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.