Thursday, June 6, 2019

Oregon legislature considers single-parcel exemptions from state land use regs

Interesting op-ed about a couple of pieces of state legislation in Oregon targeted at providing single-parcel exemptions from statewide zoning regs.  Query:  how is this not spot zoning?  If it's state legislation, does that mean the spot zoning analysis doesn't apply?  (I have not looked at the underlying regs, which may be more generalized than described in this op-ed...)

 

HB 3384 seeks the expansion of a non-conforming use — Oak Hill School near Lane Community College — on land zoned exclusive farm use (EFU). This school, on property once owned by Ed King of King Estate and attended by his children, was approved in the EFU zone in 1994 as a conversion of a single-family dwelling. Then it was fast-tracked by staff to help the school obtain a building permit before the adoption of a rule that may have inhibited its conversion.

The school has been allowed to continue as a non-conforming use — a use not normally allowed in the zone — since 2009, and the property and development, together assessed at close to $4.5 million, are paying no taxes. In exchange for these generous concessions came a certain responsibility: The school could not become more non-conforming by expanding uses and activities inappropriate in the farm zone and could not cross the divide between urban and rural.

Notwithstanding, Oak Hill expanded in 2012. Now it wants to expand again and is asking the Legislature to nullify two court decisions that the proposed expansion violates state law, first by the Land Use Board of Appeals (LUBA) and then by the state Court of Appeals, agreeing with LandWatch Lane County, a nonprofit dedicated to the protection of Lane County’s rural lands.

Passing HB 3384 will not only promote a special interest that has lost twice in the court system, it will also corrupt the intent of the non-conforming use provision to protect our resource land and set a precedent by erasing the jurisdictional line that separates the powers of state government. That’s a long way down a slippery slope from the original promise of Oregon’s land use program.

In 2016 Kay King, member of a wealthy logging family, applied for a permit to replace three dwellings that had been demolished by the applicant 22 years ago on one tax lot zoned exclusive farm use (EFU). A statute enacted in 2013 reasonably allows farmers to replace dilapidated farm dwellings on which they’ve been paying taxes for the last five years. No taxes, however, had been paid on the King dwellings since they were demolished, and there was no indication that the new ones would be associated with farm operations. In a recent decision the Oregon Supreme Court affirmed LandWatch Lane County’s appeal to retain the existing regulation.

While that decision was pending, King found a freshman state representative from Redmond, heavily supported by timber and other extractive industries, to sponsor HB 3024 that would overturn the Supreme Court decision. If successful, this would give King what she wants and establish legislation that would allow more houses on farmland regardless of when they may have been removed in the past, whether taxes have been paid and whether they are associated with farm practices.

https://lawprofessors.typepad.com/land_use/2019/06/oregon-legislature-considers-single-parcel-exemptions-from-state-land-use-regs.html

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