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Chapter 8.5


Wicked Thoughts at a Public Hearing
(Oregon Planners' Journal)

By Richard Carson

I am writing this during a public hearing for a planned unit development. I have seen more than my fair share of these hearings and I have come up with a few gross generalizations which I want to share with you.

The ownership of property and the right to use it are fundamental tenants of both the Constitution and the Bill of Rights. However, these rights are often assumed to extend beyond a property owner's actual property line. The vacant lot next door may provide a neighboring property owner with a bucolic picture of nature; a buffer against the problems of urban living (like noisy neighbors); and screens off any unsightly and tacky residential amenities like above-ground pools, satellite dishes and the ever popular use of blue tarps that cover everything from wood piles to junk cars.

The legal remedy to such problems is to buy the adjacent property, but that would mean not acquiring the more important basic human necessities like a big house, a big boat, a big screen T.V., and a big sports utility vehicle. Combine this backward set of priorities on how to spend money with the fact that people don't understand (or care) about the property rights of others, and it ultimately leads to litigation centered on a local land use decision.

The outraged and uninformed neighbor spends money to hire a lawyer and possibly other experts to prove that a proposed development project is an abomination against nature (their nature) and violates all manner of codes and the comprehensive plan. This outrage results in an appeal of a staff or planning commission decision to the locally elected officials, and ultimately to a land use appellate board or a state court of appeals.

In every state there is a cottage industry made up of professionals who make a living aiding and abetting such unhappy neighbors. I say "cottage industry" because many of these folks pride themselves on their anti-establishment and a counter-culture lifestyle that is strangely at odds with the often gluttonous lifestyles of the property owners they represent. It is a perverse fact of life that instead of buying the now offending property, the neighboring property owner ends up financially supporting people he (or she) otherwise would shun. You know, like lawyers with names like Freedom Child.

Of course there are occasionally development projects that may cause some real property damage to a neighbor. This could be through increased storm water runoff or geologic hazards. But many issues brought foward are simply an attempt to deprive the developer from his or her right to use their property within the legal development codes of the city, county or state. Most responsible and competent developers try to blunt such overreaction by talking to neighboring property owners early in the development process. Legal challenges can often be avoided by making concessions to the neighbor in terms of buffering or design.
However, when a neighbor decides to become Don Quixote, it is usually we planners -- the "staff" -- who take the verbal abuse, telephone harassment, and get belittled and berated in the public meeting as being the developers dupes or just plain incompetent. There is of course the ever popular lack of notice. However, this never explains why the appellant is always there. There is also the "suspicious" fact that "critical" information is missing. This is usually some report, minutes or occasionally tapes of the meeting.

These hearings usually result in comments by the neighbor about the different kind of subhumans who dare to want to live on 8,000 square foot lots, while the superior ones live on 10,000 square foot lots. The people of smaller lots (and morals) are said to increase crime, vandalism and let their dogs run around unleashed. And what happens when the neighbor can't make a legal, rational or even coherent argument? Then it's time to start waving petitions, applaud loudly and make catcalls. All of this is calculated to intimidate the elected officials into reversing a thoughtful decision out of fear of losing a handful of votes in an election.

One of the great problems of a highly legalized land use planning system found in some states is that planning becomes contested on a variety of frivolous legal points. A project is not approved simply because it complies with the approved local government standards. Are there greater evils in a less legalistic and less adversarial planning system? Perhaps, but it hard to imagine it after sitting through 4-6 hours of mind numbing blather that is cloaked as being incredibly relevant testimony.

For the record, and to placate the more savvy consultants, the more polished and establishment consultants fleece their corporate clients with equal zeal. Hey, it's a democracy!

Richard Carson is the managing editor of the Oregon Planners' Journal and a board member of the Oregon Chapter of the American Planning Association.

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Common Sense
by Richard H. Carson