It looks like the days of the land use “hired gun” – soil and forestry consultants retained by a property owner to swear that his land was good for nothing but growing houses – may be drawing to a close.

HB 2761 passed out of the House Committee on Agriculture, Natural Resources and Rural Communities this morning on a unanimous vote with a “do pass” recommendation.

The bill would make the experts who do the farm and forest capability analysis answer to DLCD rather than to the property owner seeking to develop his land. If a property owner wanted to rezone his land from farm or forest use to a development designation, he would pay a fee to DLCD and the agency would then contract with an expert from a list of certified and approved soil scientists and other experts. This would ensure that the data relied on is objective and scientific and would eliminate the corruption that is inherent in the current process.

The bill was originally drafted to address only agricultural capability, but was amended to include forest capability as well. Goal One Coalition pushed hard for the scope of the bill to be expanded to address the problem of biased data produced by forestry consultants under pressure to produce the results they’ve been paid to obtain.

Unfortunately the amended version is still not available on the legislature’s website. We’ll post it as soon as we get a copy of the text of the bill as amended.

UPDATE 4/30: The amendments did not get into the House version. The fix is expected to happen in the Senate.

After the “thorough scientific review” ordered by the U.S. Supreme Court in 2007, the Environmental Protection Agency today (Friday April 17) issued a proposed finding that greenhouse gases contribute to air pollution that may endanger public health or welfare.

The proposed endangerment finding states:

In both magnitude and probability, climate change is an enormous problem. The greenhouse gases that are responsible for it endanger public health and welfare within the meaning of the Clean Air Act.

The scientific analysis found impacts of climate change include, but are not limited to:

• increased drought
• more heavy downpours and flooding
• more frequent and intense heat waves and wildfires
• greater sea level rise
• more intense storms
• harm to water resources, agriculture, wildlife and ecosystems

The proposed finding also takes into account the disproportionate impact climate change has on the health of certain segments of the population, such as the poor, the very young, the elderly, those already in poor health, the disabled, those living alone and/or indigenous populations dependent on one or a few resources.

In addition to threatening human health, the analysis finds that climate change also has serious national security implications. Escalating violence in destabilized regions can be incited and fomented by an increasing scarcity of resources – including water. This lack of resources, driven by climate change patterns, then drives massive migration to more stabilized regions of the world.

The proposed endangerment finding now enters the public comment period.

The 133 page finding itself and the 171 page “technical support document” can be found on EPA’s website here.

In a decision released April 1, the Court of Appeals ruled that Measure 37 waivers are not protected by the “goal-post statute.”

In Pete’s Mountain Homeowners Assn. v. Clackamas Cty , the court affirmed a Land Use Board of Appeals (LUBA) decision. The court rejected LUBA’s reasoning but found a different way to reach the same result.

ORS 215.427(3)(a), commonly known as the “goal-post statute,” statutorily guarantees that, once a person files an application, the “standards and criteria” that apply to that application don’t change. Petitioners argued “standards and criteria” include Measure 37 waivers – cannot be changed. The county agreed and approved their application.  LUBA reversed, concluding that, because Measure 37 itself was not a standard or criterion that applies to petitioners’ application, the goal-post statute simply did not apply; thus, nothing prevented Measure 49 from taking effect as to their application.  Petitioners sought judicial review, arguing that LUBA erred in construing the goal-post statute.

The court held LUBA’s reasoning – that “Measure 37 waivers authorize a partial avoidance of or alternative to the fixed goal-post for some property owners; Measure 37 waivers are not part of the fixed goal-post” - cannot be reconciled with the Supreme Court’s holding in MacPherson v. DAS, 340 Or 117, 132-33, 130 P3d 308 (2006). In Macpherson, the Oregon Supreme Court explained that the effect of a Measure 37 waiver – that is, a decision to “modify, remove, or not to apply” a land use regulation – is not merely to suspend the regulation that would otherwise apply; rather, the Measure 37 waiver amounts to an amendment of the land use regulations themselves as they would otherwise apply to the property at issue.

Nevertheless, the court found that LUBA’s error does not alter the outcome of the case.  While the goal-post statute encompasses Measure 37 waivers, Measure 49 still has superseding effect, rendering the goal-post statute inoperable as to applications based on Measure 37 waivers.

