placements. We will never eradicate drug and alcohol abuse entirely. Nor will we achieve wholesale rewrites of the law. But we should remember that great journey begins with a single step, and each little step we achieve moves us toward our final destination.

Have no doubt, the destination this meeting represents today is important. The long-term costs of child abuse and neglect rattle through the system, initially in the form of foster care supports and sadly and eventually, in far too many cases, in the form of detention and treatment costs and the costs of repetition, generation after generation.

Your work here today is to choose the path that will eventually take us to our destination of a better place where resources for addressing child abuse and neglect are increased even as the instances of these cases are reduced. Miracles cures aren’t required or expected. All we ask today is that when you leave here after a few hours is just one more good idea as we work together on this most difficult of challenge.

Good luck with your summit.