Things Do Look Different Here;
Land Use Rules Allow Exceptions, But Good Luck Getting One
By Scott R. Cooper, Crook County Judge and Heidi Bauer, Crook County Land Use Counsel
Commissioned for the inaugural issue of "The Independent", a journal of independent thought scheduled for publication in Bend, Oregon, July 2008
The “Big Look” task force created by the Oregon Legislature in 2005 to take a comprehensive look at Oregon’s vaunted land use system 35 years after its birth, recently reported its initial findings. The 10-member, geographically diverse task force consulted with interest groups and citizens around the state. Among its proposed recommendations, the task force suggests:
The Oregon Land Use Planning Program …has become complex and rigid over time—the clear connection between many policy regulations and desirable policy outcomes has become lost. Some lands that have little economic utility for farming or forestry are classified for those uses, creating significant frustration. Rural zoning has very little nuance or variation. At the same time, there is little or no protection for significant natural areas such as important wildlife habitat and watersheds.
If nothing else comes out of the task force, many rural Oregon elected officials, land use planners and private property rights advocate can point to this paragraph with a sigh of relief and remark, “Finally, somebody has seen the light!”
When Oregon’s land use planning system was adopted, it was promoted as the system every state would eventually adopt. That prediction did not quite work out. To date, no other state has adopted the Oregon land use system. A cynic might ask, if imitation is the sincerest form of flattery, is the failure to imitate the sincerest form of criticism?
A key glitch in making Oregon’s land use system workable is the failure in rural Oregon to distinguish true “resource land” from “non-resource” land. The fault for this largely lies with local governments themselves, although they were not encouraged in by the State of Oregon to make distinctions.
When land-use planning was originally implemented, counties and cities were required to classify the lands within their jurisdictions into broad categories. Great care and attention was paid to segregating residential, commercial and industrial lands into distinct zones. Outside of city limits, permissible levels of density consumed most of the political oxygen as people argued about whether specific rural residential areas were better classified as 5-acre, 10-acre or 20-acre minimum lot sizes. Once those debates were settled, the land mass that remained was classified as farm or forest, depending mainly on whether it had a merchantable supply of timber.
The reasons for lack of specificity are fairly straightforward. Counties did not have the money to perform the analysis needed to determine a parcel-by-parcel analysis of the suitability of land for agriculture. Counties, for the most part, also lacked the tools that would have made such analysis possible.
Even today, large tracts of rural Oregon have never had its soils data mapped. Tools such as geographic information systems (GIS) and satellite imagery have come on line only in the last ten years. Currently, even the ordinary citizen can immerse himself in data. However, 30 years ago absent internet search engines, detailed data on farm productivity had to be combed from dusty volumes often accessible only through offices thousands of miles away. The environment discouraged detailed analysis.
Clearly, access to information has changed. The “Big Look” report notes opportunities and recommends improvements in the Oregon land use system to keep it up to speed with technology and the times. Positive steps undoubtedly, but for the time being, Oregonians are still stuck with old systems and aged mechanisms to address outdated plans created with broad brush approaches and limited accuracy.
The State’s chosen vehicle for dealing with most of the shortcoming of existing maps is a tool called an “exception area.”
A local government can make an “exception” to allow uses of land which would ordinarily be proscribed if it makes one or more of several possible findings.
One “exception” is to allow development when the land in question is “physically developed” to the extent that it can no longer support a use allowed by the underlying zone. For example, a piece of ground might have clustered development of a few homes. The grouping of the homes render the ground unsuitable for agricultural and might allow the construction of other non-farm dwellings under an “exception” theory.
An alternative theory justifying an exception is to allow a normally retricted use in an area that is considered “irrevocably committed” to non-agricultural use. This exception may be allowed because existing adjacent uses or barriers to practical use of the land render normal uses permitted in the zone to be infeasible. This argument is often used to justify an exception on farm ground around which residential development has been allowed to encroach to the point that farming is impractical because normal farming activities—the sort which involve dust, smoke, noise, odor, late-night lights, etc.--create conflict with neighbors which is impossible to overcome. Sometimes this argument is used when a piece becomes isolated from identically zoned land adjacent by construction of physical features such as highways or other public works projects. Such “orphan” pieces of land occasionally can qualify for an “exception.”
