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The Tentative Truce of Fire Road
by
Norman Maxwell
Norm Maxwell directs a firefighters' crew shuttle helicopter bound for the Fish Creek
Fire, south of Fairbanks, Alaska. Photo by Sam Harrel, curtesy of the Fairbanks
Daily News-Miner.
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Norman has been fighting the Lane County Land Management Division(LMD)/ Private
Developer Complex over changing the zoning out here at the end of Fire Road near
Lorane, Oregon for several years now. When he is not fighting to preserve Fire Road
he is saving the world from the dangers of wildfires.
The LMD/developer complex plays by its
own rules that have little to do with Oregon land use law or even Lane County land
use policy. When you, the little people fighting a land use decision, find a law
or regulation that clearly states the Complex can't do something, the law or regulations
seems to "evolve" so that while it still won't work for little people,
it enables the Complex to accomplish what needs to be done in order to pack more
houses on less land.
I have fought the complex every step of the way here on Fire Road. From the initial
county level hearing to the last action at Oregon's Court of Appeals the 12th of
June 01. I won the initial hearing because nobody took me seriously and the county
hearings official hadn't yet been "career counseled" about who he worked
for. The county appealed the Hearings Officer (HO) initial decision along with the
developer and he obligingly reconsidered his decision and promptly reversed himself
with no real explanation as to why.
I thought this was not right so I appealed it to the Board of Lane County Commissioners.
The commissioners debated hearing it for 20 minutes and decided not to hear the case
but pass it on to Oregon's Land Use Board of Appeals (LUBA). I paid one thousand
dollars for the County Commissioners' time. Fees like this are designed to keep little
people from cluttering up the process here in
Lane County.
The County supplied its own lawyer at LUBA, paid for in part by my own tax dollars.
The developer hired a former LUBA attorney or "referee" as they are called.
At the LUBA hearing in Salem the two LMD/developer complex lawyers sang a duet about
how everything was legal now because I hadn't challenged anything in a timely manner,
even though none of the land use actions had been noticed to me or anybody else.
Apparently it was my duty to psychically divine what was going on and challenge it
even though in some cases there were no processes to do so.
LUBA bought the Complex's line and two weeks later I got a letter in the mail explaining
that the Complex had done nothing wrong and that the zoning was still reduced from
Rural residential 10 acre to RR 5. I called my lawyer and we decided that this was
too much and that it must go before the State of Oregon Court of Appeals. My personal
opinion is that the former LUBA attorney
of the developer had some sort of influence over the LUBA panel but I shall never
be able to prove that.
So last Tuesday I traveled to Salem with my lawyer and we carried
our huge binders of the case known officially as Maxwell v. Lane County
and Developer into the Supreme Court chamber with the beautiful
stained glass ceiling with the seal of the State of Oregon. I vacillated between
thinking that the Court of Appeals would be rigged like everything else and the hope
that it wasn't. I felt a surge of savage joy when my lawyer finished her oral arguments
and Lane County's lawyer stepped up to the plate. Before he could get very far along
in his explanation in how it was all my fault, Presiding Judge Haselton informed
him that he and the other two judges on the Court of Appeal panel had read the record,
the briefs submitted by the Complex and my lawyer, had conferred together, and had
unanimously concluded that the land use decisions and actions allowed to happen at
the end of Fire Road "smells."
I was so happy to discover that I wasn't completely crazy all this time. We sat back
and watched the three judges ask the "tag team" lawyers pointed questions
with no legitimate answers. Life is beautiful. Judge Haselton adjourned the court
and said that they would have a written decision in 90 days or less. I don't think
anybody in the room had a lot of doubt in who's favor the panel will find. The remedy
will be a tough proposition as another land use action would frequently be permitted
on top of the first illegal action. The enemy slunk into an elevator and disappeared.
The developer is currently pasting the
illegal lot across my west fence to more land to make it a lot greater than 10 acres
like it was originally instead of the 2 acre unit it is now. A friend of mine wishes
to buy the lot providing it can be made legal. The developer could be hoping to insulate
some of the past sins that went into the creation of this substandard lot by making
it legal again and selling it. I really don't care. Of course we must have pain and
suffering at the Land Management Division. I believe that an employee there coached
the developer on how to create the extra lots needed to break the zoning in my neighborhood.
I have little doubt that this sort of thing has happened more than once here in Lame
County and it gets by because the little people don't want to have to spend the money
to fight city hall. Each successive hearing rubber-stamps the previous decision until
you finally break out of the spheres of
influence and reach an unrigged court. Probably not one in a hundred little people
is willing or able to do this.
I am waiting for the written decision from the triumvirate of judges. I am hoping
that this is going to be the long awaited case that will bring Lane County's LMD
into compliance with Oregon land use law. I will write about the written decision
just as soon as I see it.
[See Battle for Fire Road, WxNW.org, Late
Summer 2000, Fall 2000 and Winter
2000 issues - Ed .]
Editor's note: Norm has had the emotional and "ideological" support
of many people, especially in his neighborhood, but he and his spouse have carried
the political and financial burden of this struggle for rural preservation pretty
much alone. Unfortunately, the monetary costs for citizens to stand up for justice
is great. In an effort to discourage "frivolous" hearings and appeals,
the regulatory justice system has become very expensive for citizens. The only way
there will be systematic, coherent challenges to the corrupt powers-that-be will
be to see each struggle as a chapter in the story about building a citizens movement
that can raise the consciousness and resources for the legal aspect of the struggles
for rural preservation -- a struggle related to the world-wide struggle for economic
sanity, ecological viability and a relationship with the land. To help Norm financially
recover from his struggle to uphold the much praised and mis-implemented Oregon land
use laws, please contribute to:
Fire Road Defense League
c/o of West By Northwest.org
P.O. Box 51251
Eugene, Or 97405
or PayPal to publisher@westbynorthwest.org
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