Mr. Cabrera is Director of Communications for the Pacific Legal Foundation in Sacramento, California, which is representing the Dodds.
“Fighting a bunch of bureaucrats was not what I had planned for my retirement,” says Tom Dodd. “But I believe the Constitution’s on my side. If it isn’t, then something is very wrong here.”
Despite 22 years of military service, including 140 combat missions over Vietnam, Tom Dodd still wasn’t prepared for the struggle that awaited him in Hood River, Oregon. “We’ve been traveling down a hell road for the last seven years,” says Tom bitterly. “I just want what is fight.”
For Tom, that means the right to build his home on his land—to live in it, sleep in it, dream about the walks he and his wife will take near the hills around it, and to relish in the exquisite terrain that would embrace it. But government regulators have different plans.
In 1983, Tom and his wife Doffs left their home in Houston, Texas, for a vacation in Oregon. During their visit, they fell in love with a piece of property in the Hood River Valley with a beautiful view of Mt. Hood.
“It was perfect,” says Tom. “Quiet, pristine. Doris and I decided fight then that this would be 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 $33,000 was 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 Doffs to Hood River to begin clearing brush for the new house. “We walked into the planning department asking for the paperwork and information for a building permit,” remembers 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 Houston. Under the new rules, the Dodds could not use their property for the exclusive purpose of building 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 absolutely necessary to accommodate a full-time forester on the property. Proving this necessity is pointless since growing wood for somebody else’s house is not what Tom had in mind for his retirement. “I would have shot the dang airplane down prior to coming up here if I knew all the problems it was going to cause. No one 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’ property. 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 six notices 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 thata 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.
“Buy Some Other Lot”
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 parcel to someone who wanted to run a forestry business,” says Tom, referring to a forestry expert’s appraisal which revealed that a timber business on the land wouldn’t be economically viable or environmentally sound.
Twenty-two acres of the property are covered by a type of soil that won’t support forest vegetation. Of the remaining 18 acres, only 12.6 are currently 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 average 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 outlook, 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 reforestation required by Oregon law. Subtract another $209 for 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 Dodds’ forestry expert, a clear-cut harvest would damage watershed 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 property is useless to them.
In other states, people in the Dodds’ situation could be exempted from the harsh effects of a zoning ordinance by asking for a variance. However, Oregon’s strict land use laws don’t make this remedy available. Consequently, the Hood River Planning Commission and the Planning Director can-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 government 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 prevent 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. Would-be 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 Congressmen 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. Unfortunately, Oregon courts tend to rule in favor of government restrictions on the reasonable use of private 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.