In May, Governor Kitzhaber signed Executive Order 12-07 to allow new definitions of farmland and forestland in Jackson, Josephine and Douglas Counties.
In order to understand the importance of EO 12-07, a brief history of Oregon land use law is in order.
In January, 1975, the newly created Land Conservation and Development Commission (LCDC) adopted Oregon’s first 14 statewide land use planning goals.
Among the most important and controversial goals were Goals 3 and 4. Goal 3 defined “agricultural land.” Goal 4 defined “forest land.”
The definitions of agricultural land and forest land are extremely broad, encompassing nearly every acre of privately owned rural land in Oregon. In fact, nearly 97% of all privately owned rural land in Oregon is zoned as farmland or forest land by Goals 3 or 4 – in all, nearly 25 million acres, and less than 15% of that land is in crop production.
Adding all of the land in Oregon’s urban areas reduces that percentage by less than 2%. In other words, nearly all of Oregon’s private property is zoned as farmland or forest land.
Among that land is hundreds of thousands of acres that have never been used for farm or forest uses, and land that has not and cannot support profitable farm or forest operations. As the Governor notes in EO 12-07:
“In some areas, lands currently planned for resource uses have little direct value to their owners for those uses.”
Now there’s an understatement!
These numbers don’t include all of the land owned by the federal, state, and local governments in Oregon. In fact, over 55% of all land in Oregon is owned by government, not private parties.
What does all this mean? It means that Oregon has a lot of land that LCDC calls “farmland” or “forest land” that really isn’t, and that we are under no risk of running out of bare land for food or timber production.
Since the definitions of “agricultural land” and “forest land” were first adopted in Goals 3 and 4, they have proven controversial. As former DLCD Director Richard Whitman (currently the Governor’s Natural Resources Policy Director) noted in 2009:
“Two of the primary reasons for establishing Oregon’s land use system were the desire to preserve working farms and forest operations and to limit inefficient sprawl. Recent research indicates that Oregon’s program has been relatively successful in achieving both of these goals relative to other states. Nevertheless, there is continuing sentiment in some parts of the state that our land use policies do not adequately recognize differing conditions in different regions, either in terms of what lands are needed for farming or for forestry, or in terms of growth pressures. Some counties also report that their mapping of farm and forest lands is not accurate.
The classification of lands for farm or forest uses is a key foundation of Oregon’s land use planning system. Although owners of farm and forest lands receive property tax incentives for these uses, landowner discontent can arise if the lands are not economically productive for those uses and non-farm and nonforest uses are limited or prohibited. The farm economy also is in a continual state of evolution, with the types and amounts of land needed for production changing over time. Lands that may have been economically viable for growing one crop or for a particular type of livestock when the land use system was first conceived may no longer support the same kind of economic base. In other areas, some lands considered low quality 20 years ago are now home to highly successful agriculture uses, such as vineyard operations. This perceived disconnect has created discord and resentment that the state land use system is too inflexible, and that farm and forest designations are too focused on soil types rather than what lands are functionally necessary or important for agriculture or forestry.”
Over the nearly 40 years since they were first adopted, LCDC has rejected multiple efforts by local governments around the state to provide some relief from these one-size-fits-all definitions. Despite the fact that Oregon is the only state in the United States where a single state agency has complete control over rural land, LCDC has refused to allow local governments to play an equal role in planning for their own rural areas.
Although LCDC is fond of referring to local government as its partner, there is no partnership in Oregon rural land use law. LCDC is in complete control, and counties have none.
This hasn’t come as a shock to local governments. In fact, LCDC made it clear almost immediately after Goals 3 and 4 were adopted that they were not going to respect or listen to their local government partners. One example says it all.
In 1974, before the Goals were first adopted, LCDC asked Jackson County officials to convene a local task force to create a definition of “farmland” for the county. Jackson County happily obliged, and created a citizen task force of local residents.
The task force represented citizens from all different areas and occupations in the county, including farmers, ranchers, foresters, city residents, attorneys, rural residents, planners etc.
The task force held multiple meetings, met with the public on multiple occasions, and worked diligently and thoroughly on a definition of farmland that truly fit the needs and desires of the local residents.
At the end of the process, the task force identified 12,000 acres of private property in Jackson County as farmland. The County Commissioners, appreciative of the hard work and effort put in by Jackson County volunteers, accepted that figure and presented it to LCDC.
LCDC made short work of Jackson County’s efforts. In short order, LCDC rejected the Jackson County proposal, told the citizens of Jackson County that they weren’t capable of properly zoning their rural areas, and informed Jackson County that LCDC would be defining “agricultural land” for Jackson County.
The end result? By LCDC mandate, over 200,000 acres of private property in Jackson County is zoned as farmland, nearly 20 times what the County residents had identified. Included in this definition is land that no one could reasonably identify as farmland.
Jackson County residents and local officials were not pleased with the outcome. That resentment continues to this day. As Richard Whitman noted, telling a property owner that his land is “farmland” or “forest land” when it really isn’t is a good way to create “discontent” – that’s a polite way of putting it.
Yet despite universal recognition of the problem, neither LCDC nor any Governor has been willing to do anything to solve the problem.
Until now.
Last week, Governor Kitzhaber signed Executive Order 12-07. EO 12-07 authorizes three counties – Jackson, Josephine, and Douglas, to enter into an intergovernmental agreement, and in cooperation with LCDC, create new definitions of “agricultural land” and “forest land” that better reflect what truly is farm and forest land in Southern Oregon.
EO 12-07 is the direct result of a long-time effort by Oregonians In Action, the Oregon Association of Realtors, and State Representatives Bill Garrard, Sal Esquivel, and Co-Speaker Bruce Hanna, to address a problem which has existed since 1975, and which lawmakers and planners have identified repeatedly since that time.
As a result of negotiations between the Governor and the House Republican caucus, led by Co-Speaker Hanna, the 2012 Oregon legislature authorized $350,000 in grants to allow the three counties to do the planning and public work needed to create definitions of farmland and forest land that truly fit the needs and desires of residents of the region, and to present those definitions to LCDC.
Upon receiving the petition filed by the three counties, LCDC will then begin the process of amending Goals 3 and 4 to reflect the new regional definitions.
Of course, LCDC could reject the efforts of the three counties and refuse to change the Goal 3 and 4 definitions, but they do so at their own peril, having been told of the need for a more regionally based approach for almost 40 years, and having been instructed by the Governor to work with the three counties to address the problem. No Governor has ever been more explicit in ordering LCDC to address this problem, and the legislature has never authorized money to provide a solution.
If successful, we will have the first new definition of “agricultural land” and “forest land” in Goals 3 and 4 – ever.
EO 12-07 is a monumental order in Oregon land use planning history. It is now up to the County Commissioners and residents of Jackson, Josephine, and Douglas Counties to lead the way, and prove to the rest of the state that local government is perfectly capable and competent of making sound and reasonable land use decisions.
Congratulations to Representatives Garrard and Esquivel for their tireless efforts on this issue, and special thanks to Co-Speaker Hanna for his refusal to let this issue die. Also, thank you to Governor Kitzhaber, for agreeing to issue the Executive Order in the face of opposition from the extreme elements within his own party – sometimes a common sense decision based on overwhelming evidence remains difficult in the face of strident and overzealous opposition.
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