Apr 21st, 2005 - 21:10:55
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The resolution of the "rezone and development" attempt at the end of Fire Road near the rural village of Lorane, Oregon is nearly complete. After a couple years of legal fighting, I demonstrated to the developer and his backers in Lane County's Land Management Division that I wasn't going to give up and Oregon's Court of Appeals wasn't buying the multiple levels of "creativity" that went into breaking the zoning at the end of Fire Road.
The bad news about the Court of Appeals' opinion in the case of Maxwell v. Lane County & Developer was that it addressed only one aspect of the half dozen highly questionable issues Marianne Dugan, my attorney, presented the three judges who heard the case of Maxwell v. Everybody. Basically, the triumvirate of Judges Wollheim, Linder and Presiding Judge Haselton decided that Lane County's own land use policies stated that lots used to defeat current zoning in exception areas such as at the end of Fire Road, must be legally created. It never would have occurred to me otherwise.
The good news was that I needed to win only one element of the case in order to stop the development cold. The judges declined to rule on "migrating tax lots," whether or not roads--real or imagined--divide one lot into two, legal sized lots shrinking below current zoning size to abet a rezone, and a host of similar details. The LMD/developer complex had the option of trying to take "Maxwell v. Everybody" to Oregon's Supreme Court. It did not do so. I don't know why but perhaps the people involved suspected that the OSC might really tear into the case and hand down a whole bunch of decisions that they wouldn't like--if it chose to hear it at all.
Marianne Dugan explained to me that it was likely that the Court of Appeals judges saw no reason to stick their necks out on a bunch of elements of the case when they could stop the development dead in the water with Lane County's own policy on the legal creation of lots. Now that I was in a position of power, I was able to negotiate with the developer on what to do next. The Land Management Division (LMD), that had usurped the developer on the card for the title bout at the Court of Appeals (Maxwell v. Lane County) suddenly wasn't really involved. The county's attorney insisted that it was all between me and the developer, but if he and I could reach an agreement, the LMD would make it happen on the ground.
I felt like the Mouse that Roared. On a shoestring budget, I had taken on a big name (former county commissioner) developer's lawyer, the unlimited resources of Lane County to include a free lawyer for the developer, coupled with the developer's new (former) Land Use Board of Appeals "referee" lawyer. While I still wonder if I really won, at least I'm fairly certain that they lost. Marianne explained to me that the Court of Appeals would remand the mess back to the Land Use Board of Appeals that had rubber stamped Lane County's decision. Land Use Board of Appeals (LUBA) would immediately hot potato "Maxwell v. Lane County" back to the county's hearing official who originally found in my favor before reversing himself when the Land Mngt. Div. appealed Lane County's own decision.
County Commissioner Anna Morrison informs me that the hearings official is NOT a county employee. Rather he is a contractor. Whatever. He draws a paycheck from the county. Marianne speculated that rather than try to justify all the shaky land use actions and decisions that we had challenged, the HO would most likely just void the whole attempted development and make the developer start over. It is reasonable to suspect that the developer's lawyer figured this out as well. It was entirely possible that we could run the case one element at a time back through the county process, to LUBA and on to the Court of Appeals, conceivably over decades. If nothing else, I think I demonstrated to the opposing forces that I will never give up.
If I won't quit when I'm losing, you can bet that I won't quit when I'm winning. It is reasonable to assume that the Court of Appeals would examine takes 2,3,4, etc. of "Maxwell" under the same lens. The developer and I met last spring before fire season and hammered out an agreement whereby the neighborhood zoning would revert to the original ten acre lot size and he would sell two lots to a buyer I had found and keep one for himself. The developer agreed to vacate an old road easement that had been vacated once before so it couldn't be used for another try at dividing one lot into two. The two acre lot next door was reformatted to its original, legal,12 acre size and was sold to the buyer I had found.
The young couple who had bought the place three years ago had no clue that there were serious legal problems involved with the place. They were unable to sell and move away when they wished due to the cloud of complications. This operation took almost a year due to the complexities of dealing with multiple parties and layers of Lane County "lot line adjustments." This piece of prime Siuslaw flood plain has finally been sold and the house rented out. The young couple divorced during the process. Still, I told them that I was fighting the developer before they bought the place and I shared every detail with them. They were especially excited to learn that the developer had somehow performed another LC "lot line adjustment" on their property after he (the developer) no longer owned it and they had specifically forbade him to do so. I still don't know how you perform a "lot line adjustment" on land you don't own but it was so.
Now we are waiting for the second 11 acre lot to be sold. A private road needed to be graveled and surveyed and the couple who bought the other 2 acre "migrating tax lot" needs to sign off on a lot line adjustment that will make their lot legal at least by Lane County's own standards and put a little girl's grave within their boundaries. We are very close to completion and I will be glad when it's all done. This will leave the developer with one 11 acre lot with half of it across the Siuslaw River with no legal access and the other half a fresh clear cut too steep to build on. The half acre or so of flat land on this side of the river is bound by Shurgar Creek on one side, the Siuslaw on the other with a fine northern exposure at the foot of the clear cut. No matter where you locate a house, the neighbors' driveway that runs exactly through the middle of the postage stamp flat spot, will be just outside the window and the sewer line and/or water will have to go under the drive.
The entire process of defending Fire Road has been one of ignorance fighting big money coupled with unnoticed (as in unannounced) "preliminary" land use decisions and actions. There is lots of money to be made by breaking zoning. There is none at all to be made fighting development. Most of the neighbors who didn't want to be developed promptly deserted the Fire Road Defense League when it turned out it would waste time and money and I would do it anyway. I sure hope they don't brag about how "we" showed 'em. If everybody resisted development like the Battle for Fire Road, rural Lane County would remain the place we know and love. Rest assured that every attempted development here is based on the premise that "anything that isn't challenged is therefore legal."
I can think of no other legal venue like this. When you grow dope or molest children, private citizens do not have to put up thousands of dollars to challenge your behavior. Nor does the government side with you and supply its own lawyer to protect your agenda. Anyway, you can beat "city hall" if you're willing to go the distance.
Please sign me: Norm Maxwell, Block Captain, Retired, Fire Road Defense League
Norm Maxwell is a Bureau of Land Management Fire Fighter, on the ground and with a BLM helicopter crew, and an union negotiator. Norm is also a writer who celebrates his unique western perspective. You may contact him through the Fire Road Defense League.
For more WxNW.org articles on Fire Road visit:
The Continuing Battle for Fire Road by Norman Maxwell
The Tentative Truce of Fire Road by Norman Maxwell
Fire Road's "Lake Lorane" by Norman Maxwell
On a more personal note --
The Fire of South Canyon: Remembering Storm King by Norm Maxwell
Home, Home On Fire Road by Norm Maxwell
For other Lane County Land Use issues also see:
They May be Giants: Why We Challenge Cell Phone Towers--The Birth of a Citizen's Group to Rethink the Profliferation of Cell Phone Tower Placement by Mona Linstromberg
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