Frankly, determining the suitability of a proposed piece of property for an exception under one of these theories is generally straightforward. The third “exception” under state law is the one which most often creates confusion for landowners, neighbors and local government alike.
The third basis embodied in rule which justifies an “exception” is that the subject property meets four tests: there are “reasons” which justify why the state policy embodied in state land use goals under which a particular zone was created do not apply; there are no reasonable “alternatives” to the site in question; the long term environmental, economic, social and energy consequences of allowing an “exception” have no greater impact than if an exception was allowed somewhere else; and the proposed use under an “exception” will be compatible with or can be made compatible with surrounding uses through the imposition of conditions.
This last test is so convoluted and vague and utterly lacking in both clarity and definition, that it is practically an impossible hurdle for any applicant to jump. It is this kind of test which gives land use planners and local government officials headaches, keeps special interest groups and landuse attorneys in business and drives private property owners to extreme measures such as the adoption of Measure 37. This is the kind of language which caused the Oregon City Planners Association, in a December 2006 report to the “Big Look” task force to comment that the state’s “…current land use laws have become “a complex, legalistic, and perplexing statewide land-use planning system that is difficult to understand and implement for average citizens as well as planning officials.”
Crook County recently found itself on the receiving end of this confusion with a pair of landuse decisions which were appealed to the state’s land use court, the Land Use Board of Appeals. These two cases classically illustrate the deficiencies of the current “exceptions” process.
In one case, an applicant applied to acquire an exception involving a 40-acre piece of farm ground. The property in question was under active cultivation and growing two or three crops of alfalfa each year. The piece had active water rights and was under irrigation. Testimony at the hearing from both the applicant and the neighbors was that there had been no complaints related to the use of the property as farm ground, and in fact, it was the neighbors themselves who were most vocal in arguing that the property ought to be retained as farm ground. The only strong argument made by the applicant in support of his position was that the acreage had been divided years ago by U.S. highway 26 from the adjacent farm ground across the highway. The applicant therefore argued that the ground in question was irrevocably committed to another use and qualified for an exception because of his inability to farm it—an argument which conveniently ignored the fact that the property in question even at the time of the original hearing was actively being farmed.
About the same time, a second applicant applied for permission to place a home on a small parcel in the extreme eastern part of the county, approximately 4 miles east of the community of Paulina. The applicant could not possibly qualify for an “exception” under the “irrevocably committed”, “physically developed” or “reasons” criteria. Instead, he had to apply under another elaborate and tortuous process for a non-farm dwelling on an existing parcel. The applicant applied to place a home on his non-irrigated property located in a subdivision which predates the adoption of land use planning. Four of the 23 lots in the subdivision ranging from 5- to 40-acres have existing homes on them. The applicant proposed to be the fifth home in the area, located on a 25-acre tract adjacent to a large irrigated farm parcel in excess of 500 acres. The owner of the large acreage appealed, claiming that the existence of one additional home would destabilize agriculture in the area and further would open the potential for the construction of a total of 29 possible homes in an area of 2000-square acres.
What do you suppose the outcome of these cases was?
In the first case, LUBA 2007-241, Scott v. Crook County, the Land Use Board of Appeals sustained the 2-1 decision of the County Court and declared the alfalfa field in question to be irrevocably committed to non-agricultural purposes, by virtue of the fact that is was segregated from the adjacent land by a highway and surrounded by residential uses. Never mind that the farmer was making a living off of it!
In the second case, LUBA 2007-250, Young v. Crook County, the Land Use Board of Appeals remanded the matter to the County Court for further consideration. The board found that the potential for 29 more homes was a threat to the stability of agriculture and the land use pattern of the area. The board noted that 17 of the 29 homes would have been located in the subdivision already in the area, but was disturbed at contemplating the impact of 12 more homes in the remaining 625 acres (a maximum density of 1 home per 50 acres.) The board ordered the County Court to reconsider the matter and ordered the court to prove that allowing one additional home would not increase the “historic rate of development” and would not “not reach a level that destabilizes the agricultural land use pattern in the area.” Apparently, no member of LUBA ever learned the axiom taught in all speech and debate classes, “You can’t prove a negative,” nor does any member of LUBA understand that, according to the most recent Census of Agriculture, 56 percent of the farms in Crook County are 50 acres in size or less.
