Rogue Advocates filed appeals today of Jackson County’s March 25th approval of Mountain View Paving’s application for non-conforming use and floodplain development permits.

Mountain View Paving has been operating an industrial facility on land zoned Rural Residential and within the Talent urban growth boundary without any land use permits for over twelve years. Mountain View Paving is a needed industry, but in this instance, it is the right business in the wrong place. The operation is located in the Bear Creek floodplain adjacent to Talent city limits and over 150 senior residences are directly impacted by toxic fumes, dust and noise.

Executive Director Melissa Matthewson explained, “The land use laws that regulate this industry are in place for a reason. They safeguard public health and safety and minimize costly conflicts for everyone’s benefit, including business interests. This issue has been simmering for a long time and the county’s unwillingness to enforce land use safeguards for so long is allowing this problem to boil over. The county should have upheld the regulations a long time ago and it should certainly do it now. The purpose of our appeal is to see that the County enforces their own rules.”

The County has conveniently ignored the industrial use on residential zoned property since the first application for nonconforming use in 2001 was withdrawn. A second nonconforming use application ten years later churned through the planning review system for another year before it was also withdrawn. The County has now issued a preliminary decision to grandfather the asphalt plant use forever, and has chosen not to look back more than ten years as enough verifiable proof of continuous use to make this decision. 

Rogue Advocates Board President Steve Rouse commented that, “the County is setting a very low bar—if folks can slide under the radar for ten years, they may be allowed to avoid zoning safeguards in the future. Rogue Advocates prefers to work collaboratively with the County to implement land use policy but in this case the precedence of their decision is unacceptable.”

Rogue Advocates has been working closely with their Talent members and the retirement community located adjacent to Mountain View Paving to empower them in the land use process. The City of Talent also requested the city’s more conservative ordinances for land within the Urban Growth Boundary be applied by the County. Talent's request was rejected by the County in their decision and the city may also file an appeal. 

For millennia, Colorado's Yampa River Valley has followed the rhythms of wildlife mating and migration, the habits of elk and grouse and bear. The arrival of ranching in the 1880s altered the pattern a little, but radical change didn't occur until the last half of the 20th century. That's when the big ranches began to be broken up into small ranchettes and vacation-home lots, the kind of low-density exurban sprawl responsible for habitat fragmentation across the West.

Desperate to preserve Routt County's character, in the mid-1990s its commissioners fought to pass Land Preservation Subdivision ordinances, or LPS. It was an early form of conservation development, an increasingly popular land-planning tool that develops part of a property to fund the preservation of the rest.

Conservation development is usually regulated at the county level. Ordinances encourage developers to cluster houses on a portion of land and leave 40 to 80 percent of it as open space, and often give a "density bonus" for such clustering, allowing up to 70 percent more housing units per project.

Such developments typically sell well and command premium prices. They feel in touch with an agricultural past, where people can live within walking distance of hiking trails and fishing ponds. And they've found favor across the West: The passage of such ordinances took off in the '90s and has more than doubled in the last decade.

They seem to offer a way for mountain communities to have it all. A 2011 study estimated that conservation development has preserved nearly 10 million acres across the U.S. since the 1960s. But questions about its effectiveness remain: Is that open space really helping to maintain biodiversity?

"The key to integrating nature and urban growth is scale," says Armando Carbonell, chair of the Department of Planning and Urban Form at the Lincoln Institute of Land Policy in Cambridge, Mass. Local land planners and developers, he says, need to understand both the ecosystem context and the ecological consequences of their actions.

Sarah Reed, a conservation biologist with Colorado State University and the Wildlife Conservation Society, co-founded the Center for Conservation Development at CSU in fall 2010 to assess county development choices and their ecological consequences.

In 2010, Reed and her coworkers examined land-planning ordinances in all 414 counties of the 11 Western states. While over a third of the counties had regulations that promoted some form of conservation development, many did so in ways unlikely to preserve critical wildlife habitat or other natural values. Few promoted land stewardship, or ensured that open space parcels were contiguous within or among developments.

