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About Illinois Valley news. (Cave City, Oregon) 1937-current | View Entire Issue (Feb. 18, 2009)
Illinois Valley News, Cave Junction, Ore. Wednesday, February 18, 2009 Page 11 17-year land-use struggle continues for Merlin resident By SCOTT JORGENSEN IVN Staff Writer Ward Ockenden’s 157- acre piece of property in Hugo looks much as it did when he purchased it in 1991 -- because it has remained undeveloped all that time. But not because Ockenden wants it the way. “My dream was to buy acreage, have 80 acres for myself to live on and sell off the rest to fund building my house, and live happily ever after,” Ockenden said. He has been trying to rezone the property to de- velop it for residential use since 1992. He said that he has spent hundreds of thou- sands of dollars trying to do so. But all he has to show for it so far is a gigantic stack of paperwork, receipts for attor- ney’s fees, a chip on his shoulder and the feeling that the same government that is supposed to help him has spent nearly two decades try- ing to deprive him and his family of their share of the American Dream. On the positive side, Ockenden’s struggle against Josephine county planners, the Oregon Dept. of Land Conservation and Develop- ment (DLCD) and Land Use Board of Appeals (LUBA), land-use activists and envi- ronmentalists has actually served to strengthen his re- solve. That has resulted in his quite active participation in county government during the past few years. It’s also had the acciden- tal effect of turning Ockenden into a martyr of sorts for grass-roots organizations like Americans for Prosperity (AFP). It uses his story as a rallying point for what it views as government, envi- ronmentalism and land-use restrictions run amok. In 1973, Ockenden’s property was zoned SR-5 for suburban residential 5-acre parcels. It had been changed to Woodlot Resource by the time Ockenden first ap- proached the Josephine County Planning Office about a zone change. Bob Hart was on the other side of the counter, and remembers that first encoun- ter with Ockenden. Hart said that after Ockenden inquired about the possibility of changing the zoning, he pulled out the county maps, looked at the official soils documents and determined Elementary Schools Lunch Menu Sponsored by H OMETOWN E INTERIORS 592-2413 THURSDAY, FEB. 19 Fruit parfait, popcorn chicken, pepperoni or veggie pizza, turkey salad sandwich, chicken salad wrap, chef or garden salad. FRIDAY, FEB. 20 Super sloppy joe, hamburger, Italian griller, totally turkey sandwich, classic wrap, Cobb or garden salad. MONDAY, FEB. 23 Crispy corn dog, hamburger, Rib-B-Que sandwich, totally turkey sandwich, clever club wrap, garden salad. TUESDAY, FEB. 24 Big beef taco Tuesday, chicken nuggets, pepperoni or cheese pizza, super duper sub, crispy chicken wrap, chef or garden salad. WEDNESDAY, FEB. 25 Cheesy macaroni, hamburger, chicken burger, tuna torpedo sandwich, it’s Italian wrap, pop- corn chicken garden salad. that the property was “clearly not good resource land.” Hart advised Ockenden to apply for a comprehensive plan amendment and sent him on his way. Even though local plan- ning officials doubted that the parcel was really woodlot resource, Hart said that the state pressured the county into rezoning large tracts. He noted, “When we had to redo the comprehensive plan, they told us that any- thing that was not developed and was over 20 acres in size had to be zoned for resource land, because we had too much residential land for the county. “Ward’s was one of the parcels that got rezoned.” Harold Haugen served as a Josephine County commis- sioner from 1981 to 1989 and from 1991 to 2005. As such, he’s become quite familiar with Ockenden’s battle. During the 1970s, Haugen said, Josephine County was called one of the “slippery six” counties in the state by the land-use advo- cacy group, 1000 Friends of Oregon, because it wouldn’t go along with its recommen- dations. Haugen said that Ockenden’s property was among those that caused the conflict between the county and 1000 Friends of Oregon. “Back then, we believed it was residential land, not resource land,” Haugen said. “What he’s proposing is the best use for that particular piece of land.” Haugen said that a lot of the land that’s been fought over throughout the last few decades is marginal and not suited for their resource des- ignations. He added, “A lot of the lands today, where land own- ers are coming in and asking us to change to residential, a good portion of those are lands that, had the state let us as a county make the decision, most of those lands would have been left in residential because they are not resource land and the owners wouldn’t have had to go through this expensive process.” Unexpected Opposition On Sept. 8, 1992, Ockenden filed his first appli- cation for a zone change. He said that he didn’t anticipate any difficulty, as there are several 1 and 2.5- acre parcels immediately adjacent to the south of his property. Aside from th at, Ockenden had hired a soil scientist to confirm that the soil was not good resource land. That was included in Ockenden’s application. But when the matter came before the county’s Rural Planning Commission on Jan. 11, 1993, Ockenden noticed that there were ap- proximately 60 people pre- sent at the courthouse. He assumed that they must have been there regarding another issue, and was surprised when they began protesting his ap- plication. “I figured nobody was there to oppose it,” Ockenden said. “It’s a simple little pro- ject. I didn’t know there was going to be a fight.” During that hearing, it was determined that some of the soil classifications for Ockenden’s property were incorrect. He was granted a continuance to May 10 to provide that information to Josephine County. Ockenden returned to the county planning office, where he was advised to hire a soil scientist and an attorney. He said it also was recommended to him that he get a topogra- phy map, a process which cost some $25,000. “Those are huge dollars, and I didn’t even start any- thing yet,” Ockenden said. After a continuance was granted, Ockenden’s applica- tion was approved by the Rural Planning Commission on June 28, ‘93. He was di- rected to prepare the findings, which were approved by the commission on July 16. That body then recommended that the