These two cases are illustrations of why Oregon’s land use system is badly in need of reform. It is hard for ordinary citizens and landowners to accept that state policy requires them to spend thousands of dollars in application fees and legal fees, only to hear their lawyers make highly technical arguments which often are not fully understood by applicants, opponents or policymakers. The fact that the outcome is never certain and that the process of decisionmaking which drags applicants, opponents and local governments alike through multiple layers of judgment making is “salt in the wound” of frustrated property owners. For the most part, applicants only desire to build a house, to fund a retirement, or send a kid to college by putting unproductive ground, which will never be capable of being cultivated or making a profit, to its highest and best use.
The “Big Look” task force is right to call for reform of the State’s land use system, but several more years may elapse before its recommendations are heard, watered down and acted upon through the legislative process. The exceptions process, by contrast, can be altered at any time, albeit using a rigorous process process, by the Oregon Land Conservation and Development Commission by using its administrative rule-making authority to revise the statewide planning goals and associated administrative rules. An exceptions process which more clearly defines the objective characteristics of land suitable for exception—based on soil type, parcel size, adjacent levels of development, presence of cultivation, existence of irrigation or water rights, incidence of timber cover, inclusion in a critical wildlife habitat, presence of natural resources deemed worthy of protection—could easily be crafted to replace the current unwieldy system.
Landowners primarily want certainty in the use of their land. Certainty is the fuel for market forces that underpin health economies.Unfortunately, Oregon’s land use system—particularly in the use of the “exceptions” policy as it relates to land labeled with the catch-all zone of “exclusive farm use” provides anything but certainty.
Revising the exceptions definitions and process would be a step in the direction of restoring the increasingly frayed credibility of Oregon’s land use system in rural areas, and give it a chance to achieve the model-status which its founders envisioned.
Bio notes: Judge Scott R. Cooper is a former Prineville city councilor and is currently serving a second term as chair of the Crook County Board of Commissioners, known as a County Court. He is also the chief executive officer for the county. Heidi Bauer is planner and land use counsel for the Crook County Planning Department, with law degrees from University of Denver and City University of London in the United Kingdom.
By Scott R. Cooper, Crook County Judge and Heidi Bauer, Crook County Land Use Counsel
Commissioned for the inaugural issue of "The Independent", a journal of independent thought scheduled for publication in Bend, Oregon, July 2008
The “Big Look” task force created by the Oregon Legislature in 2005 to take a comprehensive look at Oregon’s vaunted land use system 35 years after its birth, recently reported its initial findings. The 10-member, geographically diverse task force consulted with interest groups and citizens around the state. Among its proposed recommendations, the task force suggests:
The Oregon Land Use Planning Program …has become complex and rigid over time—the clear connection between many policy regulations and desirable policy outcomes has become lost. Some lands that have little economic utility for farming or forestry are classified for those uses, creating significant frustration. Rural zoning has very little nuance or variation. At the same time, there is little or no protection for significant natural areas such as important wildlife habitat and watersheds.
If nothing else comes out of the task force, many rural Oregon elected officials, land use planners and private property rights advocate can point to this paragraph with a sigh of relief and remark, “Finally, somebody has seen the light!”
When Oregon’s land use planning system was adopted, it was promoted as the system every state would eventually adopt. That prediction did not quite work out. To date, no other state has adopted the Oregon land use system. A cynic might ask, if imitation is the sincerest form of flattery, is the failure to imitate the sincerest form of criticism?
A key glitch in making Oregon’s land use system workable is the failure in rural Oregon to distinguish true “resource land” from “non-resource” land. The fault for this largely lies with local governments themselves, although they were not encouraged in by the State of Oregon to make distinctions.
When land-use planning was originally implemented, counties and cities were required to classify the lands within their jurisdictions into broad categories. Great care and attention was paid to segregating residential, commercial and industrial lands into distinct zones. Outside of city limits, permissible levels of density consumed most of the political oxygen as people argued about whether specific rural residential areas were better classified as 5-acre, 10-acre or 20-acre minimum lot sizes. Once those debates were settled, the land mass that remained was classified as farm or forest, depending mainly on whether it had a merchantable supply of timber.
