1000 Friends of Oregon: Q & A Section D

Q&A	Speeches/Papers	Landmark	McCall	Research

Questions & Answers About Oregon's Land Use Program
S e c t i o n D: P l a n n i n g a n d P e r m i t t i n g
*A. Questions And Answers About Rural Lands Issues* 1. Farmland Protection 2. Income Test for Farm Dwellings 3. Conserving Forest Land 4. Secondary Lands 5. House Bill 3661 6. Regional Differences	*B. Questions And Answers About Urban Planning Issues* 1. Urban Growth Boundaries 2. Affordable Housing 3. Transportation Planning
*C. Questions And Answers About Issues Common To Rural And Urban Areas* 1. 1000 Friends v. OIA 2. Economic Development 3. The Taxpayer's Stake In Planning 4. Regional Problem Solving	*D. Questions And Answers About Planning And Permitting* 1. DLCD's Budget 2. Permits and Appeals 3. Citizen Participation 4. Takings and Compensation

DLCD's Budget

What is the budget for the Department of Land Conservation and Development (DLCD)?

DLCD's biennial budget for 1993-95 was $11.1 million, of which only $4.8 million comes from the General Fund.

LCDC's 1993-95 biennial budget was $11.1 million, which is:

•$1.78 per Oregonian each year.
•About the same size as the budgets for the Portland Bureau of Planning and the Eugene Planning and Development Department combined, ($4 and $7.6 million).
•About 7% of the Economic Development Department budget of $157.5 million.
•Less than 1% of ODOT's budget of $1.411 billion.

Less than one half of DLCD's budget, $4.8 million, comes from the General Fund; the majority of DLCD's funding comes from the Federal Government and the state lottery. DLCD's General Fund appropriation is slightly more than the money appropriated to repair the Capitol dome and is the same amount as ODOT was authorized to spend for its La Grande equipment shop.

Why does DLCD need such a big staff?

The staffing level for DLCD is very modest, measured against its responsibilities and some local planning departments.

LCDC responsibilities are statewide. Its staffing level, 48 Full Time Equivalents (FTE), is:

•Slightly larger than the staff size for Washington County's Development Review and Planning Services programs (43.5 FTE).
•About one half the size of Eugene's Planning and Development Department (94.55 FTE).
•About three-fourths the size of the staff at the Portland Bureau of Planning (65 FTE), even though Portland contains only 15% of the state's population.

What does DLCD do with its appropriation?

The department is responsible to oversee and assist local government implementation of state land use policy. A large share of LCDC's budget is dedicated to grants to local governments.

Much of the Department's work is assigned to it by the Legislature, including oversight of the 1993 Legislature's massive House Bill 3661. The Department's field staff also spends a significant amount of time assisting local government staff and applicants with questions about state land use requirements.

Of LCDC's 1993-95 biennial budget, 28% is dedicated to grants to local governments. Between 1975 and 1985 about 63% of LCDC's budget ($24 million) was redistributed as grants to local governments.

What good are the land use laws administered by DLCD to the average taxpayer?

The laws DLCD administers can save taxpayers' money.

The land use laws which LCDC administers can save money. Consider these past or prospective costs to state taxpayers which sound planning could have avoided:

•$70 - $90 million for the proposed Bend Bypass, to be paid for with state gas tax income, needed to bypass the traffic created on the prior bypass, (Highway 97) due to poor local planning, which has converted a state transportation facility into a congested access road for strip commercial development.
•The $3 to $4 million in state money for overpass improvements to address the unplanned traffic impacts from Wilsonville's approval of "The Incredible Universe."
•Millions of dollars in state grants to pay for sewers around the state because local governments authorized development using septic tanks that failed.

Does 1000 Friends support DLCD's budget?

Yes, we support the amount but would adjust how it is spent.

