Redefinition of Southern Oregon farm-forest land goes to rulemaking

By Michael Gelardi
Davis, Dwight & Tremaine LLP
Oregon law firm

A budgetary earmark passed by the 2012 Oregon legislature allows three southern Oregon counties to move forward with efforts to rezone local farm and forest lands for other uses. In order to rezone land, however, the counties must first convince the state’s land use commission that rural lands in southern Oregon are somehow different from other rural parts of the state. This is likely to be an uphill battle, but the counties’ efforts could have significant implications for regional development patterns and for Oregon’s overall land use system.

The earmark allocates state funds to Douglas, Jackson, and Josephine counties to conduct technical studies and mapping exercises necessary to petition the Oregon Land Conservation and Development Commission (“LCDC”) to adopt regional definitions of agricultural and forest lands. It also provides money for LCDC rulemaking activities described as “an anticipated Governor’s directive to pilot a regional land use planning project.” See 2012 Senate Bill 5701 (a budget reconciliation measure).

This earmark effectively implements a bill that the Legislature has declined to adopt during the past two legislative sessions. In 2009, the Oregon Legislature passed a measure that allows counties to comprehensively review and correct historic mapping errors that have resulted in restrictive farm and forest zoning on parcels that do not meet the state definitions of agricultural land and forest land. Under LCDC’s statewide planning goals, farm land is generally defined by soil class and forest land is generally defined as land suitable for commercial timber production. The southern Oregon counties believed that the 2009 law did not go far enough to remove rural land use restrictions because it did not allow them to rezone lands that actually qualify as farm or forest land under the statewide planning goals. The counties and property rights advocates therefore sought additional legislation to redefine what constitutes farm and forest land in southern Oregon.

The result was 2011 House Bill 3615 and 2012 House Bill 4095, which both would have allowed the three counties to petition LCDC to adopt rules creating regional farm and forest land definitions. Both of these bills were controversial and died in committee. These bills, however, were not necessary to allow a rulemaking process at LCDC, so in the final days of the 2012 legislative session the sponsors of the bills simply earmarked money to fund the rulemaking.

At this point, neither the supporters nor the opponents of the proposal have offered a compelling case for their respective positions. Supporters claim that the state law definitions of farm and forest lands are too broad and therefore hurt local economies by unnecessarily restricting development of lands that are not well suited for farming or forestry. It is not clear, however, that this outcome is actually a function of the state’s legal definitions and not simply the result of mapping errors caused by a lack of information at the time that the counties drew their zoning maps. The opponents are similarly hyperbolic in asserting that the counties’ plan will lead to a patchwork of rural subdivisions that pave farmland and create urban sprawl. Such a result is unlikely because additional state law prevents the development of urban infrastructure outside of urban growth boundaries.

The counties’ rulemaking petition will hopefully shift the debate away from ideological posturing and toward practical, fact-based decision-making. The technical and mapping work funded by the 2012 earmark should allow the counties to develop data that either proves or disproves the theory that significant amounts of land in southern Oregon cannot be used productively as a result of farm and forest zoning.

If the counties’ petition persuades LCDC to begin rulemaking, this will set in motion a complex process that could have significant implications across the state. The state rulemaking would be subject to public comment and may or may not result in significant changes to the current farm and forest definitions. If LCDC did adopt regional land definitions, then the three counties would each begin additional local public processes to redesignate lands within their respective counties. This would in turn put pressure on the state to allow regional land definitions in other parts of the state.

Ultimately, adoption of regional farm and forest land definitions could create economic opportunities by allowing some new rural residential, commercial and industrial land uses. These uses, however, could create conflict with local farming and forestry activities. Rural land development also presents natural resource issues such as water supply, wetland conservation, and waste management. LCDC and the southern Oregon counties will need to consider carefully how to manage these issues as the rulemaking process moves forward.

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