Under mounting legal and public pressure, Jackson County commissioners backed away Wednesday from acting on a controversial emergency ordinance that attempts to resolve the aftermath of Measure 49.

About 80 angry landowners attended the commissioners' meeting at the Ashland High School theater to protest the ordinance, which they say is another effort to strip away the development rights granted under Measure 37. They also protested the county commissioners' decision to not allow public discussion on the new ordinance at Wednesday's meeting.

"They keep passing the buck," said 72-year-old Kenneth Bigham of Sams Valley outside the meeting. "They're just waiting for the older people to die. It's not right."

Bigham, who said both his wives, his father and grandfather have died on his 112 acres, is one of 571 property owners who received a waiver of land-use regulations from the county that many worry may no longer be valid.

A draft copy of the ordinance spells out the lengthy steps property owners would need to take to prove they are vested, which would give them development rights under Measure 49. The county has decided to remove a $1,069 application fee proposed in the draft ordinance.

Property owners who filed Measure 37 claims with both the county and the state stand a better chance of getting some kind of relief under the new measure, but those who filed only a county claim may have little or no recourse.

Property owners have been receiving letters from the state giving them 90 days to decide what steps to take under Measure 49, which is the impetus for the county's emergency ordinance.

Bigham said he was told by Jackson County officials that he didn't need to file a separate claim with the state.

Commissioners had scheduled a first reading of an emergency ordinance Wednesday to deal with the thorny issue of vested rights under Measure 49, and had decided not to allow public testimony. Measure 49, passed in November 2007, has been called the "fix" for Measure 37, which had granted property owners the right to waive land-use restrictions.

Sitting in front of a set from a production of "Beauty and the Beast," the commissioners decided to hold both the first and second reading of the ordinance at 9:30 a.m., March 12, at the Jackson County Courthouse and to give the public a chance to speak on this issue at that meeting.

Under the proposed ordinance, the amount of money spent to develop the claim would be weighed against the total cost of the project in one of many steps needed to prove a claimant has vested rights.

Outside the theater, protesters carried signs reading "Stop government land grab," "Please help us" and "Follow the law."

Protest organizers had hoped more than 100 property owners would show up for the demonstration, but a bus that brought protesters from Medford carried only about a dozen people.

Outside the meeting, Gold Hill resident Bill Montague, 79, said, "It's hard to believe we live in a country like this where they take your rights away."

A group of property owners calling themselves Citizens for Constitutional Fairness, along with other Measure 37 claimants, had filed a request for an injunction in the U.S. District Court Tuesday to block the first reading of the ordinance. The injunction request also contends that the county and the property owners entered into a contract when the claims were approved, and those contracts can't be overturned by any subsequent state law.

Even though commissioners asked for people to speak on non-agenda items at the beginning of the meeting, audience members nevertheless brought up the Measure 49 ordinance.

At one point Ashland attorney Mike Jewett, who represents the county, admonished commissioners not to engage in any discussions with speakers.

"One of the down sides of being sued is you've got to keep your mouth shut," Jewett said.

At least three lawsuits seeking damages of more than $20 million have been filed by Measure 37 claimants against the county so far.

"Grumpy" Bud Combe of Grants Pass urged commissioners to support the property owners. "I hope you make some right decisions," he said. "I know it's tough."

Medford resident Tom Johnston supported Measure 49 and blasted commissioners for being overzealous in their support of Measure 37.

"In their giddy rush to get Measure 37 claims approved, they neglected to say you've got to go to the state," he said, pointing at the commissioners. "If you want to sue someone, sue these gentlemen."

Joy Olson, whose mother has a county waiver for 70 acres near Ashland, said it's difficult being a property owner in Oregon. "The fair market system for land in Oregon doesn't seem to be working," she said.

The county commissioners, who have generally been supportive of Measure 37 claims, expressed frustration about their options after Measure 37 and the rules that have been passed on to them from the Oregon Department of Land Conservation and Development.

"We were hoping this would be settled long ago — this vesting issue," said Commissioner Dave Gilmour. "The state really let us down."

