Oregonians In Action
Legal Center
P.O. Box 230637 Tigard OR 97281 (503) 620-0258

OIA Legal Center Scores Two Victories

By Dave Hunnicutt,
Executive Director
Oregonians In Action
March/April 2003

The Oregonians In Action Legal Center received good news recently, as hearings officers in Deschutes and Clackamas Counties ruled in favor of Legal Center clients.  Each ruling comes after years of litigation, and illustrates how Oregon’s land use planning system makes it extremely costly and difficult for landowners to secure the right to use their property.

JIM WATTS:

In Deschutes County, the County’s Hearings Officer approved three non-farm dwelling applications for Jim Watts, a longtime Legal Center supporter and client. 

Watts story is unfortunate but typical.  In 1985, Watts purchased three contiguous 13 acre parcels near Sisters.  Despite the fact that there were less than 20 merchantable trees on the entire 40 acres, the parcels were zoned for forest use. 

But the forest zoning was acceptable to Watts, because the Deschutes County regulations in place when Watts purchased the parcels allowed the placement of one single family dwelling on each parcel.  Watts intended to build on one parcel and sell the other two to help pay for the home he wanted to build.  And of course, the purchase price Watts paid for the parcels reflected that fact.

Unfortunately for Watts, however, the laws allowing the siting of dwellings in the forest zone changed, and Watts parcels no longer qualified for the siting of dwellings.  This was especially disturbing for Watts, as both public and private foresters had indicated that Watts parcels could never be used for commercial forestry activities. 

In fact, none of the soils on Watts parcels carried a woodland suitability rating, which meant that they were simply unable to produce merchantable trees.

As a result of a change in the rules, the value of Watts’ parcels went from approximately $500,000 to zero.

Well it doesn’t take a rocket scientist to figure out that it’s dumb to call 40 acres of sagebrush and rocks a forest area when there are just a few merchantable trees on the property and when every scientist who has been to the property tells you that the property won’t ever become a forest stand.  And this is where Jim Watts’ troubles began.

Watts first attempted to get his land rezoned in 1998.  The Deschutes County Hearings Officer acknowledged that Watts parcels’ were not capable of being used for forest purposes, but refused to change the zoning of the property, holding that Watts must convince the Deschutes County Commissioners to amend their zoning ordinance and comprehensive plan in order for the parcels to be rezoned.

That’s when the Legal Center stepped in.  In 1999, the Legal Center agreed to represent Watts and requested that the Deschutes County Commissioners review their zoning ordinance and comprehensive plan to ensure that lands zoned for forest use were truly capable of being used for commercial forestry.

Fortunately, the Deschutes County Commissioners agreed to review their policies.  In  2000, after working in conjunction with the Deschutes County Planning Commission and receiving public testimony from interested parties, including Watts and the Legal Center, the Deschutes County Commission agreed to amend the County’s Comprehensive Plan to allow a property owner to challenge the forest zoning on his/her property in those cases where forest zoning made no sense.

Having moved one step closer to getting relief for the loss of all his property value, Watts immediately submitted an application to rezone his three parcels from forest zoning to exclusive farm use zoning.  Despite the fact that Watts parcels were as poor for farming uses as they were for growing trees, the exclusive farm use zoning would allow Watts to submit applications for non-farm dwellings on each of his parcels.

As is usually the case in a land use application, Watts’ applications were met with stiff resistance from environmentalists and an adjacent landowner, who argued that Watts should not have his land rezoned because he might build one home on each parcel, which would disturb the deer in the area.  This despite the fact that the landowner making this argument already had a home on the adjacent parcel.

The Deschutes County Hearings Officer did not find the opposition arguments persuasive, however.  In 2001, after reviewing the memoranda and evidence submitted by the Legal Center on Watts’ behalf, the Hearings Officer approved Watts’ parcels for rezoning.

Unfortunately, that was not the end of Watts’ saga.  Having successfully convinced the Deschutes County Commissioners to amend their comprehensive plan in 2000, and having successfully convinced the Deschutes County Hearings Officer to rezone his parcels in 2001, Watts was then required to submit applications to get non-farm dwellings approved for each of his three parcels.

One would think that this last step would be relatively easy.  After all, Watts had already proven that his parcels could not and would not ever be used for commercial forestry.  And the soils on each parcel were so poor that they carried no rating for any kind of crop production or cattle grazing.

But the same people who opposed Watts’ zone change applications appeared in opposition to Watts non-farm dwelling applications.  As in their earlier opposition, the neighboring landowners, who live in a house on the adjacent parcel, argued that Watts’ should not be able to build on his parcels, as a house on each parcel would have a devastating impact on the local deer.