1000 Friends of Oregon supports full funding for DLCD's budget, but would change how the money is spent. The 1993-95 budget contained no line-item for enforcement. (Washington County spends 6.4% of its development review and planning services budgets on code enforcement.) Money needs to be spent to provide in-service training for new members of local planning staffs so that they can understand the state laws they are expected to help administer. (Perhaps DLCD staff could spend some time working in local planning offices, to understand how their policies and regulations are applied locally.) Funds and staff should be allocated to preparing maps and tables showing how Oregon is performing in carrying out state policies. Funds for these new activities could be freed up if the Department and LCDC provided clear and prompt answers to policy issues, cut back on poorly defined grant projects and substituted the in-service training program in place of some of the field staff.

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Permits and Appeals

Why does it take so long to process land use permits?

Compared to other places, our permitting process is speedy.

State statutes require cities and counties to make a decision on development permits within 120 days of receiving an application, unless the applicant asks for a delay or the application is not complete.

Oregon's permit processing times compare favorably with those of communities in other states. A 1986 study revealed that zone changes which take 180 days to process in Tacoma or Bellevue take only 50 days in Eugene. Subdivisions are processed administratively in Eugene, whereas Bakersfield and Hayward, California both required two public hearings. (Source: Eugene Planning Department Memorandum, October 20, 1986.) A zone change in California required an Environmental Impact Report, which costs $25,000 and took 6 months to a year for a 25-acre industrial site, in addition to a general plan amendment. (ld.) It takes two to four years in King County, Washington for a subdivision application to result in approved lots ready for building. (Source: Seattle Times, January 2, 1994, sec. G, P. 1.)

What is LUBA?

The Land Use Board of Appeals.

The Land Use Board of Appeals is a panel of three attorneys ("referees") appointed by the Governor and confirmed by the Senate. Attorneys appointed to LUBA have had experience representing local governments, developers and citizen groups. LUBA hears all appeals of land use decisions made by cities, counties and special districts. Review before LUBA is confined to the evidence presented to the local government. The people who participated at the local level are entitled to appeal to LUBA. LUBA's biennial budget for the 1995-97 biennium is $1,057,632.

Why are there so many appeals to LUBA?

There aren't; compared to the courts, there are few LUBA appeals.

Of the many thousands of local land use decisions that could be appealed each year (estimated at 10,000 to 20,000), approximately 240-265 appeals have been filed with LUBA each year from 1990-1996. By contrast, the Oregon Supreme Court had 263 cases filed in 1993, while the Oregon Court of Appeals had 4,410 cases and Oregon's District and Circuit Courts had 573,115 cases filed in 1993. (Source: 1995-96 Oregon Blue Book, page 112.)

Why do LUBA appeals take so long?

They don't; LUBA issues its decisions much faster than the Circuit Courts did before LUBA was created in 1979.

Prior to the creation of LUBA, local land use decisions were reviewed by the Land Conservation and Development Commission or by the Circuit Courts. A 1987 study by LUBA of its own performance showed that cases were typically decided within one hundred days from filing of the petition for review, while the former system of review in Circuit Court took 243 days. Many appeals took longer to decide, including 19% which took more than one year and several which took nearly two years to decide.

Do we need LUBA? Can't we go back to the old system of hearing land use appeals?

Yes, we need LUBA, because it is faster, cheaper and its decisions are more likely to be upheld by the Court of Appeals. Citizens need LUBA to protect their interests from improper government decisions.

The filing fee and deposit for costs at LUBA total $200. More importantly, attorneys fees and time-related costs are controlled by the expedited review schedule, limiting review to the information submitted to the local government (rather than having a new trial) and to the issues raised at the local proceeding. Many citizens have been able to represent themselves effectively before LUBA, without hiring a lawyer.