county commissioners adopt the findings and ap- prove the application. The commissioners con- ducted a hearing on Sept. 1 and approved the zone change, pending the findings of fact. Those were adopted by the board on Jan. 26, ‘94, at which point the board offi- cially granted Ockenden his zone change. At this point, it appeared that Ockenden’s due diligence had paid off and that he was on track toward finally begin- ning his project. But on Feb. 8, ‘94, the project was ap- pealed to LUBA, and DLCD joined as an intervenor. In a sense, Ockenden had come that far -- just to begin again. Ockenden’s case came before LUBA on May 25, ‘94. That body ruled that the county erred in using soils not included in its comprehensive plan and that the county failed to prove its due dili- gence that the property was not right for forest or farm designation. The matter was re- manded to the county. LUBA ordered it to include the soils on Ockenden’s property in its comprehensive plan. On Aug. 8, Ockenden, attorney Walt Cauble and Josephine County Planning Director Mike Snider met and agreed to hold the application in abeyance until a text amendment could be made to the county’s comprehensive plan to include the new soil types. Ockenden agreed to pay for a soil expert and forester. The soil scientist Ockenden originally hired to work on his property had died during this proc- ess, so he had to hire an- other one. The text amendment application was filed with the county on Oct. 31 and a remand hearing was scheduled. Upon receiving further data, the Rural Planning Commission rec- ommended approval to the county commissioners on April 17, ‘95. On July 26, ‘95, the board approved the text amendment and held a rezoning hearing immedi- ately afterward. Some of the same activists who brought the matter before LUBA were present. They threatened to repeat the same action, claiming that the text amendment was inaccurate and used incor- rect slope data. In re- sponse, the board granted a continuance. The Next Level Ockenden’s patience with the system was wear- ing thin by this point, and on Feb. 10, ‘97, he filed a complaint against the county. He alleged that it refused to grant the zone change even though he had met all the requirements. The factual allegations in the complaint were incor- porated into a stipulation of support of a consent d e c r e e s i g n e d b y Ward Ockenden at his office with some of the paperwork accumu- Ockenden’s attorney. lated through 17 years of contention over the use of his prop- Josephine County erty. (Photo by Scott Jorgensen, Illinois Valley News ) commissioners directed county Counsel Steve Rich 23, ’97 that the defendants pay Ockenden $20,000 in to sign the decree on April 4, had misrepresented or with- reimbursement, despite the but didn’t notify the DLCD held information in the stipu- fact that he had paid, he said, director of their intent to do lations supporting the consent “in excess of $200,000 in so. Three days later, the final decree and granted the DLCD legal fees.” consent decree was signed by relief from the decree. Ockenden said that when the court. Ockenden appealed that rul- he approached the county for But Ockenden didn’t feel ing on May 4, ‘99, which was that money, he was given a as though the county was upheld two weeks later. check for $10,000 and had to honoring that decree. On June Ockenden appealed to lobby Haugen for the rest of 3, he filed civil contempt pro- the U.S. Supreme Court that what was owed him. ceedings. In response, the October -- it refused to hear court issued two orders to the (Continued Next Issue. his case. county to show cause. Read the entire article Through all of this, the In early July, the county online at illinois-valley- county had been ordered to filed a motion for relief from news.com) the decree, claiming that it constituted an impermissible land-use decision. The county Hand-tossed pizza did not repudiate its admis- by the slice. sion that it violated Ockenden’s civil rights and Cheapest beer in town! caused him damage. The state Land Conser- Come watch us toss your pie! vation and Development Commission (LCDC) moved to intervene on July 7, and that motion was granted by the court on Aug. 28. On Sept. 11, the state moved to vacate the consent decree, claiming that it vio- lated state land-use laws. But 592-2220 it did not challenge the 212 N. Redwood Hwy., Cave Junction county’s concession that it had violated Ockenden’s rights. U.S. District Court Judge John P. Cooney ruled on Dec. We Deliver CJ seeks collection of LUBA judgement (Continued from page 3) more complex daily and I am constrained in my financial freedom,” Sommer wrote. The contents of the Feb. 9 e-mail were disclosed dur- ing the council’s meeting that evening. Kelly updated coun- cilors on the state of the col- lection efforts, and said that the next step will involve a debtor’s exam. It would re- quire Sommer to answer questions about his assets and finances under oath. Kelly told the council that he would continue to seek the fees unless they ob- jected. None of the councilors indicated objection. If a debtor’s exam becomes nec- essary, he said, Sommer could soon be subpoenaed into court. “I expect that in two weeks time, maybe three weeks, he’ll be appearing before a judge to answer questions, and we’ll go from there,” Kelly said. In a Feb. 12 e-mail, Som- mer referred inquiries to his attorney, John Cameron Howry of the firm he has engaged. “It’s the firm’s policy not to comment to the media in open cases,” Howry said. Kelly said that he does not want to go after Som- mer’s assets, but is willing to if all else fails. “People who have five Mercedes without liens on them generally can pay debts,” Kelly said. “We don’t have to do a debtor’s exam. We could garnish his bank accounts. We could have the sheriff tow one of his cars away. “But I don’t want to cause excessive trouble. I just want the bill paid,” concluded the city attorney. For your financial planning*, investment*, and insurance needs, come to Crocker Financial Services 204B West Lister St. • Cave Junction 592-4454 Ted Crocker, Advisory Representative* *Services offered through H.D. Vest Investment Services, Member: SIPC. Advisory services offered through H.D. Vest Advisory Services. Non-bank subsidiaries of Wells Fargo & Company. 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