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Commissioner Charles Hurliman                                Department of Community Development

Commissioner Tim Josi                                               Bill Campbell, Director

Commissioner Mark Labhart                                      Lisa Phipps, Coastal Resource Planner

Tillamook Board of County Commissioners              Tillamook County

201 Laurel Avenue                                                     201 Laurel Avenue

Tillamook, OR 97141                                                 Tillamook, OR 97141

Comments on Measure 37 Claim No. M-06-09

Dear Tillamook Board of County Commissioners and the Tillamook County Department of Community Development:

Friends of Living Oregon Waters (FLOW) hereby files these comments on Measure 37 Claim No. M-06-09.

Friends of Living Oregon Waters (FLOW) Interest

Friends of Living Oregon Waters (FLOW), P.O. Box 2478, Grants Pass, Oregon, 97528, is an IRS-determined 501(c)3 organization comprised of hundreds of individuals dedicated to advocating for the protection and restoration of Oregon’s waters.  FLOW uses legal oversight and public education to help protect Oregon’s rivers, watersheds, lakes, wetlands, and groundwater from the impacts of pollution and development.  A golf course and associated resort developments as proposed by the Claimants (including hotel, condominiums and related developments) would adversely effect FLOW’s members use and enjoyment of the area in which FLOW members walk, hike, fish, swim, photograph, view wildlife and birds, study, and find solitude.

Comments on the Measure 37 claim filed by Frank and Joyce Bastasch on September 26, 2006 (“Claim”) are filed on behalf of Friends of Living Oregon Waters (FLOW) and its members, including members that live within the vicinity of this claim and also members that visit and enjoy the area.

We write to express our concerns regarding adverse impacts of the proposal upon the surrounding properties and natural environment and assert that this application does not even qualify for compensation or waiver under Measure 37 and we urge Tillamook County to deny this Claim.

Measure 37 Claim No. M-06-09 Comments

1. CLAIM NOT APPLICABLE FOR CONSIDERATION UNDER MEASURE 37

A.     The present owner of the property, Frank and Joyce Bastasch, acquired the land after the land use regulation for which they are seeking compensation/waiver was enacted, therefore they are not eligible for relief under ORS 197.352.

Regulations under ORS 197.352 are clear.  The claimants have not demonstrated a continuous claim of ownership as required under ORS 197.352.  The claimants provided no evidence to demonstrate this claim as required.

According to ORS 197.352, if the owner acquires the land after the date that the land use regulation at issue was enacted then the law does not allow waiver of land use regulations.

The claimants seek relief under ORS 197.352 from Tillamook County Land Use Ordinance §3.082, Coast Resort Overlay Zone.  The claimants purchased the property at issue on December 9, 1988.  The enacting date of the Coast Resort Overlay Zone and its application to the property came before the purchase of the property by the claimants.  When the claimants purchased the property at issue the land use regulation from which they are seeking relief was already in place.  The overlay zone expired and this is not a regulatory enactment as required by law.

B.   For Measure 37 to be applied to a claim, the land use law being cited must have restricted the claimants’ use of the property and caused a reduction in the value of the property.  This is not the case in the claim at issue.

ORS 197.352(1) provides compensation or waiver of land use regulations only for land use regulations that actually restrict the use or fair market value of the property.  For this claim there is no enacted land use regulation cited that restricted use or reduced the value of the property.

Additionally, the County adopted the Coast Resort Overlay Zone (the regulation at issue by the claimants) before the claimants purchased the property.  The claimants’ voluntary decision to allow this provision to expire does not justify a Measure 37 claim. The Coast Resort Overlay Zone previously granted a use of the property, and was not a restriction on the land, the expiration of which occurred during the current owner’s control of the property. 

C.  The information provided by the claimants is insufficient to establish any compensation claim nor have they shown that enforcement of a land use regulation has reduced the fair market value of the property.

The following evidence must be provided in order for the public to be given in a reasonable opportunity to comment on the Claim.  This information was not provided in a complete and timely fashion with a chance for the public to respond:

(1)    The specific land use regulation that has allegedly resulted in a reduction in the fair market value, the time of its implementation and the existing restrictions in place at the time the property was first acquired;  

(2)    The value of the property without those restrictions at the time those restrictions were implemented, brought to present value;

(3)    Whether the proposed use was allowed and technologically feasible at the time of the implementing regulation;

(4)    What was the most valuable allowed use was at that time, and its present value; and

(5)    Whether any uses were permitted at that time.                                 