And as for farm use, the neighboring landowners argued that farm uses could be made on other parcels in the area, and that homes on each of the Watts’ parcels would interfere with those farm uses.  As proof, the neighbors claimed that a nearby landowner had once grown marijuana on his parcel, which demonstrated that there was land that could be used for agricultural production.

Undaunted by such “compelling” evidence, the Deschutes County Hearings Officer again rejected the opposition arguments, and based on the evidence and argument submitted by the Legal Center on Watts’ behalf, approved each application for a non-farm dwelling.  After nearly six years and four separate proceedings, Watts is finally getting his rights restored.

There are two lessons to be learned from this case. “The first is that in some circumstances, persistence can pay off.  The second, and most obvious lesson, is that Oregon’s land use planning system creates almost insurmountable barriers for most landowners.”

Without the help of the Legal Center, Jim Watts would have been unable to get back the rights that were taken from him in the early 1990's.  No landowner should have to go through what Jim went through just to get his rights back.”

PAT LAWRENCE:

The saga of Pat Lawrence and her go-cart race track is nearly as tortured as that of Jim Watts.

Lawrence owns approximately eight acres in the Damascus area in rural Clackamas County.  For over 40 years, a go-cart track has been operated on the property.

But as the years have passed, the area surrounding the go-cart track has become more populated, in some instances by people who do not appreciate the noise and activities associated with the operation of a go-cart track. 

And of course, the zoning in the area has changed substantially over the years, such that go-cart tracks are no longer allowed on Lawrence’s property.

Lawrence’s legal troubles came to a head in 1997, when the Clackamas County Code Compliance Specialist sent several letters to Lawrence demanding that she discontinue the use of the go-cart track.  The County threatened Lawrence with monetary and other penalties if she continued to use her track.  These threats were followed up by visits from the Clackamas County Sheriff’s Office, who “discouraged” Lawrence from continuation of use of the go-cart track.

Lawrence then hired a lawyer, who began negotiations with the County regarding continued use of the go-cart track.  Lawrence’s lawyer argued that the track was a non-conforming use, meaning that the use was lawful at the time it was created but would no longer be allowed under current zoning law.

On March 20, 1998, Lawrence filed an application to establish that her go-cart track was a non-conforming use that should be allowed to continue.  On July 20, 1998, the County rejected Lawrence’s application.  Lawrence then appealed the County’s decision to the Land Use Board of Appeals (LUBA), which agreed with the County. 

Undaunted, Lawrence then appealed LUBA’s decision to the Oregon Court of Appeals, which agreed with Lawrence and sent the case back to LUBA, which in turn sent the case back to Clackamas County.

In the meantime, Oregonians In Action was able to pass legislation in the 1999 legislative session which made it easier for landowners in Lawrence’s shoes to prove that their non-conforming uses should be allowed to continue.  When Lawrence’s case was sent back to the County by the Oregon Court of Appeals, Lawrence argued that the new law should apply to Lawrence’s case.

On August 7, 2000, the Clackamas County Hearings Officer rejected Lawrence’s arguments.  Rather than challenging the Hearings Officer’s decision, Lawrence simply submitted a new application, and argued that the new law applied.

The Hearings Officer rejected Lawrence’s arguments regarding her new application, and again found that the go-cart track was no longer legal.  Lawrence appealed that decision to LUBA, which reversed the Hearings Officer.  A group of neighbors opposed to the go-cart track appealed LUBA’s decision to the Oregon Court of Appeals, which agreed with Lawrence and LUBA, and then to the Oregon Supreme Court, which denied review.

But that was not the end of the case.  In fact, the neighboring landowners continued to argue that the go-cart track should be disallowed.  This time, their theory was that Lawrence discontinued use of the go-cart track for at least twelve months between 1997-98, and therefore the non-conforming use of the track ceased.

Of course, if the neighbors arguments were successful, landowners in Lawrence’s position would be put in an impossible bind.  As discussed above, Lawrence was ordered by both the Clackamas County Code Compliance Specialist and the Clackamas County Sheriff’s Office to stop using the go-cart track.  A reasonable person would comply with an order from the County.  But the neighbors position, if accepted, would force a landowner to ignore the county’s orders, for fear that stopping the use would mean it could not be restarted.

This is when the OIA Legal Center stepped in.  Realizing that landowners in Lawrence’s position would be put in an impossible situation if the neighbors arguments were accepted, the Legal Center agreed to represent Lawrence. 

Fortunately, the neighbors position was too much for the county Hearings Officer, who after ruling against Lawrence in each of the past circumstances, finally agreed with Lawrence that the use of the go-cart track was not discontinued during 1997-98.