We are confronted with a case in which two statutes apply, but do so in inconsistent fashion.  On the one hand, the goal-post statute provides that, once petitioners’ application was completed, the standards and criteria that applied at that time–including, as we have held, their Measure 37 waivers–cannot be changed.  On the other hand, Measure 49 provides that petitioners’ Measure 37 waivers no longer have legal effect.  There is no way to reconcile the two statutes as they apply to this case.

When two statutes apply in an inconsistent fashion, there are rules by which the courts are required to resolve the inconsistency.  ORS 174.020(2) provides that, “[w]hen a general and particular provision are inconsistent, the latter is paramount to the former so that a particular intent controls a general intent that is inconsistent with the particular intent.”  See also Powers v. Quigley, 345 Or 432, 438, 198 P3d 919 (2008) (“[I]f two statutes are inconsistent, the more specific statute will control over the more general one.”).  In a similar vein, if an earlier statute is inconsistent with a later one, the later is held to implicitly repeal the earlier to the extent of the inconsistency.  See, e.g., State ex rel Huddleston v. Sawyer, 324 Or 597, 604, 932 P2d 1145, cert den, 522 US 994 (1997) (“‘If earlier and later statutes are in irreconcilable conflict, then the earlier must yield to the later by implied repeal.’” (Quoting Anthony et al. v. Veatch et al., 189 Or 462, 481, 220 P2d 493 (1950).).

In this case, both rules apply, and both lead to the same result:  Where the goal-post statute and Measure 49 irreconcilably conflict, Measure 49 prevails.  The goal-post statute applies generally to all applications for permits or zone changes, not just to cases involving Measure 37 waivers.  It is clearly the more general statute and must, as a result, yield to the more specific Measure 49.  Similarly, the goal-post statute, which dates back to 1983, Or Laws 1983, ch 827, § 23, must yield to Measure 49, which was enacted more than 20 years later.

We conclude, therefore, that, although Measure 37 waivers are part of the standards and criteria that cannot be changed under the goal-post statute, Measure 49 supersedes both Measure 37 and the goal-post statute.  It necessarily follows that LUBA correctly determined, albeit for a different reason, that the county erred in approving petitioners’ application.

On Tuesday the House Land Use Committee held another work session on HB 2229, the bill that came out of the Big Look Task Force’s four years of work.

Except for the “remapping” sections 6 – 8, the sections of the bill that remain in consideration are non-controversial.  The four “overarching principles” are still in. The Section 15 directive that infrastructure spending be prioritized to “attain the densities needed to support alternative modes of transportation” has been expanded to apply to cities and counties as well as state agencies. The Regional Problem Solving sections are intended to improve the existing process by identifying up front (1) what the regional problem to be solved is, and (2) to identify which local governments must be involved to solve that problem. It’s looking like the bogeyman of land use law “complexity” will be handed off to the Oregon Law Commission for a “policy neutral review.”

Sections 6 through 8 of the bill as submitted by the Task Force would allow two or more counties to come up with their own definition of agricultural or forest land. When the committee had worked its way through everything else and finally got to these sections, Chair Nolan (D-Portland) started off by asserting right out the committee’s consensus that these sections and the concept they embody won’t survive. But what, if anything, will take their place?

Rep. Greenlick said that he sympathized with the problem the Task Force was grappling with when they came up with their remapping idea, but thought the underlying problem was the difficulty and expense property owners ran into if they thought their property was mis-zoned and wanted to change the zoning. Rep. Clem (D-Salem) then proposed that the process should be made more fair, objective, and cheaper by providing that an expert selected and paid for by the appropriate state agency rather than the property owner evaluate the resource capabilities of the land, with the property owner reimbursing the state for the expense of the review.

Clem’s idea seemed to have some traction. We’ll see if it goes anywhere. Chair Nolan announced she expects the next work session to be the last, and that the bill in some form will move out of committee.

Clem’s concept – which he explained as only applicable to farm land – is currently embodied in HB 2761. The reasoning applies equally in the forest land context as well, and the concept should be expanded to apply to forest lands too.

