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
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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.
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