D.  The Coastal Zone Management Act requires compliance with the Oregon Coastal Management Plan and Oregon land use regulations.

Claimants are not entitled to waiver or compensation for land use regulations “to the extent that the land use regulation is required to comply with federal law.” ORS 197.352(3)(C).  See also Columbia River Gorge Commission v. Hood River County, Oregon Court of Appeals No. 126652 (Opinion dated February 7, 2007).  

Pursuant to the Coastal Zone Management Act (CZMA), the State of Oregon has adopted the Oregon Coastal Management Plan (OCMP).  The property at issue in the claim is within the coastal zone and the jurisdiction of the OCMP. The OCMP encompasses existing Oregon land use laws and regulations including: the 19 Statewide Planning Goals, City and County comprehensive land use plans, and state agencies and natural resource laws.  Federal law requires adherence to Oregon land use laws and regulations as a condition of Oregon’s acceptance of federal assistance pursuant to the CZMA and Oregon land use laws and regulations within the coastal zone are exempt from ORS 197.352. 

E. Claimants failed to provide proper evidence as to amount of “just compensation” due.

ORS 197.352(8) provides for an alternate remedy “in lieu of payment of just compensation” and establishes that land use regulations should be modified according to the compensation due.  The claimants have failed to provide proper evidence to justify this claim and the public has no legitimate, usable information to comment on regarding the appropriate scope of the alternative remedy.

CONCLUSION OF COMMENTS SPECIFIC TO MEASURE 37 (ORS 197.352)

FLOW requests that Tillamook County deny this Claim.  The claimants have failed to provide adequate evidence to establish a right to relief under ORS 197.352.  The information they did provide was wholly inadequate to establish such a right to relief.

2. CLAIMANTS DO NOT HAVE A RIGHT TO RELIEF UNDER MEASURE 37.  IF THIS WAS A COMPLETE LAND USE APPLICATION, PROPERLY SUBMITTED BEFORE TILLAMOOK COUNTY, THE FOLLOWING ARE SIGNIFICANT ISSUES THAT SHOULD BE CONSIDERED:

IN ADDITION, THE CLAIMANTS DID NOT PROVIDE ADEQUATE INFORMATION IN THEIR APPLICATION DESCRIBING THEIR REQUEST, AND THEY FAILED TO DESCRIBE THEIR DEVELOPMENT PROPOSAL WITH ANY DETAIL OR CLARITY, SUCH AS A SITE PLAN OR ANY FORM OF PROFESSIONAL ANALYSIS.

A.     Wetlands

The Sand Lake Estuary is one of only two major estuaries designated “natural” by the State of Oregon.  The Beltz wetlands link the Reneke Creek Research Natural Area to the estuary.  Sand Lake is a critical marine-dominated estuary in Oregon as it lacks a major freshwater inflow.  In the marine-dominated zone there is a steady mix of marine life into and out of the estuary. The main channel serves as the entrance and exit for many fish and larger invertebrates that take advantage of the food-rich estuarine environment during some part of their life cycle.

A golf course development will likely propose to fill in freshwater wetlands, a rare type of wetland along the Oregon Coast.  This action would require a permit under Section 401 of the Clean Water Act. 

Any development proposal will require extensive correspondence and public involvement with the Department of State Lands. OAR 141-085-0015(2)(a)-(e) defines DSL's jurisdiction:

2) To be subject to the requirements of the removal-fill law, a project must be located within "waters of the state." The types of waters of the state and the physical limits of removal-fill jurisdiction are as follows:

            (a) Estuaries and tidal bays, to the elevation of highest measured tide;

(b) The Pacific Ocean, from the line of extreme low tide seaward to the limits of the territorial sea,

(c) Rivers, intermittent and perennial streams, lakes, ponds and all other bodies of water (except wetlands) subject to these rules, to the ordinary high water line, or absent readily identifiable field indicators, the bankfull stage;

            (d) Wetlands (defined in OAR 141-085-0010), within the wetland boundary         delineated in accordance with OAR 141-090-0005 to 0055.