The most enlightening moment of the day was provided by Rep. Wingard (R-Wilsonville). Wingard argued that the dispute really was between those who were pro-growth and those who were anti-growth, and that between the two there was really no ground for compromise. Rep. Greenlick (D-Portland) suggested the world to others did not appear so black and white; Chair Nolan tactfully and gently chided Wingard for imputing motivation to others.

What no one dared do was take up the opportunity offered by Wingard to deny the gospel of growth and argue proudly and forcefully, in public, that growth is responsible for most of our environmental problems and has caused global warming and is likely to result in catastrophic climate change; and that peak oil means maintaining exponential growth will prove impossible. Growth neither can nor should continue.

The time that you can say “growth is bad” in public will come.

The Big Look Task Force finished up its four years of work by preparing a Final Report and submitting a bill (HB 2229) to be considered by the legislature this session.

The most controversial proposal in the bill as submitted would give two or more counties the authority to develop their own definition of “agricultural” and “forest” lands, lands currently defined and protected by statewide planning Goals 3 and 4. Proponents of the change argue it would provide more local control and flexibility to Oregon’s land use system. Opponents argue that the change is nothing more than a ruse to open more land to development.

The bill is now being given a close look by the House Land Use Committee, chaired by Mary Nolan (D-Portland). Nolan also serves as House Majority Leader. Already three hearings have been held at which invited experts (including representatives of the task force) and the public could speak, followed by several work sessions.

The committee does seem dedicated passing some kind of a bill – but evidenced little fondness for HB 2229, at least in its present form. Committee members complained it’s too complicated, too expensive, doesn’t implement the recommendations of the Task Force’s Final Report – and, most significantly, fails to provide any framework to guide the land use planning program for the next 30 years, taking into consideration new realities such as climate change. Bottom line: any bill that emerges won’t look much like the one the Task Force submitted.

The “two counties” proposal is going nowhere – nobody likes it. Sections 5-8 seem to be dead. Ditto for Section 17, which would require cities to annex lands as it brings them into UGBs.

The committee agreed that the Task Force’s four “overarching principles” are a pretty good idea. The planning program does need a foundation, and the four principles – despite their generality and lack of legal significance – are pretty unexceptionable. The only edit the committee made was to strike “to all Oregonians” from the fourth principle, “Provide fairness and equity to all Oregonians.” So not all Oregonians deserve fairness and equity. Go figure.

The committee also seems likely to adopt some version of the regional problem-solving fix contained in the bill. This section of the bill is technical in nature and limited in scope, and is not controversial. A work session devoted to this topic is scheduled for February 24.

Section 18 of the bill would direct DLCD to appoint a work group to conduct a “policy-neutral” audit of land use laws and rules, with the objective of reducing complexity and improving consistency, and “to allow for greater variation between the regions of the state.”  Certain committee members wryly pointed out that “to allow for greater variation” isn’t a policy-neutral directive. With that exception, the committed agreed on this section of the bill, subject to fiscal constraints.

It appears that the committee may be willing to latch onto a few other underdeveloped suggestions in the bill as launching pad for a more ambitious rewrite of the bill. Sections 19 and 20 would direct LCDC and DLCD to coordinate with other state agencies to develop a strategic plan and to set up benchmarks and performance measures for the planning program. Committee members saw that these suggestions might offer a way to better integrate transportation planning and concerns such as climate change into Oregon’s planning program. These sections may evolve to be the heart of HB 2229 as it moves out of committee. For this reason alone, this bill and this committee bears close attention.

On a different subject: One more land use bill is worthy of wholehearted support. Rep. Clem (D-Salem), Chair of the House Agriculture, Natural Resources and Rural Communities Committee, has introduced HB 2761. The bill provides that DLCD would be the one to hire soil scientists to re-evaluate agricultural soils. If a property owner thought their land was improperly zoned to be protected by Goal 3, he would request that DLCD hire a soil scientist to assess the capability of the land. DLCD would then send the property owner a bill.

This bill would put an end to the widespread abuse of “hired gun” soils scientists confirming the desired conclusion that EFU land isn’t really farm land and so can be opened up to development. In essence, the current practice is that a landowner pays to get the opinion that he wants. HB 2761 would ensure that decisions are made based on independent and objective information.

The Oregon Land Use Board of Appeals on Tuesday overturned Clatsop County’s zoning approval of the Bradwood Landing liquefied natural gas terminal, proposed for a site 20 miles east of Astoria on the Columbia River. The Oregonian has a report.