From 1988 through 1994, only 25.3% of LUBA's opinions were appealed to the Court of Appeals. (Source: Oregon LUBA Reports, Vols. 16-29.) Most of LUBA's decisions are affirmed on appeal. From 1983 to 1987, 70% of LUBA's decisions were affirmed by the Court of Appeals, nearly twice the rate of affirmance (39%) of land use decisions made by Circuit Courts in the years before LUBA was established. (Source: Memorandum from M. Rohse, DLCD Information Officer, to LCDC, May 26, 1988; statistics on appeals to LUBA.) From 1988 - 1994, 147 of 197 decisions made by LUBA and appealed to the Court of Appeals (74.6%) were affirmed, in whole or in part. (Source: Oregon LUBA Reports, above.)

LUBA requires local governments to honor their own land use regulations and state land use law; government accountability and citizen involvement are promoted by LUBA's work.

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Citizen Participation

Isn't it too easy for NIMBY's to block development projects?

No. In fact citizens face many obstacles to participation in permitting matters and appeals.

The 1995 Legislature amended Oregon's laws to make it harder for citizens to participate in local hearings on development applications:

• A 1995 law prohibits planning commissions, elected officials and LUBA from having any say over certain types of residential subdivisions. Ordinary citizens will now have to pay up to $500 for the privilege of a local hearing on one of these proposals; •Local governments may now charge a maximum of $250, up from $100, for a public hearing on certain permitting decisions (e.g., rural lot-of-record dwelling permits) that are made in private by planning department staff;
•Changes in procedure were adopted to favor applicants for permits. Earlier court rulings and statutes were changed to allow applicants to wait until after public hearings to present their evidence. Applicants also have the last chance to submit final arguments on their proposals; opponents have no right to answer these arguments.
•Developers can go to circuit court to require approval of their applications without notifying citizens, who may not have had the opportunity to participate in any local hearings on the matter, and who cannot appeal the court's decision to LUBA. Citizens attempting to participate in the circuit court proceedings have been assessed attorney fees of tens of thousands of dollars.

In addition, citizens face the previously existing obstacles to their participation. These include:

•Applicants can take as much time as needed to marshall the facts and arguments in support of their proposals, while citizens are given very little time to respond to applications, which can be voluminous.
• Developers' attorney and expert witness fees are generally deductible expenses, while opponents' attorney and witness fees are rarely deductible.

Underlying the question is an assumption that applications should always be approved. But citizen participation is an important means by which illegality in local land use decisions can be identified and avoided. This is particularly important in the absence of adequate funding for monitoring and enforcement by LCDC.

Aren't developments being delayed or killed by frivolous appeals?

No. The Legislature has set deadlines for local decisions and there are serious penalties against frivolous appeals.

Local governments must issue their decisions on applications for most development permits within 120 days, including any time spent resolving local appeals. Obviously, an opponent cannot prevent a local government from approving a permit for very long. Fewer than 3% of all local land use decisions are appealed to the state Land Use Board of Appeals (see Questions & Answers About Permits and Appeals). Compared to the former system which sent appeals of local decisions to circuit courts, LUBA makes its decisions significantly faster.

LUBA is required to levy attorneys fees against those who pursue frivolous appeals and did so twice in 1996.

Shouldn't we allow citizen participation in planning, but curtail it in hearings or appeals on individual applications for permits?

No. Citizen participation in permitting is needed to provide essential factual information and to address policy matters left unresolved by regulations.

This question assumes that plans and regulations settled all the policy issues and established clear and objective standards. But many local plans and regulations were written with vague, subjective standards, and left basic policy issues unresolved, because necessary factual information was lacking (e.g., about natural hazards) or local officials chose to avoid tough policy choices. Public hearings and citizen participation are needed to yield the facts, to clarify vague terms and to resolve the policy questions not settled by the plans and regulations.

Citizens are a necessary check on arbitrary or unlawful government action. Elected officials and planning staff are not infallible or beyond political pressure. Citizens' scrutiny exposes potential violations of land use laws. The Legislature has said that enforcement of acknowledged comprehensive plans and land use regulations are of statewide concern. ORS 197.013.

Don't local citizen planning organizations assure citizen involvement?

They can, but many local governments don't have citizen involvement organizations at all.