            (e) "Other Bodies of Water," as used in ORS 196.800(14) are the following            artificially created waters which are considered "waters of the state":

(A) Wetlands and ponds artificially created from uplands, unless specified in OAR 141-085-0015(4)(5) that are:

                (i) Equal to or greater than (1) one acre in size; or

                (ii) Identified in a removal-fill authorization as a compensatory mitigation site.

                (B) Channels or ditches that are artificially created from upland that:

(i)                 Contain food and/or game fish; and

(ii)               Have free and open connection to waters of the state.

Notably, part (d), wetlands, is defined at OAR 141-085-0010(225) as:

"Wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.

It is important to consider that the Claimant cannot escape the regulatory requirements of state and federal permitting agencies.   DSL has jurisdiction over anything on that site that meets the hydric soil and vegetation requirement in the U.S. Army Corps Wetland Delineation Manual.  This applies to Sand Lake Estuary.

B.     Land Use Goals

Tillamook County’s Comprehensive Plan would still be a guiding county land use document for a land use application to develop the proposal area.  Significant factors that would need to be considered include flood hazards, coastal erosion (especially for a dune area with significant historical change as evidenced by the U.S. Army Corps aerial photographs over the last 50 years), and compatibility with the surrounding area.  In addition the Statewide Planning Goals would need to be considered and studied in light of the projects impacts, which are impossible to determine with the scant information provided by the Claimants.

The following is from section 2.1 of the Tillamook County Comp Plan for Goal 18 (Beaches and Dunes):

A number of hazards are associated with beach and dune areas. They include erosion, flooding, groundwater drawdown or pollution, and sliding. One or more hazards may be present in any given beach or dune area.

Erosion of the beach and dunes behind it can be caused by water movement or the wind. Waves and river or stream currents will easily erode sand from a beach or dune area. In areas where such losses are severe or areas where losses are not replaced, it is inadvisable to place structures or facilities of value. Wind will also transport sand where a thick vegetative cover is not present. The dangers of sudden destruction are not present but longer term hazards of inundation are.

Flooding is particularly hazardous in beach and dune areas because of the basic instability of these landforms. In addition, storm driven waves are powerful as they carry logs and other debris that act as battering rams.

Dune aquifers, because of their very porous nature are susceptible to over-withdrawal and pollution. Because dune sand is not a good filter, pollutants can travel long distances and foul dune aquifers. Some areas such as interdune areas are particularly susceptible because water tables are near the surface. Over-withdrawal of water can also foul a dune aquifer by causing saltwater to intrude. Finally, over-withdrawal of groundwater can kill off stabilizing surface vegetation and ultimately lead to dune erosion.

C.     Groundwater

Groundwater pollution is a significant risk concerning development on dunal aquifers.  Sand dune aquifers are very porous and experience very high infiltration rates. Because of this, areas downstream or in close proximity to sources of pollution may become polluted. Those areas of particular concern include all deflation plains and their fringes, areas near lakes, streams and marshes, and this includes neighboring properties to the Claimants.

In addition, removal of substantial quantities of water from a dune aquifer can lead to a local or regional lowering of the water table. This can in turn have several adverse consequences including lowering the level of the water table below the depth of wells, reduction of lake levels, draining of wetlands, loss of vegetation, saltwater intrusion, and intrusion of water of poor quality. Saltwater intrusion is a particular concern on sand spits and the thinner beach and dune strips which do not receive a large amount of infiltration and recharge of the aquifer. Over pumping of water in these areas can lead to intrusion of saltwater into the aquifer causing temporary or permanent pollution of the resource.

Under ORS 535.505 the Oregon Department of Water Resources has existing statutory authorization to apply Implementation Requirement 4. ORS 535.505 authorizes the Department to protect public health and welfare by regulating groundwater withdrawal to include drawdown considerations. “Local, state, and federal plans, implementing actions, and permit reviews shall protect the groundwater from drawdown which would lead to loss of stabilizing vegetation, loss of water quality, or intrusion of salt water into water supplies."

D.     Surrounding Environment (Risk to Quiet Enjoyment)

The Claimants proposed development poses significant risks to the surrounding environment, including to the quiet enjoyment of neighbors enjoying their property and visitors to the area enjoying public access.

For example, golf courses regularly use phosphorous.  A risk inherent in such a proposal is that the phosphorous will wash into neighboring properties and enter the estuary, wetlands or streams, harming aquatic life.  This could cause property damage and would have significant remediation costs. 