LUBA’s decision found two major flaws with Clatsop County’s decision approving the facility – flaws that may be difficult to fix on remand.

First, LUBA agreed with petitioners that the county’s decision fails to protect both traditional fishing areas and the habitat of endangered or threatened species, as required by plan policies implementing statewide planning goals 16 and 17.

Other plan policies require that industrial development in the area be “small or moderate” in scale. The county had found that a LNG facility covering 40 upland acres and requiring accessory uses such as power lines, gas pipelines, and 58 acres of estuary that would be dredged for the ship turning basin was “small or moderate.” LUBA agreed with petitioners that the county’s explanation was flawed.

Goal One Coalition staff attorney Jannett Wilson along with Hood River attorney Brett VandenHeuvel represented a group of petitioners including Columbia Riverkeeper, Columbia River Business Alliance, Oregon Chapter Sierra Club, and Columbia River Clean Energy Coalition.

LUBA’s decision is available here.

Last August, Oregon Shores Conservation Coalition formally asked the Land Conservation and Development Commission (LCDC) to adopt a new statewide planning goal on climate change – sea level rise. The commission held a public hearing on that request at its meeting on Thursday.

The hearing on the Goal request was preceded by an informational briefing on climate change impacts (the staff report and other documents are available here). Agency experts and the Oregon Global Warming Commission  painted a picture of more frequent and intense storm events, more frequent and intense forest fires, less water during dry months – all of which will impact fish and wildlife, vegetation, and agriculture. Along the coast, rising sea levels will erode beaches and bluffs and drown coastal wetlands, threatening ecosystems and property owners alike. Coastal towns will be threatened with flooding, with damage to roads, buildings, bridges, and water and sewer systems. ODOT, unsurprisingly, weighed in that the proposed goal might prevent it from armoring its coastal roads and bridges.

The overall message conveyed was that even if efforts to slow and then halt greenhouse gas emissions are ultimately successful, climate change from global warming is already built into Earth’s climate system – it’s too late to avoid impacts. We’re going to have to adapt, no matter what we do to mitigate.

Global Warming Commission chair Angus Duncan and member Eric Lemelson wrapped up the briefing. They complained that the Global Warming Commission’s recommendations had been ignored by the Big Look Task Force. They said that if we’re to meet our carbon emissions goals, we’re going to have to change our development patterns to minimize greenhouse gas emissions – and we’re going to have to prepare for the inevitable impacts of climate change, as well. They urged LCDC to make climate change a core part of Oregon’s planning program.

Following the background briefing, Oregon Shores made its pitch for a new climate change goal. The presenting panel included Steve Schell and Ann Squier, who were members of LCDC in its first years. The panel members urged the present Commission to be as bold in confronting today’s new challenges as the original Commission was in drafting and adopting the goals initially, over 30 years ago.

The new Goal 20 as drafted by Oregon Shores would require the mapping and periodic remapping of the 100-year storm surge line as affected by rising sea levels. Development within the mapped future hazard area would be limited, and government support or expenditures – direct or indirect – for structures, infrastructure or public facilities within the 100-year storm surge. As an interim “safe harbor”, the new Goal would establish a standard for sea level rise of 1.94 feet by 2100, based on the conservative projection found in the 2007 IPCC report (which, as the Goal 20 proponents point out, does not take into account the dynamics of glacier and ice sheet flows).

What was surprising about the discussion that followed Oregon Shore’s presentation is the consensus among commission members that climate change needs to be addressed. The main shortcoming they saw in the Oregon Shores proposal was that its application is limited to the coast, while climate change mitigation is required statewide and climate change impacts will be felt statewide. The questions the Commission wrestled with were, how ambitious to be, and what could LCDC practically undertake given fiscal constraints?  DLCD director Richard Whitman estimated the goal adoption process, which requires a minimum of 10 public hearings throughout the state, could cost around $500,000 – and this at a time when the general fund is looking to be slashed by 20%.

