Silva Remand:
Our first is a travesty, certainly in its effect on Land Use issues but more as an example of how, even though the law states how the land is zoned and even with a judicial body emphasizing the law and its interpretations, people get trapped when their local officials won't do their job properly. The original proposal was for a zone change from EFU (Exclusive Farm Use) to RR-5 (Rural Residential-5 acre minimum lot size) for a 14.36-acre parcel. The application was approved at the county commissioners level and FOLC successfully appealed to LUBA (Land Use Board of Appeal) which remanded the case back to the county for further consideration. In a typical remanded case LUBA rules that a county decision incorrectly applied applicable statutes, goals and rules. In this instance, LUBA found that "the county erred in failing to apply" them at all. The remand hearing was held before our current Board of Commissioners whereas the first hearing was before the previous board. Mr Silva's "case" was essentially to complain about LUBA's ruling and to find fault with the legislature's definition of "farm use." The application was again approved with no obvious consideration of pertinent law. The Planning Department normally writes the findings, or official ruling, of the Board, which the commissioners sign. The Planning Department apparently also felt Mr. Silva had no case as it asked him to write the findings for himself. We are especially interested to see the folly to which the Commissioners are willing to affix their signatures. A second successful appeal of this case is crucial to our enforcement action (EA). The decision clearly suggests that Linn County is incapable of seating a Board of Commissioners willing or able to apply land use law in their land use deliberations, even in the face of LUBA's specific admonitions to do so, as in its ruling on the first appeal of this case. Another successful appeal would argue in favor of our EA request that a hearings officer, preferably a land use attorney, be installed to decide land use cases in our county.
Now the human side of this. The applicant has spent his application fee twice. He however can hope to prevail and recover his expenses by increasing his assets value...two home sites for one price...and we all know that is a big increase in value. But consider the plight of the neighbors. They bought and built homes on their land, expecting the land to remained zoned as it was, spent their own money on filing fees and legal fees to appeal this case to LUBA. They prevailed, but they are just plain "out" the money they spent. They have no recourse to recover their money, except that their land values will not go down by letting Mr. Silva's development occur. With this second decision from the commissioners, the neighbors get to come up with the money all over again for a second appeal to LUBA. If they can come up with the money, they are assured of a favorable decision, as no arguments were presented at the time of second hearing to justify the decision. But they have to go through the expense of legal and filing fees and they are looking at a cost of near $5000. Friends of Linn County will be helping them with this amount though this will have substantial impact on our treasury.
When we do prevail, there is nothing to prevent Mr. Silva from reapplying, nothing which prevents our commissioners from re-approving this. This cycle can go on forever till one side gives up. This is not fair, when the law is there for all of us. This arbitrary interpretation by our commissioners is outrageous. That is why we are pursuing our enforcement order application. The hope is to get someone who will enforce the law, obey the guidelines, and do it correctly the first time, instead of making each opposed case a court case. This would take the duty of land use decisions out of the hands of our commissioners. We will keep you posted.

Schwindt- Developement in Rural Area
This is a combined application involving three owners and four parcels in the hills east of Lebanon. The proposal is a zoning change from F/F (Farm/Forest) to RR-5 on 39+ acres that adjoin the Hidden Valley Estates subdivision. This subdivision is one of the county's 104 'exceptions areas' that have allowed rural communities from 10 to over 100 residences. Two residences already exist on the subject parcels. Five additional residences would be possible. The soil is rated as capable of commercial timber production according to the Linn County Soil Survey. The Planning Commission recommended that the Board of Commissioners deny the proposal. The 3-2 vote was based on opinions that the land really was resource land to be preserved and also that Lebanon needed more economic development not more residential development. The applicants are getting real value for their application fee. They have presented the Board of Commissioners with two approaches to the goal exceptions that must be satisfied for approval. Normally one of the possible three approaches is presented per application. They have essentially said: "If the first argument doesn't work see if the second one will." FOLC has pointed out crucial flaws in both sets of arguments. Neighbors testified that they have had domestic wells dry up and advised against the proposed shared well for the eventual new residences. The hearing has been held open for further testimony. Our opposition is based on the notion that any justifiable need for more residences is best met by use of ample capacity within Urban Growth Boundaries. In addition, there are about 160 vacant parcels within the above mentioned 'exception areas' that are already approved for development. Our estimate is that this represents a 14 year supply of buildable rural parcels. We fear that approval of this application will set a precedent to accrete new development onto existing rural residential areas in the absence of any prior, logical, comprehensive planning. Population increases in these rural centers produce undue strains on the service infrastructure. Ambulance, fire prevention and school bussing capacities must increase accordingly. Traffic congestion on smaller, rural roads increases as does road maintenance costs. The county Road Department's budget is currently more than 40% of the total county budget. Continued development of the sort proposed by this case can only exacerbate that situation.

