Past Is Prologue: A Farewell

By Scott R. Cooper, Crook County Judge
This column first appeared in the Central Oregonian of Prineville, Oregon, December 2008

At the end of December, I will leave office after eight years of county judge and four years as a Prineville city counselor. Thus, this my final column in my capacity as chief elected official for Crook County.

As I leave office, it is with a great sense of pride in our community and what it has become and what it is becoming.

First, a note about what we are not: Prineville and Crook County are not Bend. In fact, we are less like Bend today than we were when I was a child growing up here, and Redmond was about the same size as us ,and Bend was only slightly bigger. When I took office, it was with a determination that Prineville would find its own voice within the region and that we would not simply become a suburb in the Central Oregon milieu. All you have to do is listen to the popular media to find out that we achieved that goal. Reporters and editors regularly seek out Prineville and Crook County to get a different point of view, to try and understand another side of the complexity that is this region and community. Our voice is heard in Salem and in Washington, D.C., and every policymaker knows that a Deschutes County Commissioner or Bend City Councilor doesn’t speak for Crook County or Prineville any more than a Jefferson County Commissioner or a Madras city councilor. We strove to achieve identity, and as I depart it is with deep satisfaction that I observe that we have placed ourselves firmly on Oregon’s map.

A second note about what we are not: We are not Eastern Oregon. There was a time when Crook County and Prineville were regularly lumped into the category of “all those other counties east of the Cascades.” But just in my tenure, we have seen Oregon divide into three parts, not two. Perhaps they were always there, and we have simply raised the profile of the central region, but if so the raising of it has been for the better. Central Oregonians are different from the rest of Oregon because they deftly combine common sense with imagination and a realistic sense of the possible. They are not rooted in a past which is unlikely to return but nor are they hopelessly in love with a new vision that isn’t achievable, given our resource base. Central Oregonians, and Crook County residents in particular understand the need to feed their families and are willing to sacrifice resources to make that happen, but at the same time they have never lost their sense that it is just as important to feed the soul, and they preserve the land and special places around them for just that purpose. We have one foot firmly planted in the west, recognizing our economic interdependence with the more populous part of the state, and another planted in the east where we feel a strong affinity for the historic and cultural roots we share with our neighbors. Like children from a split family we are equally at home in the house of Mom or Dad, even while we sometimes wonder why our parents can’t just get along.

A third note about who we are not: as Crook County and Prineville residents, we are not at the pinnacle of what we are going to become. In fact, we are only at the start. While the growth and development we have experienced in the last decade has been at a pace which has seemed almost overwhelming at times, we have barely begun to change. Every force and reason which caused people to want to be in this highly desirable area in this decade is still in play. Once we are through the current economic hiccup which is dragging down the national, state and regional economy, the opportunity for growth and change will re-emerge with all its previous force and ferocity. Whether the community can position itself to hang on for the ride while managing to keep some semblance of what is best about us is the challenge for a new generation of leaders.

Crook County has been for me a wonderful place: a wonderful place to be raised, a wonderful launching pad for my early life and career, a wonderful place to return to in mid-career and a wonderful place to raise my three young children. It is a place which has nurtured me, just as it is nurturing my children to become self-confident, intelligent young people who understand that community is more than just the house in which you live. Just as I have benefitted from the economic opportunities that the community has offered, I hope economic opportunity will continue to grow and that someday my children will be able to find economic opportunity here, so that they can pass along the sense of rootedness which is so important to me to their children and to their children’s children as well. Just as the sun glinting on the snow-capped Cascades or the site of Prineville nestled in the valley as you come down over the hill raises my spirits, just as the cathedral-like Ponderosa forest fills me with a sense of awe and a drive through the vast loneliness of the eastern county following the lazy winding river gives me inspiration as I ponder the hardiness of the pioneers who came before me, I hope these sights, sounds and smells will stir the souls of my children as well.

We who live here are blessed with an awesome responsibility: the responsibility to love the land while at the same time to coax a living from the land. We must honor the past, even while we recognize that the past is only prologue to what is yet to be. Although it is a hard thing to do, we must try to steer the middle course in all things, veering neither too far to the left nor too far to the right, lest we founder upon the rocks of tradition or beach ourselves on the sands of progress.