The commission – at least for the moment – rejected the action recommended by DLCD staff, which was to deny Oregon Shores’ petition and instead address climate change within the existing framework of goals and rules (the staff report and other documents are available here). Commissioner Marilyn Warrix said she was convinced that LCDC needs to act forcefully to address climate change, but lamented the absence of direction from the Governor’s office. Commissioner Tim Josi – who is also a Tillamook County Commissioner – concurred that he was convinced of the need for action, but pointed to the marine reserve fiasco and warned of property owner revolt over development restrictions if the process didn’t result in buy-in.

At the end of the day it was the sense of the commission that (in the words of Josi) this is “too important to screw up” – but, as Chair VanLandingham said, “We have to think about this.” The Commission voted to defer any decision and directed Director Whitman to come back at its July meeting with a “decision tree” of options for the Commission to consider.

What has Oregon Shores accomplished? While LCDC has not (at least for the moment) initiated a Climate Change goal, they did spend an entire day thinking about the role land use plays in both causing climate change and in adapting to it. They get how important climate change is. They get it that business as usual is not an option – climate change cannot be ignored. Oregon Shores has succeeded in getting LCDC thinking about it – that’s a remarkable achievement. Now’s the time to keep the pressure on, to make sure the Commission follows through with action.

A decision by the Land Use Board of Appeals (LUBA) released on the last day of 2008 has resurrected from the dead the “other lands which are suitable for farm use” prong of the Goal 3 definition of “agricultural lands.”

The case was brought, briefed, and argued by Goal One Coalition board member Shelley Wetherell.

This was the first case to raise issues about “other lands which are suitable for farm use” under the Goal 3 definition of agricultural lands since the Oregon Supreme Court in Wetherell v. Douglas County, 342 Or 666 (2007) threw out OAR 660-033-0030(5).  That rule had prohibited the consideration of profitability or farm income in determining whether land is agricultural lands.

We feared the court’s decision would lead to a flood of applicants claiming that they couldn’t make a profit off their land, therefore it wasn’t properly zoned for farm use and should be rezoned to allow for residential development.

And that’s exactly what happened in the Douglas County case. The subject 259-acre parcel, zoned Exclusive Farm Use-Grazing, was formerly part of a 590-acre livestock ranch. In 2005, the county approved a partition that created the subject parcel, along with two other farm parcels that lie to the north and east. Following partition each of the three parcels were managed separately, with the subject property used for seasonal grazing. The subject property is developed with a dwelling and barns, and includes two ponds.

The NRCS soils map shows the subject property consists predominantly of soils with an agricultural capability rating Class I-IV – which would make it “agricultural land” under the “soils” prong of the Goal 3 definition. The property owner hired a consultant to get around the “soils” hurdle. The consultant produced a report concluding that the property’s soils are predominantly (67%) Class V through VII non-agricultural soils and not capable of growing timber.

The subject property had changed hands several times over the last decade, at an ever-increasing price that finally lost any connection to farm value. The original 590-acre farm was sold for $1,095,000 ($1,856/acre) in 1995, and for $1,463,000 ($2,480/acre in 2000. In 2006, the subject 259 acres of the original 590 acres were sold for $3,000,000 ($11,583/acre).

LUBA agreed with Wetherell that the property owner could not rely on the cost of servicing his debt on the property to argue that he couldn’t make a profit and that the land therefore wasn’t agricultural land. LUBA held that the relevant question is whether a reasonable farmer could lease or purchase the property for a lease or mortgage payment that reflects the property’s farm value and, with the other expenses that would be required to farm the property added to that lease or mortgage payment, generate farm income that would be sufficient to make a profit.

Goal 3 and its implementing rules (specifically OAR 660-033-0020(1)(b)) also protect as  “agricultural land” “[l]and in capability classes other than I-IV/I-VI that is adjacent to or intermingled with lands in capability classes I-IV/I-VI within a farm unit.” LUBA held, where the farm unit has only recently been broken up, the county must ask whether there is any significant obstacle to resumed joint operation. In the situation presented by this case, the remaining parcels within the original farm unit adjoining to the north and east are zoned farm grazing and continue in farm use as pastureland, and there’s nothing in the record to explain why the subject property could not be used together with those other lands for that farm use.

While not completely undoing the damage from the Supreme Court’s decision, LUBA’s ruling puts some starch back into a Goal 3 rule which was looking pretty limp.