One of the biggest issues, Reed concluded, is the quality and type of data used to create the conservation design. Her preliminary results show that only 13 percent of the West's conservation development ordinances mandate a study of the property's ecological attributes. "There's no reason to believe that (the land that) got protected is any better than what got developed," Reed says. In contrast, she points to Routt County, which specifically requires developers to identify and avoid "Critical Habitat of Threatened and/or Endangered species, including nesting, roosting, mating, birthing and feeding areas."

Then there's the question of who manages the conserved land once the houses are built. Reed found that few ordinances require any sort of post-development oversight: That's left up to homeowner associations. Some make weed control, wildfire reduction, habitat restoration and riparian management a priority and set up funding; others don't. And there are other flaws; Wyoming and Colorado, in particular, are notorious for allowing reserved land to be reopened for development after 65 and 40 years, respectively.

Another problem is lot size. In 2011, Reed examined 372 conservation developments in Colorado and found that the average total size of a single project was 501 acres, with varying amounts set aside as open space, mostly in small scattered parcels. A 2006 study of developments near Boulder with open-space parcels ranging in size from 200 to 500 acres found that they were no different in terms of wildlife variety than traditional exurban sprawl.

"We should have been seeing vesper sparrows, grasshopper sparrows, the specialized species of conservation interest," says ecologist Buffy Lenth, the study's lead author. Instead, she and her coworkers saw starlings, grackles and robins, the same old generalist species and invasives that characterize the fragmented habitat of traditional development. The reason was not entirely clear. Lenth suspected heavy use of the open space by residents and their pets might be a factor, along with its small size and a design intended to maximize views rather than conservation.

All of these issues contribute to a growing sense that clustered development is not living up to its promise. "I've watched the Land Preservation Subdivision program as it was developed and used over the years, and from a habitat preservation standpoint, it's not great," says Jim Haskins, wildlife manager with the Colorado Parks and Wildlife Steamboat Springs office in Routt County.

Marabou Ranch, one of the newest and most upscale LPS developments in Routt County, offers hints as to where the problems might lie. The 1,717-acre subdivision five miles west of Steamboat Springs fulfills Routt County's guidelines to the letter and circumvents many, but not all, of the issues identified by Reed. It has reserved 1,325 acres as open space; a lot map in the sales office marks the location of a lek site for Columbian sharp-tailed grouse and an elk-calving area, both of which are off-limits to development and subject to seasonal closure. A resident manager is responsible for stewardship. But 62 homesites are scattered throughout the site; the open space, though large, is fragmented, with lots of edges. The sensitive habitat is located at the edges of the property; the lek lies along the road and the calving area is crowded by homesites.

Carbonell tends to blame the way such developments are originally planned. "It's important (for planners and developers) to start interacting before a design gets finalized. In the absence of understanding how watersheds work, or how an ecosystem works, you can get development patterns that are not terribly functional."

Not surprisingly, the projects that have done well on an ecosystem scale are enormous, built by developers with deep pockets and a grand vision. Santa Lucia Preserve, Calif., is 20,000 acres, with 18,000 acres permanently conserved. Galisteo Basin Preserve outside of Santa Fe, N.M., is 13,522 acres, with more than 12,800 acres of open space. Highlands Ranch, Colo., is 22,000 acres with 13,000 acres preserved, including a "backcountry wilderness" of 8,200 acres that supports an elk herd.

These three developments preserve meaningful chunks of open land and connect with other natural reserves -- conservation easements, state parks, national forest. They also take habitat stewardship seriously. The Santa Lucia Preserve established an endowment to fund the Santa Lucia Conservancy, a nonprofit group with an independent board, to manage its preserve land and set long-term ecological goals. The Galisteo Basin Preserve coordinates with two nonprofit organizations, a corps of graduate students, and local volunteers to perform monitoring and restoration work. Highlands Ranch employs three full-time natural area managers and seasonal rangers, plus resident volunteers.

However, it is possible to achieve landscape-level results through interaction and flexibility. Just west of Salt Lake City, Utah's Tooele County specifically requires that at least 75 percent of a development's open space lots "shall be in a contiguous tract" and "adjoin any neighboring areas of open space." Douglas County, Colo., is currently amending its regulations to mandate formal community meetings before a project is finalized. Then the development can better meet the conservation goals articulated in the community's master plan: Wildlife corridors and open-space parcels can be planned so that they align, watersheds can be protected along their length,  and development can be steered so that it clusters along major roadways and population centers.