I have done my best over the past twelve years of public service to steer the ship of local government in that way. I’ve known I was steering the course correctly when I’ve felt the slings and arrows coming at me from both banks of the river of fortune. There have been glorious successes and miserable failures. I’ve learned right along with all of you how to better navigate each treacherous passage, and I’ve tried to leave good maps for the next generation of pilots in the form of a well-administered system of government, a strong financial position and a group of staff and volunteers who are dedicated and passionate about serving this county and community.

Throughout my tenure in office, I have kept taped to the inside of the court notebook which contains my court papers a single verse from the Old Testament Book of Micah. It has guided me in difficult decisions. As I leave, I offer it to my successors and to the next administration as a goalpost for public servants, now and in the future: “And what does the Lord require of you? To act justly, to love mercy and to walk humbly before your God.”

The principle is as sound today as it was when it was written.

Thank you for the honor and a privilege of serving you.

Eulogy: Remembering a friend

A Eulogy For Lynne Angland
Delivered by Scott R. Cooper, Crook County Judge
November 29, 2008, Prineville Senior Center

When I reflect back on Lynne’s life, I am inclined to think about fire.

You all know that Lynne was a redhead—and she lived like a redhead, full of energy and strongly held opinions and a feisty and indomitable spirit. A spark, a fire, a flame lived within Lynne, and you felt its heat from the moment that you met her.

Yet Lynn was one of the most level-headed, kind persons I ever met. You could disagree with Lynne. I sometimes did. And she would listen politely and respectfully and then carefully with an accountant’s precision, explain why you were wrong. The consummate professional, the only way you ever knew that your failure to agree with Lynne didn’t sit well was if you looked into those big blue eyes: which would be snapping , popping and alive with intelligence, a willingness to fight for what she believe was right and sheer guts and determination. To stand near Lynn was to stand by the open fire; to stand against Lynne was to feel the increasing heat of the flames.

I loved the fact that Lynne put her passions into play for others. When she launched her in-office daycare, we all thought she was nuts. I was sitting on the board of a nonprofit daycare at the time, and we were struggling to make ends meet with donations and tax-exempt status. I know Lynne was a creative accountant, but even she couldn’t prop up the balance sheet with goodwill alone! Eventually, that experiment proved to be too costly, but Lynne didn’t admit defeat; she just changed directions. Awakened to the problem of affordable daycare faced by many working parents, she set out to build a better system at the local and state level to ensure that this need was met. She didn’t do this because she had some amazing education expertise in this area: she did it because when Lynne saw a problem, she didn’t just leave it to someone else: she had to fix it.

Lynne’s involvement with the Soroptimists and the Senior Center was a godsend. The ladies (and their beleaguered husbands) who run that organization are really amazing. They single-handedly remove from local government and the community the responsibility for providing one of the most important social service any local government has to address. And they do it very well. But they do it better since Lynne came along and began to lend her expertise to examining the bottom-line and suggesting that whatever you are doing today isn’t as important as you are going to end up tomorrow, if you keep doing it. Lynne helped ensured the financial stability of an organization that is not only nice but is absolutely necessary for serving the Crook County senior community. Almost no one who is directed served by the senior center appreciated the importance of her commitment and its critical timing to the senior center’s future success. Certainly, the patrons of the senior center seldom connected Lynne’s involvement with the benefits they daily received. That was fine with Lynne. She was ever the background player. She was one of those people those of us in community leadership value most: the kind of person you turn to when a job needs doing, needs doing well and you don’t necessarily need the person doing it to grandstand and hog the limelight while they fix the problem. Lynne was made for that role, and she played it very well.