Statewide Planning Goal 1 is "Citizen Involvement" but a 1996 survey by the Citizen Involvement Advisory Committee found that: [f]or three-fourths of the cities and counties in the state, Goal 1 has become a hollow shell. Its requirements are not being followed. Its objectives are not being met." No state law requires "citizen advisory committees" and most local governments do not "recognize" any citizen groups who want to participate in local land use decision making.

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Takings and Compensation

Why doesn't 1000 Friends support private property rights?

1000 Friends does support property rights and existing U.S. Constitutional limits on the government's power to take property. Zoning regulations help protect property rights.

Property ownership is vital to any free society. The Constitution's prohibition against uncompensated takings of land for government use provides critical protection for property rights, which 1000 Friends strongly supports.

Zoning and other regulations help protect property rights from infringement by other land owners. Zoning protects the value of a city homeowner's land from having a fast food restaurant or auto wrecking yard next door. It protects farm and forest land owners from residential development that increases lawsuits over pesticide spraying or forest fire hazards.

Isn't zoning land for exclusive farm or forest use an unconstitutional taking?

No. A regulation is an unconstitutional taking if it denies a property owner any economically viable (or "substantial beneficial") use of property. The use of land to grow crops, livestock or timber is a beneficial, economic use.

Existing land use regulations protecting farm and forest lands provide for an economic use for farming or timber production. The recent U.S. Supreme Court decision in Dolan v. City of Tigard does not change this well-established principle in any way. In addition, for the last 20 years, Oregon's laws have allowed landowners to build a dwelling on parcels in exclusive farm use (EFU) zones if the land was generally unsuitable for crops or livestock.

Remember: As a result of House Bill 3661, passed during the 1993 session, most owners who acquired EFU land before 1985 (when most land use plans had finally been approved by LCDC) and do not have a home are now allowed to build one under the "lot-of-record" provisions. These provisions apply to the approximately 12 million acres of land in EFU zones which is not classified as high value farmland (about 75% of the total in EFU zones).

Does 1000 Friends support proposed legislation that would compensate property owners for the reduction in land value caused by zoning regulations?

No. The compensation legislation now being discussed would create a new bureaucracy to transfer taxpayer money to a specially favored group of landowners. If the regulations are objectionable or unconstitutional then they should be amended; we shouldn't "compensate" certain people to obey the law. Consider the following:

•Unfairness To Taxpayers

Taxpayer-financed improvements such as highways, roads and sewers greatly increase the value of certain lands. It is no accident that shopping centers are built next to taxpayer-financed freeway interchanges; these improvements created the traffic which made the site desirable for the private investment. But none of the compensation bills propose to compensate the taxpayers for the value their tax dollars created.

•Unfairness To Many Property Owners

New government regulations or interpretations of existing regulations allow development that reduces nearby property values. For example, citizens and real estate experts in the community of Murphy in Josephine County estimated that a new soil remediation facility and asphalt batch plant would reduce nearby property values by $27 million. (Source: Murphy Citizens Action Committee) What about residents in rural areas faced with nearby rezoning for gravel extraction; shouldn't they be compensated for the effect these new regulations have on their property values due to the increased noise, dust, traffic and ugliness caused by the mining operation? And what about downtown business owners who lose business to suburban malls made possible by new highways? Oregonians In Action does not propose compensating these landowners.

•Compensation Legislation Will Generate A New Bureaucracy and Litigation

Even crude compensation schemes will require complex administrative procedures to collect information and evaluate the effects of regulation on land values. Final determinations of what is appropriate for taxpayers to pay to landowners will create a flurry of litigation. When Britain attempted to sort out all the components of a fair compensation scheme forty years ago, it was quickly abandoned as completely unworkable. As a US Supreme Court Justice said: "Government could hardly go on if to some extent values incident to property could not be diminished without paying for every such change in the general law."

If opponents of laws and regulation don't like them because they think they are unfair, then let them change those laws instead of asking taxpayers to pay landowners to obey them.