The reasons for lack of specificity are fairly straightforward. Counties did not have the money to perform the analysis needed to determine a parcel-by-parcel analysis of the suitability of land for agriculture. Counties, for the most part, also lacked the tools that would have made such analysis possible.
Even today, large tracts of rural Oregon have never had its soils data mapped. Tools such as geographic information systems (GIS) and satellite imagery have come on line only in the last ten years. Currently, even the ordinary citizen can immerse himself in data. However, 30 years ago absent internet search engines, detailed data on farm productivity had to be combed from dusty volumes often accessible only through offices thousands of miles away. The environment discouraged detailed analysis.
Clearly, access to information has changed. The “Big Look” report notes opportunities and recommends improvements in the Oregon land use system to keep it up to speed with technology and the times. Positive steps undoubtedly, but for the time being, Oregonians are still stuck with old systems and aged mechanisms to address outdated plans created with broad brush approaches and limited accuracy.
The State’s chosen vehicle for dealing with most of the shortcoming of existing maps is a tool called an “exception area.”
A local government can make an “exception” to allow uses of land which would ordinarily be proscribed if it makes one or more of several possible findings.
One “exception” is to allow development when the land in question is “physically developed” to the extent that it can no longer support a use allowed by the underlying zone. For example, a piece of ground might have clustered development of a few homes. The grouping of the homes render the ground unsuitable for agricultural and might allow the construction of other non-farm dwellings under an “exception” theory.
An alternative theory justifying an exception is to allow a normally retricted use in an area that is considered “irrevocably committed” to non-agricultural use. This exception may be allowed because existing adjacent uses or barriers to practical use of the land render normal uses permitted in the zone to be infeasible. This argument is often used to justify an exception on farm ground around which residential development has been allowed to encroach to the point that farming is impractical because normal farming activities—the sort which involve dust, smoke, noise, odor, late-night lights, etc.--create conflict with neighbors which is impossible to overcome. Sometimes this argument is used when a piece becomes isolated from identically zoned land adjacent by construction of physical features such as highways or other public works projects. Such “orphan” pieces of land occasionally can qualify for an “exception.”
Frankly, determining the suitability of a proposed piece of property for an exception under one of these theories is generally straightforward. The third “exception” under state law is the one which most often creates confusion for landowners, neighbors and local government alike.
The third basis embodied in rule which justifies an “exception” is that the subject property meets four tests: there are “reasons” which justify why the state policy embodied in state land use goals under which a particular zone was created do not apply; there are no reasonable “alternatives” to the site in question; the long term environmental, economic, social and energy consequences of allowing an “exception” have no greater impact than if an exception was allowed somewhere else; and the proposed use under an “exception” will be compatible with or can be made compatible with surrounding uses through the imposition of conditions.
This last test is so convoluted and vague and utterly lacking in both clarity and definition, that it is practically an impossible hurdle for any applicant to jump. It is this kind of test which gives land use planners and local government officials headaches, keeps special interest groups and landuse attorneys in business and drives private property owners to extreme measures such as the adoption of Measure 37. This is the kind of language which caused the Oregon City Planners Association, in a December 2006 report to the “Big Look” task force to comment that the state’s “…current land use laws have become “a complex, legalistic, and perplexing statewide land-use planning system that is difficult to understand and implement for average citizens as well as planning officials.”
Crook County recently found itself on the receiving end of this confusion with a pair of landuse decisions which were appealed to the state’s land use court, the Land Use Board of Appeals. These two cases classically illustrate the deficiencies of the current “exceptions” process.
In one case, an applicant applied to acquire an exception involving a 40-acre piece of farm ground. The property in question was under active cultivation and growing two or three crops of alfalfa each year. The piece had active water rights and was under irrigation. Testimony at the hearing from both the applicant and the neighbors was that there had been no complaints related to the use of the property as farm ground, and in fact, it was the neighbors themselves who were most vocal in arguing that the property ought to be retained as farm ground. The only strong argument made by the applicant in support of his position was that the acreage had been divided years ago by U.S. highway 26 from the adjacent farm ground across the highway. The applicant therefore argued that the ground in question was irrevocably committed to another use and qualified for an exception because of his inability to farm it—an argument which conveniently ignored the fact that the property in question even at the time of the original hearing was actively being farmed.