Ruminations on Millersburg
Over the last few weeks the city councils of Millersburg and Albany have been holding joint meetings, exploring the possibility of cooperatively constructing larger fresh water treatment systems. The alternative systems being considered would be able to meet projected demand for at least the next fifty years. These negotiations are going on because FOLC appealed the Linn County Planning Commission's approval of Millersburg's initial proposal, forcing a hearing before the Board of Commissioners. That proposal included the construction of a treatment and storage facility on rural land on Scravel Hill. Albany later appealed the Linn County Board of Commissioner's approval to the Land Use Board of Appeals, where FOLC's original arguments prevailed. The Board of Commissioners again approved the Millersburg proposal on remand. However, the findings and decision are on hold pending the outcome of the current negotiations. While observing these joint meetings, it has become clear that Millersburg leaders, and a number of the Albany city councilors, are eager to provide for and accommodate growth. At least a couple of the Albany councilors are a bit more skeptical, seeing no pressing need to commit the very large funds that will be required to build whatever system or systems that might be agreed upon. There are those of us who feel that growth is not desirable. We have seen the results of growth in other parts of the country and the world, and those results are neither pretty nor sustainable. Growth leads inevitably to expanding development, to congestion, to loss of open and wild space, to environmental degradation. However, as an organization, FOLC has chosen not to oppose growth. Rather, we accept growth projections as facts to be accommodated, and seek to plan for and direct that growth in a manner which results in the best possible communities and which preserves the maximum amount of resource and wild land. It is apparent that neither Albany nor Millersburg shares FOLC's concern about using rural land to support urban development, just because it's cheaper and more convenient than building their facilities within their UGBs. Our interests are unlikely to be recognized or protected in these ongoing negotiations. If we're going to save the rural land on Scravel Hill from urban development, we'll likely be on our own.

Urban Growth Boundaries- in Linn County They Don't Mean Much.
The City of Harrisburg applied for an expansion of its Urban Growth Boundary (UGB) to encompass land of a residential developer. In return, the developer will donate 2.5 acres to the city for a park, which, of course, the city will develop, providing a selling point for the additional residences that the developer will now be able to build. The City will also aid the developer by assuming the maintenance of the development's flood abatement facility. FOLC maintains that Harrisburg inadequately addressed the issues necessary to achieve the "reasons" exception it sought - mainly, no consideration was given to land already within the UGB that could have been used for a park. The Board of Commissioners approved the application essentially because they felt they could not pass up a "something for nothing" deal. It is hardly such a deal. Even if it were, nothing in the law compels approval based on such a "doctrine." The findings have not been completed. We are expecting to fight this one also, as the UGB is something that should not be so capriciously changed.

Golf Course Looking for Water
In June of 2000, the Department of Water Resources was asked to approve the use of water from Hamilton Creek to irrigate the Mallard Creek Golf Course. Mallard Creek had purchased water rights from upstream farmland, and sought approval to transfer those water rights from farm use to golf course use. When the golf course was first approved by the Linn County Board of Commissioners, the developers promised that there was plenty of water to be found from deep wells. Those opposed to the golf course were skeptical about the presence of that water, and very concerned about the effects of withdrawals of the huge quantities of water needed to keep a golf course green on the wells of surrounding property owners. Instead of drilling to the 1000-foot depth specified by their hydro-geologist, wells were drilled to a depth of only 350 feet. Those wells have proven to be wholly inadequate, leading to the attempt to secure surface water rights from Hamilton Creek. When notice of the proposed transfer of water rights was published, FOLC filed a protest with DWR. State law requires that every action of state agencies affecting land use be compatible with the local jurisdiction's comprehensive plan. FOLC's position is that the transfer of water rights from farm use to irrigation of a golf course fails to protect the resource orientation of the resource zones, as required by the Linn County Comprehensive Plan. FOLC also believes that no determination of compatibility has been made, as is required. DWR's position is that, since the land use as a golf course has been approved and found to comply with the Linn County Comprehensive Plan, the use of surface water to irrigate the golf course must also comply with the Plan. DWR thus is trying to avoid the statutory requirement that all of its actions be compatible with local comprehensive plans. DWR has been supporting the Mallard Creek Golf Course, and assuming most of the legal costs. With the assistance of Mike Collmeyer of 1000 Friends of Oregon, FOLC filed a brief laying out its case. An initial decision by the hearings officer on the legal issues raised is expected in late September. Any appeal of that decision would be to the Water Resources Commission, and from there to the Court of Appeals.
This is an extremely important issue, not only for the future of Hamilton Creek, but for the way state agencies do their jobs throughout Oregon. Let's hope for the best.

In Friends of Linn County v. Linn County, the Land Use Board of Appeals ruled the County had erred in allowing a specific lot-of-record dwelling on high value farmland. LUBA sustained three of the four assignments of error, argued by Salem attorney Anna Braun. In such a case, the county has to show farming the parcel is "impracticable", that a nonfarm dwelling will not significantly increase the costs of or force a change in farm practices on surrounding land, and that approval of a nonfarm dwelling will not "materially alter the stability of the land use pattern in the area." LUBA ruled the County failed on all three counts.

The decision was the third consecutive LUBA decision in favor of Friends of Linn County and against Linn County in attempts to allow non-farm residential development on farmland.

The three decisions:
http://luba.state.or.us/pdf/2000/mar00/99191.pdf
http://luba.state.or.us/pdf/dec99/98227.pdf
http://luba.state.or.us/pdf/dec99/98226.pdf

Since that time, Friends of Linn County has won five additional cases against the County at LUBA, bringing our undefeated streak to eight.