County procedure ignores special cases, land use expert says

January 21, 2006

Land-use consultant Steven Andersen believes that Hood River County needs more public involvement in the processing of Measure 37 claims.

Andersen, who routinely helps area residents prepare Measure 37 claims, said the County Commission should not just “rubber stamp” staff recommendations. No public comment is taken at commission meetings dealing with Measure 37 claims.

As a result, according to Andersen, there is no opportunity to discuss special circumstances that come to light during the review of claims. He said landowners are then forced to air their arguments in court — if they can afford the legal fees.

“It’s just not an open process. They make a decision and it’s done, regardless of the facts. I think the county knows that many people can’t pay court costs so they are able to have their cake and eat it too in some respects,” said Andersen.

Hood River County Commission Chair Rodger Schock contends the agency’s processing of Measure 37 claims is not the right venue for public testimony. He said the only thing on the table at commission meetings is whether the claim qualifies to have the original zoning restored. The time for public comment, he said, comes when a development application is submitted to county planners based on that restored right.

“We didn’t want to create a process where neighbors could stand up and air their objections to the claim. That just isn’t an appropriate part of the decision-making process at that level,” said Schock.

On Tuesday, Andersen hoped for a change of the county board’s usual methodology. He wanted officials to discuss his objection to the development rights being denied his client, Lila Draper.

Andersen believed the county was poised to violate both the intent and the letter of Measure 37, which passed by a 61 percent margin statewide in 2004.

Dave Meriwether, county administrator, and staff planners had recommended that Draper’s ownership rights on a 21-acre parcel start in 1988.

That recommendation was based on the fact that Lila and her late husband, Frank, turned the deed for that land — acquired in 1971 — over to his mother for five months in April of that year. In September of 1988 Mary Draper signed the property back over to her son and daughter-in-law.

During the brief exchange of ownership, the couple continued to farm the land.

Because of the break in documented ownership, the county granted Draper only one conditionally permitted home site on the 21-acre property. Andersen had argued in his Jan. 9 protest letter that she should have qualified for 10,000 square foot home sites on individual septic systems, as allowed in 1971.

Andersen said Measure 37 defines ownership as the person who holds the deed or has an “interest therein.” He said Frank and Lila Draper could demonstrate physical control of the property. And that, said Andersen, meets the definition of “possessory interest” in Black’s law dictionary.

He said Black’s acknowledges that interest exists in a person “who has a physical relation to the land of a kind which gives a certain degree of physical control.” In addition, he said an interest in property can exist “though it not be accomplished by title; e.g., right of a tenant …”

But Andersen said that he was not given the opportunity to present that information at the Jan. 17 meeting.

“It was sad and frustrating. They really need a process where the neighbors and the applicant could have some input in the way a decision is made,” said Andersen. “Right now, the way things are run, no one can challenge a statement that’s made or an opinion that’s given, even if it’s based on false and erroneous information.”

Measure 37 was approved in November of 2004 by 53 percent of the registered voters in Hood River County. The law allows landowners to seek compensation when regulations devalue property by taking away the use it had at the time of acquisition. In lieu of payment, the agency can remove the “offending” restriction.

Andersen was only slightly mollified on Tuesday by the fact that county officials lifted the agricultural zoning on Draper’s adjacent five-acre tract — where she makes her home — to restore zoning for five residential lots.

Schock said if Draper’s claim for the 21 acres had been given special consideration, the county would have had to revisit other claims with similar issues.

He said Hood River County goes by the literal legal definition of ownership. And that means that a person’s name must be listed on the deed. And any break in the chain of ownership, including formation of a limited liability corporation, nullifies an earlier development right, according to Schock.

“We’re interpreting the law conservatively and recognize that some of these questions will, ultimately, be decided by the courts,” he said.

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