There are only three reasons why the county’s Natural Resource Planning Committee has survived. The passion of Sarah Thomas, a friend of Lynne’s whom we mourned earlier this year, was one of them; the leg work of Mike Lunn, who carries on alone, was another; and the leadership of Lynne Angland was the third. For those who don’t know about this committee, it is rather unique in Oregon’s local government structure. It is a group of people, NOT like-minded, who depend upon and care about the natural world in Crook County. It is comprised of farmers and ranchers, timber interests, local businesses, community leaders, agency personnel, environmentalists and other diverse groups. They gather once a month to discuss subjects like how to protect watersheds and how to promote forest health and how to graze cattle without damaging the land and how to protect frogs and wolves and fish and such. Lynne presided over this sometimes fractious group with good humor, with passion and with deep and abiding interest in all they talked about. What this group does is far outside the realm of cold numbers lined up in neat columns, but Lynne wasn’t the kind of person whose life and whose broad interests were ever going to be confined or defined by a ledger sheet.

There is little consolation to be taken in Lynn’s premature departure. Her absence leaves a hole too big too fill. Her family, whom she loved deeply, will miss her most, but her friends will miss and mourn her for days, weeks, months and years to come. The only silver lining to be found in this tragedy is that when Lynn left us, on her way to attend a state childcare commission meeting, she was on her way to do something bigger than herself, more important than just her community and exemplary of her passions and commitments to making her world a better place to be. Her flame flickered bright to the very end, and I have a hunch, that’s the way Lynne would have wanted to exit the world.

Let me close with poem loosely borrowed by Edna St. Vincent Millay. When I heard about Lynne’s passing, I immediate thought of this, and it gave me a little comfort, because I think it very succinctly sums up the Lynne Angland I knew, admired and called my friend:

My candle burned at both ends,
It did not last the night.
But oh my loved ones and my friends,
It gave such lovely light.

Thoughts at the Twilight

This article first appeared in the Central Oregonian of Prineville, Oregon, November 2008

At this writing, the election of 2008 is behind us (or at least I hope it is.) A new County Court is now elected, and I am entering the final phase, the twilight, of my 12-year political career as the transition to the new county administration begins.

It will be a strange moment when I leave office after Dec. 31. No more cell phone ringing urgently. No waking up at midnight to check the weather and wonder if the snowplows have been dispatched yet to Juniper Canyon. No more calls at home from constituents just as I’m sitting down to dinner or putting the kids in bed. I can once again read the morning paper without that nagging worry about whether the reporter got the story right. Best of all, I hope I’m done for good with same-day over-and-back trips to Salem starting at 5 a.m. and ending at 8 or 9 at night.

For the most part, my successor is welcome to it, but despite the relief I feel at handing off much of this job to someone else, there is still a tiny, tiny piece of me that regrets that I won’t be around in a leadership role as the next chapter of Crook County history.

You see, serving in public office isn’t so much about having something to do as it is about serving a passion. Any one of my predecessors in the office of county judge and county commissioner can tell you, they didn’t do it for the money. All of us were inspired by the idea that maybe we could run things just a little better. Our hope was that as a result of our service, we might leave the county and its citizens a little—or a lot—better than we found them, and all of us in our heart of hearts had a sneaking suspicion on leaving office that the next administration might change thing.

And of course change is exactly what happens. After all, that’s the point and the promise of an election: it’s an opportunity to reconsider, to allow new people to bring fresh approaches to persistent problems, to throw out what we have been doing and do something different in the perennial hope of a better result. Only in this way does the grand experiment that is democracy ensure the continuous and forward advancement of our system over time.

Of course, not everybody’s plan works out as envisioned. Make no mistake, campaigning successfully is a walk in the park compared with the challenges of governing successfully!
The role of the candidate is to promise. Reality has a funny way of forcing one to adjust one’s promises after the fact.

Do you remember the campaign of George W. Bush 2000? We were going to get out of the business of “nation building.” We were going to “decrease dependence on foreign oil.” We were going to rein in federal spending. Then came Sept. 11, 2001. Oops.

Over the course of the last year, I’ve heard candidates promise much to the community. We’re going to have a better economy, planned growth, better communication, open government, etc., etc. etc.

At the same time, I’ve been reading the papers and watching the news as the housing market has taken a nose dive, consumer confidence has plummeted, standards of living for retirees dependent on investment income have fallen, manufacturing has slumped, unemployment has risen and federal and state revenue sharing has dropped.

