Dream House Turns Into Nightmare; S. Cabrera

In 1983,Tom and his wife Doris left their home in Houston, Texas, for a vacation in Oregon. Dur ing their visit, they fell in love with a piece of prop erty in the Hood River Valleywith a beautiful view ofMt. Hood. "It was perfect," says Tom. "Quiet, pristine. Doris and I decided right then that this would be Mr. Cabrera is Director of Communications for the Pacific Legal Foundation in Sacramento, California, which is representingthe Dodds. the ideal place to build our dream house after I retired. "Forty acres was a lot more than we needed, but the state said that was the minimum size parcel we could buy in that area. And $33,000was also a lot more than we planned on paying. But you have to see this place. We certainly didn't mind gouging our life savings for it." And so the delighted couple bought the 40-acre wonderland. In 1985,Tom quit a lucrative job and returned with Doris to Hood River to begin clear ing brush for the new house. "We walked into the planning department asking for the paperwork and information for a building permit," remem bers Tom. "That was the very first time that we were ever aware that our property had been taken away from us."

To their dismay, the zoning law affecting their parcel had been changed while they were in Hous ton. Under the new rules, the Dodds could not use their property for the exclusive purpose of build ing a home and engaging in peaceful living. Now, they could use the land only to grow and harvest timber. A house is permitted, but only if it is abso lutely necessary to accommodate a full-time forester on the property. Proving this necessity is pointless since growing wood for somebody else's 5 The western view from atop the Dodds' property. house is not what Tom had in mind for his retire ment. "I would have shot the dang airplane down prior to coming up here if 1knew all the problems it was going to cause. Noone wrote us to say I'm sorry, you no longer can use your land. Or, I'm sorry, it's no longer available." The Planning Commission did send a notice, but to the previous owners of the Dodds' prop erty. When confronted with this mistake, county officials pointed the finger at the prior owners claiming they had an obligation to pass the notice along to the Dodds. Prior owners have no such legal obligation.

As required by Oregon law, the Commission also published at least sixnotices in the newspaper. But the Hood River News doesn't reach Houston, Texas. Oddly enough, while county workers were notifying everyone but the Dodds about the planned zoning change, the couple continued to receive their tax bills for the 40-acre parcel. They also received correspondence from other county departments only weeks before the new zoning law went into effect. The Hood River Planning Department wrote the Dodds to inform them that a single-family house on the property would not violate state land use laws. And the county sanitary commission mailed a letter saying the Dodds had up to two years to put a well on the property. "BuySome OtherLot" While the.Dodds have been running through a legal obstacle course fighting for their property, the only advice the Hood River Planning Director gave was: "Buy some other lot or some other space in this township." But to get the money to do that, Tom would have to sell what is now worthless to him.

"The funny thing is, I couldn't even sell this par cel to someone who wanted to run a forestry busi ness," says Tom, referring to a forestry expert's appraisal which revealed that a timber business on the land wouldn't be economically viable or envi ronmentally sound. Twenty-two acres of the property are covered by a type of soil that won't support forest vegeta tion. Of the remaining 18 acres, only 12.6 are cur6 THE FREEMAN • JANUARY 1992 rently forested; the rest is subject to severe erosion because of steep slopes. On the forested area, the expected annual timber growth is 24 cubic feet per acre. This is considerably less than commercial land in Hood River County that produces an aver age of 100 cubic feet per acre each year. Tom and Doris know nothing about commercial timber management. Therefore, they would have to hire a professional to administer the harvest operations. Because of the dismal production out look, this expensive option would be sure to result in a net loss.

The most cost-effective way for the Dodds to make money on the property would be to chop all their trees in one fell swoop, i.e., clear cut. But the profit to be gained would be short lived. The value of the logs, after logging and hauling costs were paid, would be only $3,220. This meager return would be reduced by $2,400,the cost of reforesta tion required by Oregon law. Subtract another $209for severance taxes, and the Dodds would net $611. Of course, this doesn't consider income and property taxes. There are other problems associated with clear cutting the trees. According to the D()dds' forestry expert, a clearcut harvest would damage water shed yields, wildlife habitat, aesthetic qualities, and the protection to neighboring properties from wind. As retirees, the Dodds have no desire to go into the forestry business, and they certainly don't want to be forced into a losing business venture. And so the inescapable conclusion is that unless Tom and Doris are allowed to build their house, their prop erty is useless to them.

In other states, people in the Dodds' situation could be exempted from the harsh effects of a zon ing ordinance by asking for a variance. However, Oregon's strict land use laws don't make this rem edy available. Consequently, the Hood River Plan ning Commission and the Planning Director canJustice Louis D. Brandeis not, considering the unfortunate string of events, make an exception to the rules. Going to court is inevitable, but the Dodds have to exhaust every possible administrative avenue before they can do that. So far, every ruling has been against them. Should Hood River County pay the Dodds for their property? The Fifth Amendment says gov ernment must pay "just compensation" when it takes private property. The Dodds' attorney tried to remind the Planning Commission of this, but they said such a constitutional argument was not allowed in their hearings. However, Oregon law requires that every legal argument be made in these types of proceedings. In fact, failure to make an argument in the early stages of a case may pre vent one from presenting it later. So before the Dodds' battle began, they were stripped of their most valuable legal defense-the takings clause of the United States Constitution.

Tom and Doris would like a friend in Hood River, but friendly types seem to be in short supply. Wouldbe neighbors on adjacent lots turned out to be hostile. They would like the Dodds' property to remain vacant. The Dodds have written to United States Senators and Con gressmen and the Governor of Oregon, but they haven't been sympathetic either. After jumping unsuccessfully through the last administrative hoop, Tom and Doris are now forced to take their case to the courts. Unfortu nately, Oregon courts tend to rule in favor of gov ernment restrictions on the reasonable use of pri va te property. This means an almost certain petition to the United States Supreme Court. But that could be five or six years away, after the case winds its way through the judicial system. Meanwhile, because of the high income taxes Oregon imposed on their pension, the Dodds have moved to Vancouver, Washington. They no longer dream about those long walks around their property. D IDEAS ON LIBERTY E xperience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding.