Jefferson
CountyÕs commissioners decided to summon the lawyers this week in their battle
with state land use officials. The state responded in condescending fashion.
Said Richard Whitman, the director of the Department of Land Conservation and
Development:
"We tried
very hard to work with Jefferson County with this, but for whatever reason,
Jefferson County has simply continued to resist the whole notion of an area of
critical statewide concern, and I think thatÕs unfortunate. É If the county had
been willing to engage in the process, we might have been able to include in
the recommendation to the Legislature provisions that could have benefited the
county."
The
notion that Jefferson County officials are "for whatever reason" spurning the
stateÕs efforts to help them is ludicrous. So, too, is the suggestion that
theyÕre somehow averse to engaging in the land use process.
Whitman
is referring specifically to the obscure piece of land use law allowing the
creation of an Area of Critical State Concern. Should the Legislature apply
this designation to the area around the Metolius
River, as the stateÕs land use commission recently recommended, it would preclude the development of two controversial
destination resorts.
That
would please many of those who already own property on or near the Metolius River, including powerful state Sen. Betsy
Johnson, D-Scappoose, who maintains expansive holdings and a vacation cabin
near the riverÕs headwaters. In 2007, Johnson co-sponsored legislation that
would have killed the resorts.
The
designation, however, would culminate in a thinly disguised attack on local
land use authority, which is why Jefferson County leaders are fuming. The
process Whitman criticizes county commissioners for resisting is nothing more
than a hasty repudiation of the real and extensive land use process by which
they made property in the Metolius basin eligible for
destination resorts. As directed by state law, the county spent years revising
its comprehensive plan and related ordinances before approving the changes in
late 2006.
Last
December, even while acknowledging Jefferson CountyÕs "long and careful
process," Gov. Ted Kulongoski asked the DLCD and the
Land Conservation and Development Commission to, in effect, undo the countyÕs
work within a mere three months. Why in the world would Jefferson CountyÕs
commissioners be mad?
For a
better sense of how particular and agonizing this "long and careful process"
was, and why the stateÕs actions now are so maddening, it helps to look at the
grounds on which the countyÕs work was appealed to OregonÕs Land Use Board of
Appeals. One of the appellants was none other than Betsy Johnson. Among the
good senatorÕs claims:
¥ The county failed to provide two separate readings of the
ordinances at least 13 days apart, as required by law. The second reading, if
one occurred, happened only six days after the first.
¥ By
repealing the old comprehensive plan and zoning ordinance on Dec. 27, 2006, and
not making the amended versions effective until Jan. 1, 2007, the county
"impermissibly created a four-day gap in which the county had no plan or zoning
ordinance."
¥ The county failed to provide the 45-day notice to the DLCD for
the destination resort ordinances, as required by law. To be sure, Johnson
"concedes that the county provided the required 45-day notice," but argues that
"it did not specifically include notice of the countyÕs later bifurcation of
the destination resort amendments from the balance of the amendments" to the
comprehensive plan and zoning ordinance.
Talk
about splitting hairs.
LUBA
rejected these claims, pointing out that the last, even if true, would have
amounted to a harmless procedural error.
As you
can see, the "long and careful process" Jefferson County undertook requires
meticulous attention to a mountain of bureaucratic details that opportunistic
opponents inevitably sift for the slightest irregularities. It is the process
the state itself created and one Jefferson County appears to have negotiated
with few errors. LUBAÕs opinion has been appealed to
the state courts.
Whitman assigns to "whatever reason" the countyÕs resistance to the stateÕs new "process." WeÕll go way out on a limb and guess that the reason goes something like this: Having conducted an exhaustive process that has largely withstood microscopic examination by bureaucratic nit-pickers, county officials resent the stateÕs cynical and slapdash attempt to invalidate their work. How dare they?