Despite the promises of candidates to deliver the Promised Land in local government, they may be fortunate if country, county and community simply survive the next four years intact.
Perhaps the most amusing campaign promise of all is what I like to refer to as the “Goldilocks” standard—the idea that the government through regulatory intervention can somehow control the destiny of the community so that its business growth, development patterns and conflict arising out of changing economic and social norms can somehow be implemented at a pace which is neither too hot nor too cold but is “just right.” In truth, that is the Holy Grail of every government and every elected official, and like the Holy Grail, it has never been discovered. The boom and bust cycle of the American economy forces communities and government alike to take advantage of good times and regroup in bad times. A government which applies the brakes in the up-times risks slowing the economic engine to a point that it can’t be revved again when the inevitable downturn begins. That is both political and economic reality. Always has been, always will be.

Be that as it may, the newly elected candidates can do some things right as they move forward with their new responsibilities. While those things lack the “sex appeal” of fulfilling policy promise, they probably will mean more to quality of life for all of us.

Boiled down, an elected official in local government needs to do six basic things:

· Sketch a vision not of what has been but of what could be.
· Hire good people and get out of their way.
· Appoint volunteers who have passion and competence for their contributions to community betterment.
· Budget modestly, providing what is needed but not overburdening those who are expected to foot the bill.
· Work well with other units of government. You never know when you will need help from your neighbor.
· Stay in touch with your community and its emerging and changing values

As I close my tenure in office, I can look back on my tenure in office and realize that I’ve committed myself intensely to all of these areas. Some of these tasks I’ve performed better than others. Sometimes, I’ve been more on top of my game than at other times. No doubt my successor will tackle these challenges in his or her own unique way, and I wish him or her well in doing that.

Elected office doesn’t come with a manual. No conference tells you what to do the day after you take the oath of office. It’s a “do it yourself” thing. I only hope that whatever the next administration does—and I ‘m sure it will do things differently than I have done them—that it will do them keeping these principles in mind.

They served me well, and in the long run they serve the people of Crook County well, too.

Choose Your Future

First published in the Central Oregonian, Prineville, Oregon, October 2008

The county court system is a very old system of county government in this country. A colonial import, it was at one time the system used by all of Oregon’s counties. Today, the system is retained by nine Oregon counties, all of the eastern. Oregon’s other 36 counties have switched to the more familiar system known as a “board of commissioners”

There is little difference between a county court and a board of commissioners other than the name. Their primary function is legislative. The courts themselves have no judicial powers. The key difference is in the office of county judge, a position within the court.

The county judge chairs the county court when it sits as a legislative panel. The judge also acts as a county administrator between sessions of the court, although he doesn’t have individual authority to hire and fire without the court’s consent. What the county judge doesn’t do is wear a black robe and pound a gavel. That function is the prerogative of circuit court judges.

Because the county judge has no judicial responsibility, he or she does not need to need to be an attorney. I am not an attorney, nor was my predecessor nor his predecessor nor his predecessor nor his predecessor. I don’t know of any of the county judges who have ever been attorneys at least in this century.

In the frontier days, the judge was simply someone from the community who could read and write and had a reasonable head for business and understanding of civics. It couldn’t be limited to an attorney because there weren’t enough attorneys to go around. Today, some citizens are confused by archaic references to county judges and county courts. To resolve the confusion, simply think of these positions as a board of commissioners and a county commission chair. In that light, the roles of these bodies became much more clear.

There are two candidates for county judge on the ballot this November. Democrat Kim Kambak is facing off against Republican Mike McCabe for county judge. Democrat Arleen Curths is facing off against Republican Ken Fahlgren for commissioner. I list them in alphabetical order. The listing should not be read as my preference. I do not endorse as a matter of policy.

The choice you make in these races is not inconsequential. Crook County faces some big issues in coming years. The county has a large budget and administers of significant services. Crook County serves over 25,000 citizens both within and outside the city limits. It collects nearly $6 million in property taxes and must raise nearly $24 million in fees and grants from other governments to keep services running. It has reserves of around $30 million which can be saved or squandered as the county court directs. Some 200 employees and their families depend on the court for employment, while 300-plus volunteers have to be recruited and appointed to fill various board, commission and committee positions essential government services.

