ANALYSIS: Legislation creates loopholes in state land use

       As with many good ideas Oregon’s oft-praised and emulated land use law is coming up against the the passage of time and changing circumstances, not the least of which are economic in nature.

In 1973 Senate Bill 100 essentially established statewide goals intended to channel growth into higher density urban areas while protecting agricultural land and open space.

Every city and county was required to create a comprehensive plan that would reflect the original 10 goals, later expended to 14.

The Oregon effort became a paradigm for other states such as Washington. It burnished the reputation of then Gov. Tom McCall who had decried the trend of, “....sagebrush subdivisions, coastal condomania and the ravenous rampage of suburbia in the Willamette Valley...”

Since its passage the original law has confronted challenges through various referendums over nearly four decades. It survived ballot measures by comfortable margins in 1976 and 1978, and another in 1982 that attempted to abolish the Land Conservation and Development Commission which administers the law.

It recently faced a more serious, yet temporary, setback. In 2004 Measure 37 won approval as a ballot issue with substantial support not only in largely agricultural areas but also in urban areas such as Portland.

It would have gutted statewide planning by requiring governments to compensate landowners for lost value resulting from regulations imposed on property after it was acquired.

Faced with potentially staggering compensation demands, many counties and cities waived existing land use regulations. The impact gave rise in 2007 to Measure 49 which mitigated the effect of Measure 47 and limited compensation payments. It also provided relief for landowners in the form of allowing homes on some land where building was previously restricted.

At the core of the debate some proponents of greater flexibility in the land use law say it may have been flawed from the start. They believe the 1973 standards were intended more to preserve “high value” agricultural land in the rich Willamette Valley but were not as reasonable when applied to less fertile land east of the Cascades.  By this reasoning, the “one-size-fits-all” approach was not workable in the longer term.

The more recent attempts to chip away at or  tweak provisions of  the 1973 law have emerged not through ballot initiatives but in the form of targeted legislation that has gained surprising traction in Salem.

Most  of the bills have not made their way from committees and through both legislative chambers to be signed into law. But a few have succeeded, and others show promise as the result of continued support from legislators willing to reintroduce them in succeeding sessions. If nothing else they’ve spurred new dialogue about statewide planning in relation to local conditions.

The efforts have gained momentum as a result of brutal economic conditions straining farmers and ranchers, many who view greater flexibility in how they can use their agricultural land as a means of financial survival.

To one extent the  issue has also widened the rift between urban and rural areas, although in some cases conservation groups and landowners have formed alliances that would allow limited development through land swaps and tradeoffs to achieve a larger purpose in preserving other land.

Altogether, the new wave of legislation is generally aimed at loosening restrictions to prohibit expanded activity and development on agricultural and forest land.

But not all the bills would relax state control, among them HB 3298 which became law  in 2009. It circumvented existing state law to effectively end plans for one resort and force the downsizing of another by declaring the Metolius River basin an “area of critical state concern,” the first use of this designation. The bill overturned decisions by the Jefferson County Commission which had complied with state law requiring mapping of resorts in the county planning process.

Then Gov. Ted Kulongski made a trip to Camp Sherman to highlight his signing of the bill. The legislative effort was lead in part by state Sen. Betsy Johnson, D-Scappoose whose family has long had property at the headwaters of the Metolius.

Among proposed bills in the 2011 legislative session that would affect land use are:

• HB 3347 to suspend requirements for nightly rental units in a new project in the Sunriver area in exchange for the developers offering to make payments that could be used for upgrading waste treatment in south Deschutes County.
• HB 3465, approved by a wide 54-6 house majority, that would greatly expand existing standards established by 1997 legislation intended to allow “guest ranches” on lands zoned primarily for agriculture. The legislation would specifically allow the Silvies Valley Guest Ranch near Burns in Grant County to build 575 units restricted to nightly lodging along with related services such as a spa and restaurant.
• HB 3615, setting up a pilot program for Jackson, Josephine and Douglas counties that would permit such uses as bed and breakfast and small cafes catering to “agricultural tourism.”  Deschutes County commisisoners have asked that the county also be included in the program and others are likely to follow.
• Several other 2011 Senate and House bills would redefine and expand permitted uses for events such as weddings on agricultural land. Among them are SB 960 which would allow counties to approve “limited use” permits to hold events on agricultural land. Thus far, the state law provides little guidance to the Land Conservation and Development Commisison.
• HB 2228, the “Skyline Forest” legislation signed by Gov. Kulongski in June of 2009, provides several development scenarios allowing from 137 up to 282 homes on 3,000 acres of 33,000 acres of timberland between Bend and Sisters.  In exchange Cascade Timberlands LLC agreed to sell about 30,000 acres there and another 34,700 acres in southern Deschutes and northern Klamath counties to a land trust or government agency.

 Among the 2011 bills, the language in HB 3465 pertaining to guest ranches provides a pointed example of the challenge to the state land use law.

            A staff summary for a memeber of the House Committee on Agriculture and Natural Resources notes that the LCDC is directed to adopt new rules to implement the pilot program.

            “Rules do not need to be in impliance with statewide land use planning goals,” the staff summary concludes.

            The reaction to HB 3465 from conservation and environmental advocates has been expectedly unfavorable.

            As quoted in a report by an Oregon daily newspaper, an attorney who has been involved key land use battles questioned, “the public benefit for such an extreme measure...”

            Perhaps ironically, though, a Democratic state legislator who championed legislation that impeded resorts in the Metolius River Basin is leading the way for the expanded guest ranch law. He says it could stimulate rural economies without dodging the state’s orginal land use goals designed to limit those “sagebrush subdivisions.”