"Watersheds, ecosystems, migration patterns can be functional in close proximity to people and cities," says Carbonell. Conservation development is just another element in the planning process. Reed recommends that the open-space parcels be big enough (she is currently seeking funding to determine the best size), and that they minimize edges and be properly monitored and maintained. The entire project should be surveyed at the start to identify critical habitat, and the development should be planned around it. Finally, the open-space parcels should communicate with other natural areas outside of the development.

Ideally, Reed says, each community should develop a vision that manages growth while protecting critical areas and corridors for biodiversity -- and then use "conservation development as one way to attain that ideal configuration."

April 22, 2012

By Damian Mann

Mail Tribune

An overturned property rights initiative formerly known as Measure 37 could rise again if voters approve two local ballot measures on May 15.

Ballot measures 15-110 and 15-111 seek to reinstate rights gained under Measure 37, the property rights law passed in 2004 that provided a mechanism to waive land-use laws that resulted in a loss in land value.

Measure 37 was overturned when Oregon voters approved Measure 49 in 2007.

Frustration from many landowners over Measure 37's defeat gave rise to the two new ballot measures.

Ballot Measure 15-110 would establish a charter amendment that would force Jackson County to defy the state against any future land-use regulations that reduce the value of properties.

Ballot Measure 15-111 would require the county to protect the rights established under Measure 37, which have been rejected by the U.S. 9th Circuit Court of Appeals.

"We didn't start this fight," said Jerry McCauley, chief petitioner for the ballot measures. "Almost 600 folks had Measure 37 approvals that got yanked away. They set us up for failure."

But county officials say the ballot measures fly in the face of state law and will be quickly overturned in the courts.

"They will not be enforceable, because they are unconstitutional," said County Commissioner Don Skundrick.

If the ballot measures pass, the county would be placed in the unfortunate position of enacting the amendment, he said.

"But then the state will come down on us and say it's not constitutional," Skundrick said.

Conflict over land-use planning goes back to the 1970s, when Oregon began rezoning properties to protect farmland and open space from development.

Property rights advocates, who disputed much of the state zoning, thought they'd turned the tide away from statewide planning when Measure 37 took effect, and many property owners believed they could finally develop their land.

After Measure 37, McCauley said he was encouraged by the county to file a Measure 37 claim on his 240-acre property in Sams Valley, hoping to divide it into more than 40 parcels.

He said he spent $400,000 and jumped through various bureaucratic hurdles, which he thinks were an effort to stall his plans to develop.

After Measure 49 passed, McCauley said his investment was wiped out along with his dreams to build a compound on his property for his extended family.

McCauley, 68, who is involved with Americans for Prosperity of Jackson County, said he thinks voters will support the measures, but acknowledges the issue will probably head to the courts.

"I don't think it's a problem getting it approved," he said. "It's what happens afterwards that will be the problem."

Jackson County commissioners initially supported Measure 37, encouraging residents to file waivers. The state calculates 578 waivers were approved here, totalling in excess of $500 million in potential claims.

Court battles are still ongoing, pitting the Board of Commissioners against the landowners who formerly supported them.

Steve Rouse, an Applegate opponent of Measure 37 and the two new ballot measures, said the new measures go well beyond the scope of Measure 37.

Rouse said the county wouldn't be able to enact any land-use laws, because the laws would trigger claims being filed by affected property owners. And the county would be in the position of constantly fending off lawsuits filed by the state over local land-use issues.

"It's just too much," he said.

Rouse said voters ultimately rejected Measure 37 because it aggressively sought to overturn years of land-use laws that protect open space and farmland.

Commissioner C.W. Smith said he was a supporter of Measure 37, but Measure 49 changed everything.

He said the county would be in violation of state law if it continued to support the Measure 37 waivers.

Though he understands the frustrations of many property owners, Smith said he doesn't support the two new ballot measures because they would further confuse the situation, costing time and money for legal challenges.

"Based on their definition, we would have to compensate everybody for Measure 37," he said.

Reach reporter Damian Mann at 541-776-4476, or email dmann@mailtribune.com.