About the same time, a second applicant applied for permission to place a home on a small parcel in the extreme eastern part of the county, approximately 4 miles east of the community of Paulina. The applicant could not possibly qualify for an “exception” under the “irrevocably committed”, “physically developed” or “reasons” criteria. Instead, he had to apply under another elaborate and tortuous process for a non-farm dwelling on an existing parcel. The applicant applied to place a home on his non-irrigated property located in a subdivision which predates the adoption of land use planning. Four of the 23 lots in the subdivision ranging from 5- to 40-acres have existing homes on them. The applicant proposed to be the fifth home in the area, located on a 25-acre tract adjacent to a large irrigated farm parcel in excess of 500 acres. The owner of the large acreage appealed, claiming that the existence of one additional home would destabilize agriculture in the area and further would open the potential for the construction of a total of 29 possible homes in an area of 2000-square acres.
What do you suppose the outcome of these cases was?
In the first case, LUBA 2007-241, Scott v. Crook County, the Land Use Board of Appeals sustained the 2-1 decision of the County Court and declared the alfalfa field in question to be irrevocably committed to non-agricultural purposes, by virtue of the fact that is was segregated from the adjacent land by a highway and surrounded by residential uses. Never mind that the farmer was making a living off of it!
In the second case, LUBA 2007-250, Young v. Crook County, the Land Use Board of Appeals remanded the matter to the County Court for further consideration. The board found that the potential for 29 more homes was a threat to the stability of agriculture and the land use pattern of the area. The board noted that 17 of the 29 homes would have been located in the subdivision already in the area, but was disturbed at contemplating the impact of 12 more homes in the remaining 625 acres (a maximum density of 1 home per 50 acres.) The board ordered the County Court to reconsider the matter and ordered the court to prove that allowing one additional home would not increase the “historic rate of development” and would not “not reach a level that destabilizes the agricultural land use pattern in the area.” Apparently, no member of LUBA ever learned the axiom taught in all speech and debate classes, “You can’t prove a negative,” nor does any member of LUBA understand that, according to the most recent Census of Agriculture, 56 percent of the farms in Crook County are 50 acres in size or less.
These two cases are illustrations of why Oregon’s land use system is badly in need of reform. It is hard for ordinary citizens and landowners to accept that state policy requires them to spend thousands of dollars in application fees and legal fees, only to hear their lawyers make highly technical arguments which often are not fully understood by applicants, opponents or policymakers. The fact that the outcome is never certain and that the process of decisionmaking which drags applicants, opponents and local governments alike through multiple layers of judgment making is “salt in the wound” of frustrated property owners. For the most part, applicants only desire to build a house, to fund a retirement, or send a kid to college by putting unproductive ground, which will never be capable of being cultivated or making a profit, to its highest and best use.
The “Big Look” task force is right to call for reform of the State’s land use system, but several more years may elapse before its recommendations are heard, watered down and acted upon through the legislative process. The exceptions process, by contrast, can be altered at any time, albeit using a rigorous process process, by the Oregon Land Conservation and Development Commission by using its administrative rule-making authority to revise the statewide planning goals and associated administrative rules. An exceptions process which more clearly defines the objective characteristics of land suitable for exception—based on soil type, parcel size, adjacent levels of development, presence of cultivation, existence of irrigation or water rights, incidence of timber cover, inclusion in a critical wildlife habitat, presence of natural resources deemed worthy of protection—could easily be crafted to replace the current unwieldy system.
Landowners primarily want certainty in the use of their land. Certainty is the fuel for market forces that underpin health economies.Unfortunately, Oregon’s land use system—particularly in the use of the “exceptions” policy as it relates to land labeled with the catch-all zone of “exclusive farm use” provides anything but certainty.
Revising the exceptions definitions and process would be a step in the direction of restoring the increasingly frayed credibility of Oregon’s land use system in rural areas, and give it a chance to achieve the model-status which its founders envisioned.
Bio notes: Judge Scott R. Cooper is a former Prineville city councilor and is currently serving a second term as chair of the Crook County Board of Commissioners, known as a County Court. He is also the chief executive officer for the county. Heidi Bauer is planner and land use counsel for the Crook County Planning Department, with law degrees from University of Denver and City University of London in the United Kingdom.
posted by Scott Cooper | 10:17 PM
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