Earlier this year, in one of Ron Eber’s final accomplishments before he retired and as a result of Goal One Coalition’s work on forest issues over the last few years, the Department of Land Conservation and Development (LCDC) amended its forestry rules, clarifying how the forest inventory was to be conducted (OAR 660-006-0010) and how forest productivity was to be determined (OAR 660-006-0005(2) and (3)).

As a result of the rule changes, it has become more difficult for a “hired gun” forestry consultant to conjure up the evidence needed to remove land from the protection of Goal 4 and reclassify it for development as “nonresource” land. Productivity must be determined and expressed in terms of cubic feet per acre per year. Acceptable data sources are specified. If published data is not available, methodology used by a forestry consultant must be reviewed and approved by ODF.

The Oregon Department of Forestry (ODF) has now issued a letter further clarifying their understanding of how the new rules are to be implemented. The letter was developed in consultation with the Department of Land Conservation and Development (DLCD) and ODF’s designated attorney at the Department of Justice.

The ODF letter explains that the rule establishes a hierarchy of data sources. In the first tier are the sources specified in the rule. The second tier includes other data sources determined by the State Forester to be of comparable quality. If no acceptable published data is available, “alternative methods” may be used to determine site productivity using direct tree measurements and calculations and appropriate site tables. Lastly, if site-specific productivity cannot be determined due to circumstances such as unavailability of suitable trees, sit-specific soil survey methodology may be employed.

The ODF letter reiterates that if data other than specified published data is used, ODF approval of the methodology employed must be obtained on a case-by-case basis. The letter also notes that productivity data assumes fully stocked stands and states that  if a landowner claims that the property cannot be fully stocked for some reason, ODF approval is required before the stockable area” may be reduced.

Goal 4 protects “lands which are suitable for commercial forest uses.” However, neither Goal 4 nor its implementing administrative rule establish any productivity threshold. The ODF letter concludes by reaffirming that ODF considers lands capable of producing 20 cf/ac/yr to be commercial forest land. While not a legal standard, the ODF statement should serve as persuasive evidence that land capable of producing 20 cf/ac/yr of commercial timber is forest land protected by Goal 4.

While we at Goal One Institute are not happy with everything in the letter – particularly the bit that in essence requires that the potential capability for growing ponderosa pine in the Willamette Valley be ignored – on the whole, ODF’s letter clarifies several issues which have been the subject of much litigation.  What impact the letter will have on LUBA’s and the courts’ future disposition of those issues remains to be seen.

The ODF letter is available here.

The Sierra Club won a stunning legal victory Thursday (November 13), blocking the Environmental Protection Agency from issuing a permit for a proposed coal-burning power plant in Utah without addressing global warming impacts. The EPA Environmental Appeals Board held that the EPA’s Denver office failed to adequately support its decision to issue a permit for the Bonanza plant without requiring controls on carbon dioxide.

The decision may well stop all new coal plant permitting while the EPA rethinks how the Clean Air Act is to be used to control carbon dioxide. That won’t happen until after the next administration takes office. In the meantime, all permits in the pipeline are stymied. The decision could affect permits for oil refinery expansion as well.

The Sierra Club argued that the EPA’s permit decision violated CAA sections 165(a)(4) and 169(3) by failing to apply “BACT,” or best available control technology, to limit carbon dioxide (“CO2”) emissions from the facility. The argument rested on the Supreme Court’s decision in Massachusetts v. EPA, in which the court ruled that CO2 is an “air pollutant” under the Clean Air Act. The Board remanded the permit for the EPA to reconsider whether to impose a CO2 BACT limit and to develop an adequate record for its decision.

A copy of the decision can be found here.

The significance of the Deseret Power Electric Cooperative decision cannot be overstated. As Joseph Romm reiterates at Climate Progress, the single most important policy measure the rich nations must embrace as soon as possible is to stop building coal plants without carbon sequestration. This ruling will accomplish that in the U.S., at least for a while – and it could give the Obama administration the opportunity to get serious climate legislation passed, which is crucial to getting serious international action on climate.

We’re going to have to replace all of the world’s existing coal plants with either CCS plants or zero carbon alternatives – and sooner rather than later – if we’re to get atmospheric CO2 back down to the 350 ppm necessary to minimize the risk of runaway global warming.

The Sierra Club’s press release is below the fold.

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