None of these roles are well defined in the Oregon Constitution, Oregon statutes or in county ordinances. There are no job descriptions for these positions, and there is no legal authority to impose a job description on an elected official accountable only to the voters. Rather, the roles of the county judge and the county commissioners have evolved through tradition and are adjusted by various courts to meet the demands of the times and the personalities sitting on any given county court.

Despite the flexibility of the position, there are some common attributes that distinguish “good “county court member. “Good” members have common sense, the ability to work hard, a basic understanding of budgets and management of people, a basic concept of civics and how governments work at various levels, the ability to gauge the pulse of the community and the ability to make wise decisions about the community’s future. It is also helpful if individual court members can work well as a team since the court collectively is responsible for the community’s future.

An overlooked but equally important quality of the position is stamina. It can be great fun to be a court member. More often, it is not. Round-trips to Salem or Portland leaving at 6 a.m. and returning at 6 p.m. or even later can wear out the most vigorous court member, and when you get home, chores, family obligations, and community obligations and in the case of the part-time commissioners the demands of other employment still have to be addressed. The job is not for the frail or the faint of heart.

The ability to communicate matters enormously. The county judge and the county commissioners must be able to explain their positions to the public, sometimes in heated environments. If you are afraid of the media, this is not a job for you. You will be quoted—and eventually misquoted or quoted out of context. Civic groups want to hear from you occasionally and so do policymakers in Salem and even Washington, D.C. How you speak and present yourself—intelligently, grammatically and professionally—will in part determine how policymakers view the residents of Crook County.

But maybe the most important component of the job is the ability to multi-task and work on multiple projects at once. As the supervising authority for 30 distinct departments, counties have to provide more than 50 discreet functions within those departments. Staff and volunteers as well as citizens and taxpayers, other governments, media, outside interest groups, and sometimes natural forces such as fire, flood or landslide create a never ending kaleidoscope of activity, each piece of which must be minutely examined and understood in order to understand how it fits into the whole picture. This is not a job for someone who is not a quick study.

The choice of the next county judge and the next county commissioner will deeply impact your life, whether you know it now or not. Your decision should be based on more than popularity or a name-recognition contest. Take some time now before your ballot arrives and get to know the candidates, all of whom are eager to talk to you. Find out where they stand and how they think and how well they will fit into this job. Your future—our future—in Crook County very much depends on your choice.

National issues appealing but measures matter

By Scott R. Cooper, Crook County Judge
first published in the Central Oregonian, Prineville, Oregon, September 2008

American interest in political conventions is dead. In future, the conventions—long a television “filler” may be consigned to the cable channels while the networks opt for reruns of “American Idol” and “The Bachelor” to keep ratings up.

Or at least that was the convention wisdom before the 2008 conventions.

Nearly 38 million viewers are estimated to have watched Barack Obama’s speech. The speeches of John McCain and Sarah Palin tied for third place in the all-time history of viewership on Fox news, coming in only behind the President’s speech to the nation on the eve of the invasion of Iraq and a presidential candidates’ debate in 2004.

With numbers like that, the network’s pronouncements that the conventions are “dead” remind me of Mark Twain’s wry observation that “Rumors of my death have been greatly exaggerated!”

With the approach of the election this November, I think a lot of people who thought American and Oregonian interest in politics was dead are about to be proven wrong.

Both tickets have emerged post-convention energized by their respective candidates. For the first time in American history we have an African American, a woman and two old white guys—one from the East and one from the West on the tickets. There’s a little something for everyone.

And people aren’t just excited about their own candidates. They are being energized by their desire to ensure the defeat of the opposition as well.

Democrats are appalled by John McCain’s choice of a social conservative who seems to have every one of the party’s sacred cows in her gun sight and appears to be intent on slaughtering them all.

Republicans hear the twin rumbles of an approaching wealth redistribution engine threatening popular tax cuts and military doves flapping ever closer. Neither sound has much appeal.

All this drama will no doubt cause Oregonians to turn out and cast their votes in record numbers this November. But as they study the national candidates, I wonder how many of them are equally prepared to decide important questions that will be facing back home.