After commissioners listened to audience members, students from Ashland High School performed a scene from "Altar Boys" and a song from "Beauty and the Beast."

Commissioner C.W. Smith, who wants to hold more board meetings in outlying communities, said, "This is one of the most entertaining board meetings I've attended."

Reach reporter Damian Mann at 776-4476 or dmann@mailtribune.com.

 

Friday, December 7, 2007

"It is not easy owning land in Oregon" By Damian Mann Mail Tribune December 07, 2007

People might think Velda Dickey is lucky owning 70 acres next to a commercial area off Interstate 5 in Ashland.

What most people don't realize, she said, is that she can do very little with the land, which is primarily zoned exclusive farm use.

"It's not easy owning property," said the Medford resident, whose family helped pioneer the valley and bought the property in 1961.

Dickey and her family had hoped a Measure 37 claim would finally give them some flexibility, but their hopes dimmed with passage of Measure 49, which becomes law today.

They fear the measure will be used as a vehicle for the state to take away what they see as their rights.

Joy Olson, Dickey's daughter, said her father, if he were still alive, "would be flabbergasted to know what my mom has gone through to save this land."

"It's like you've chosen Miss America and found out she's a cross-dresser," said Dickey's son-in-law and Olson's husband, David Smith.

Smith has argued before Jackson County commissioners that Measure 37 waivers are constitutionally protected and cannot be overturned or changed by Measure 49.

The Dickey property is located just behind the La Quinta Inn on Valley View Road and is bordered by Interstate 5 and Eagle Mill Road.

Under Measure 37, approved by voters in 2004, a property owner could either get a waiver for a restrictive land-use law or be compensated for the lost value.

When Jackson County first began approving Measure 37 claims, it didn't require that a property owner also file a claim with the state. Circuit Court Judge Phil Arnold ruled in January the county erred in not requiring property owners to file a state claim. The county approved waivers of land-use laws on 571 claims.

Measure 49, billed as the "fix" for Measure 37, places sharp limits on development, allowing up to three-parcel lot splits in a fast-track process.

Jackson County commissioners treated Measure 37 applications like tort claims, and in Smith's opinion, the waiver was just another way to compensate the landowner and should be considered as no different than rendering a judgment in a lawsuit.

He said that instead of compensation, the county essentially paid the landowner by removing the offending land-use restriction and restoring market value.

Citing Article 1, Section 21, of the Oregon Constitution, Smith said that vested rights conferred by legal judgments cannot be overturned by a legislative act.

The Oregon Department of Land Conservation and Development has issued guidelines that suggest the rights of property owners who have received a waiver from the county but not the state are greatly diminished. The Dickey property only has a county waiver.

"The DLCD has it wrong," stated Smith in a letter submitted to county commissioners recently. "It is suggesting a dangerous, unlawful and wrongful course of action."

Stephanie Soden, spokesperson for the Oregon Department of Justice, said, "We would disagree that it is a tort claim."

However, Soden said these and other matters could be challenged in the courts.

In January, the state lost in the Oregon Court of Appeals a case known as Corey versus the DLCD that found property owners with waivers are entitled to certain benefits under the law. Soden said the state has appealed that ruling.

Smith argued that the rights of property owners should not be considered on a case-by-case basis to determine if a claim has been vested.

General guidelines from the DLCD for determining whether a property owner is vested include the requirement that a considerable amount of money must have been spent toward the development cost in addition to having the necessary state and local waivers.

Soden said the state has disagreed with Smith's analysis. "It really is a case-by-case basis," she said.

About 300 court cases from Measure 37 are currently working their way through the court system. "I don't know that anybody thought we would be debating this many complex issues," she said.

County Commissioner C.W. Smith, who isn't related to David Smith, said the legal argument posed by David Smith is interesting, and the county is still hoping for more clarification from the state before adopting a position on Measure 49.

"It's a legal puzzle that we're trying to figure out, and we're trying to figure out how to put the pieces together," the commissioner said.