A study done in Austin, Texas indicates that, on the whole, golf courses have a greater affect on water quality than low density (24% impervious cover) residential developments. The study also concluded that both golf courses and residential developments have substantially greater affects on water quality than rural areas.  City of Austin, 1997, The Barton Creek Report, Barton Creek Canyons Study: 1993 - 1995, April 1997. http://www.ci.austin.tx.us/watershed/rptbarton.htm

A study of 686 deceased members of the Golf Course Superintendents Association of America who died between 1970 and 1992 showed colon cancer rates of 1.75 times the national average, brain cancer and non-Hodgkin's lymphoma rates over twice the national average, and prostate cancer rates nearly three times the national average. Source: American Journal of Industrial Medicine, 29(5): 501-506, 1996. 

Studies in other parts of the US have established a clear link between golf courses and pesticides in groundwater (U. S. Geological Survey, 2001, National Reconnaissance of Emerging Contaminants in the Nation's Water Resources, last modified on 09 Jul 2001).

·         Cape Cod Study - Pesticides found in groundwater at all four courses studied. Found in 9 of 12 monitor wells. (Cohen, S., S. Nickerson, R. Maxey, A. Dupuy and J. Senita. 1990. "A Groundwater Monitoring Study for Pesticides and Nitrates Associated With Golf Courses on Cape Cod." Groundwater Monitoring Review. Winter 1990:160-173)

·         Florida Study - Pesticides found in groundwater at 7 of 9 courses studied. Found in 52% of groundwater samples. Swancar, Amy, 1996, Water Quality, Pesticide Occurrence, and Effects of Irrigation With Reclaimed Water at Golf Courses in Florida: USGS Water-Resources Investigations Report 95-4250, 86 p.

E.     Wildlife & Fisheries

The estuary has potential for use by Aleutian Canada Goose, a federally threatened species.  The Sand Lake area is used by foraging bald eagles, a federally threatened species.  It also has the potential for foraging by the federally threatened peregrine falcon. Brown pelican have used the area. Historically the snowy plover, a federally threatened species, nested in the loose, unvegetated sand near the mouth of the Sand Lake estuary.  Great blue herons, migrating shorebirds, waterfowl, and an extraordinary diversity of wildlife also use the area including elk and black bears.

According to the Oregon Department of Fish and Wildlife, “development on this tract would reduce the effectiveness of the habitat for nearly all wildlife species including eagles and herons.  The portion of the tract near the ocean has potential habitat for the snowy plover, a threatened species under the Oregon Endangered Species Act.”

The Sand Lake Estuary is heavily used by foraging bald eagles, a federally threatened species, and Reneke Creek, which feeds the Estuary, has a run of Coho Salmon.

An earthen dam extends for approximately ½ miles between an existing wetland and the Pacific Ocean.  A potential exists to remove this earthen dam and restore upwards of 50 acres of the Sand Lake Estuary.  There is a potential of restoring a native run of Chum salmon in Reneke Creek by removing a tide gate which is located on this property. 

In addition development of a golf course and associated hotel and condominiums could have a significant impact on threatened and endangered fish species.  Consultation will be required with the appropriate state and federal agencies.

F.      Historical Properties

The Claimants would need to go through the National Historic Preservation Act process to determine if there are cultural and historical values on the site that should be protected.  Based on known cultural and historical values of the site this will trigger a lengthy review process.

G.      Federal Review

The complexity of the site and the impact of the proposed development will trigger lengthy federal reviews of various permit processes.  The Army Corps of Engineers will have to determine if any future proposal is eligible for a Clean Water Act §404 permit which will also trigger Endangered Species Act consultation under §7 with the National Marine Fisheries Service and the U.S. Fish and Wildlife Service.  In addition §404 triggers review and compliance with the Migratory Bird Treaty Act.

Under the Clean Water Act, §401 certification would also need to occur and the applicant would need to apply for a §402 NPDES permit as well.

CONCLUSION

We urge Tillamook County to reject the Claimants’ request for relief.  Their application is inadequate to justify a claim for compensation or waiver of land use regulations under ORS 197.352.

Respectfully submitted,

/s/ Joe Serres                                                                                       /s/ Matt Mattson

Joe Serres, J.D., M.B.A.                                                                     Matt Mattson

President, FLOW                                                                                Attorney, FLOW

/s/ Dan Serres

Dan Serres, M.S.,

Program Coordinator, FLOW