In addition to interesting “people” races, this November’s ballot has 12 important initiative and referendum questions as well. Arguably, the way Oregonians respond to these proposals may shape your life more than the new face in Washington, D.C.

Thus, it might be a good idea to study and consider these measures a little bit before your ballot arrives in about six weeks.

A good example of a question that has big implications for everyone who pays taxes is the question of whether to repeal the “double majority” requirement for raising property taxes. That’s exactly what is proposed in Measure 56, which would provide that money measures presented in the May and November elections need only pass by a majority of those casting ballots. Gone would be requirement that these measures have to also receive a nod of assent from 51 percent of those registered to voters. If passed, this measure undoubtedly will make raising taxes—a feat deemed nearly impossible under the current system—easier. More than one opponent, however, says that more taxes are the last thing we need in this state and in the present economy. Chances are you haven’t even thought about this question yet. Here’s your chance.

A pair of measures on the ballot—measures 57 and 61—will increase mandatory sentences for those convicted of drug trafficking, identity theft and property crimes. One measure is being sponsored by unsuccessful candidate for governor and attorney general Kevin Mannix who engages the electorate theses days through the initiative process. The other measure was placed on the ballot by the legislature as an alternative to the Mannix proposal. Whichever gets the largest number of votes will “win” and become law. The concern I have in all the hoopla about whether Mannix or the Legislature knows best is whether passing either measure is good for Oregon. While cracking down on crime is a desirable in and of itself, the cost is high. Since the state’s money basically goes to three places: education, care for the elderly, the disabled and low-income people and corrections, are we willing to live with bigger elementary school classes and fewer caseworkers investigating abuse of seniors in order to ensure that the neighborhood crackhead gets a $40,000 per year room and board package plus education and job training courtesy of the state of Oregon. I’m not sure the trade off is worth the price.

There’s yet another measure that I think deserves some deeper attention: Measure 58 prohibits teaching a public school student in a language other than English for more than two years. This measure reflects the impatience of those who do not appreciate their scarce tax dollars being used to provide one-on-one instruction to the children of non-English speaking families year-after-year. I totally agree with and support the idea that we are an English-speaking nation and that children attending public schools need to be English proficient; however, I’m not sure this is the way to achieve that goal. As the parent of an elementary school child who speaks perfectly good English, the last thing I want is more valuable instructional time taken away from teaching my child reading, writing and math. In this day and age, the Number One imperative for teachers is to raise test scores among low-performing kids. If they fail to do that, schools can suffer dire financial consequences. Teachers already struggle to try to provide challenging curriculum for all 25 students in the typical classroom. Put a couple of non-English speaking kids receiving no outside help in the mix, and my kid may never be presented with challenging curriculum. While the concept is right, this may be a measure fraught with unintended consequences.

These are just a few of the measures on the ballot this November. All will be highlighted in your Voters Pamphlet. You can also study them online at the Oregon Secretary of State’s website at http://www.sos.state.or.us/ under the elections tab. These issues are going to be important to all of us and to the future of our communities and our children, regardless of whether JoBama or McPalin moves into the White House.

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.

A Mighty Task

By Scott R. Cooper, Crook County Judge

In October of last year, the Governor called. Well technically, the Governor’s office called. The guy on the other end of the line is a higher-up in the Governor’s office and someone who has deep ties to Crook County, his grandfather having been a founding rancher in the Powell Butte area and a former county commissioner.

“Scott, the Governor has a favor to ask,” the staffer said.

I was instantly on alert. Every time the Governor asks for a favor, it ends up costing me, politically or financially.

“I’m awfully busy,” I replied, hedging my bets “but what does he want?”

“The Governor wants you to serve on a task force about resolving the county payments problem,” my friend said.

I ruminated about this. “The Governor wouldn’t like what I have to say about that issue,” I replied. “The county payments problem is partially about the failure of the federal government to do its job, but it’s also about some counties that don’t want to pay their own way. Besides, Crook County has tightened its belt and fixed its problems, and I’m not really sympathetic to people who are sitting around waiting for a miracle, that probably isn’t going to happen.”