David Smith said that what he's seen so far leaves him unimpressed with the new legislation.

"Measure 49 is the slickest piece of legislative chicanery to come down the pipe," he said.

Reach reporter Damian Mann at 776-4476 or dmann@mailtribune.com.

People might think Velda Dickey is lucky owning 70 acres next to a commercial area off Interstate 5 in Ashland.

What most people don't realize, she said, is that she can do very little with the land, which is primarily zoned exclusive farm use.

"It's not easy owning property," said the Medford resident, whose family helped pioneer the valley and bought the property in 1961.

Dickey and her family had hoped a Measure 37 claim would finally give them some flexibility, but their hopes dimmed with passage of Measure 49, which becomes law today.

They fear the measure will be used as a vehicle for the state to take away what they see as their rights.

Joy Olson, Dickey's daughter, said her father, if he were still alive, "would be flabbergasted to know what my mom has gone through to save this land."

"It's like you've chosen Miss America and found out she's a cross-dresser," said Dickey's son-in-law and Olson's husband, David Smith.

Smith has argued before Jackson County commissioners that Measure 37 waivers are constitutionally protected and cannot be overturned or changed by Measure 49.

The Dickey property is located just behind the La Quinta Inn on Valley View Road and is bordered by Interstate 5 and Eagle Mill Road.

Under Measure 37, approved by voters in 2004, a property owner could either get a waiver for a restrictive land-use law or be compensated for the lost value.

When Jackson County first began approving Measure 37 claims, it didn't require that a property owner also file a claim with the state. Circuit Court Judge Phil Arnold ruled in January the county erred in not requiring property owners to file a state claim. The county approved waivers of land-use laws on 571 claims.

Measure 49, billed as the "fix" for Measure 37, places sharp limits on development, allowing up to three-parcel lot splits in a fast-track process.

Jackson County commissioners treated Measure 37 applications like tort claims, and in Smith's opinion, the waiver was just another way to compensate the landowner and should be considered as no different than rendering a judgment in a lawsuit.

He said that instead of compensation, the county essentially paid the landowner by removing the offending land-use restriction and restoring market value.

Citing Article 1, Section 21, of the Oregon Constitution, Smith said that vested rights conferred by legal judgments cannot be overturned by a legislative act.

The Oregon Department of Land Conservation and Development has issued guidelines that suggest the rights of property owners who have received a waiver from the county but not the state are greatly diminished. The Dickey property only has a county waiver.

"The DLCD has it wrong," stated Smith in a letter submitted to county commissioners recently. "It is suggesting a dangerous, unlawful and wrongful course of action."

Stephanie Soden, spokesperson for the Oregon Department of Justice, said, "We would disagree that it is a tort claim."

However, Soden said these and other matters could be challenged in the courts.

In January, the state lost in the Oregon Court of Appeals a case known as Corey versus the DLCD that found property owners with waivers are entitled to certain benefits under the law. Soden said the state has appealed that ruling.

Smith argued that the rights of property owners should not be considered on a case-by-case basis to determine if a claim has been vested.

General guidelines from the DLCD for determining whether a property owner is vested include the requirement that a considerable amount of money must have been spent toward the development cost in addition to having the necessary state and local waivers.

Soden said the state has disagreed with Smith's analysis. "It really is a case-by-case basis," she said.

About 300 court cases from Measure 37 are currently working their way through the court system. "I don't know that anybody thought we would be debating this many complex issues," she said.

County Commissioner C.W. Smith, who isn't related to David Smith, said the legal argument posed by David Smith is interesting, and the county is still hoping for more clarification from the state before adopting a position on Measure 49.

"It's a legal puzzle that we're trying to figure out, and we're trying to figure out how to put the pieces together," the commissioner said.

David Smith said that what he's seen so far leaves him unimpressed with the new legislation.

"Measure 49 is the slickest piece of legislative chicanery to come down the pipe," he said.

Reach reporter Damian Mann at 776-4476 or dmann@mailtribune.com.