“That’s definitely a point of view,” my friend said diplomatically, “and that’s why the Governor wants you to serve so you can say that.”

“Who else is serving” I asked, still suspicious?

“Bobby Green, C.W. Smith and Mark Labhart.”

“Who else?”

“You, if you accept.”

I thought about this. Bobby Green is a formidable commissioner from Lane County with a lot of clout statewide. He is the immediate past president of the Association of Oregon Counties. He played football for the University of Oregon and has been trading up on his athletic bona fides ever sense. C.W. Smith is the former sheriff of Jackson county turned county commissioner. C.W. is everybody’s best friend and keeps everybody laughing. It’s hard to win arguments with C.W. because he is so likable and he uses humor so well. Mark is a very bright commissioner from Tillamook County. He has a mastery of the intricate details of county government that few people could match. If the three of them were to gang up on me, I’d get clobbered.

“Anybody else,” I asked?

“Every agency head in state government, members of the House and Senate appointed by the Speaker and the President, staff from the governor’s office and a representative from the cities. We may add other people as we go along. The deputy chief of staff is going to chair the task force. I’ll tell you what. Try it, and if you don’t like it, you can quit.”

Feeling vaguely suckered, I hung up. I grumbled to myself that the last thing I need was more time out of the office for some Salem-boondoggle. Adding insult to injury, because the task force wasn’t given a budget, there wasn’t even going to be mileage or lodging reimbursement. On the up side, how often does someone in my position get the chance to get on a first-name basis with the key movers and shakers of state government, and to deal with them all in the same room at the same time? I decided that I would at least to a couple of meetings and decide what to do later.

Six months later, the task force birthed its baby: a report containing 54 recommendations, mostly for Legislative consideration, but some which can be implemented immediately by agencies and counties, suggesting ways to mitigate the impact of the pending loss of these payments.

And the report didn’t whitewash just what these payments mean to Oregon. On its opening page the task force forecasted the fiscal calamity that is about to befall Oregon. The state administration’s political leanings didn’t deter it from squarely blaming Washington for all but killing the vibrant forest industry of this state, and then terminating that support before coming up with a long-range solution to the problem the federal government created. The report noted that in 24 of Oregon’s counties, revenue losses will average 26 percent of their discretionary general funds and 44 percent of their road funds—a loss which will “compromise public health and safety, degrade county roads and exacerbate job losses in almost every region of Oregon outside of the Portland metropolitan area.”

It isn’t a pretty picture.

At best, the task force’s recommendations, even if all of them were adopted would mitigate maybe 20 percent of the loss. At worst, without the restoration of these revenues, some counties in the southwestern part of the state could be facing bankruptcy as early as July 2009. It’s an ugly picture, no matter how you paint it.

At the end of the day, the task force was clear: there are only four ways to completely address the loss of these monies: restoration of payments by the federal government, more taxation, drastic reductions in services or a freeing up of the forests within the state’s boundaries so they can be used responsibly for the benefit of wildlife, watersheds, forest health, AND rural economies and communities.

Barring any one of those outcomes, the task force suggested sensible tweaks such as requiring the state to make up losses to county general funds it creates by exempting certain businesses from income taxes; allowing federal income tax refunds to be attached to pay tax debts owed to state and local government; and allowing state and local road departments to co-locate facilities.
Other proposals were more radical and open to debate: raising the beer and wine tax or raising recording fees. I didn’t support all of the proposals, but it was educational to learn how other regions of the state and their elected officials view the world and how Salem-based officials of state government view the world.

In t he end the task force report is food for thought. You can view it online yourself at http://governor.oregon.gov. Look under the tab “Task force on federal forest payments.” Comments are being accepted through mid-August.

I’m glad I accepted the post. I learned a lot about my State and the unique challenges of its regions. I learned about how other counties operate the business side of their houses, and came home with some good ideas. I made interesting contacts which are useful in working with state agencies. I spent too much time away from home and family dealing with this issue, but in the end, the investment was worth the time.

Most of all, I learned to appreciate Crook County and Central Oregon even more than I already did. We have our challenges for sure, but compared to the rest of Oregon, things look pretty good from where we sit.