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STANDARDS

ASSESSMENT Of PROPOSED PIONEER MEADOWS SUBDIVISION
CONTAINING APPLEGATE TRAIL RESOURCES

III. STANDARDS

In summary, there is a wealth of information describing the procedures for analyzing and protecting historic resources. These procedures include federal and state statutes, regulations, local ordinances, and court opinions. In general, Oregon is behind the rest of the Nation in analyzing and protecting its historic resources.

. Federal Laws and Regulations
. State of Oregon Rules and Regulations
. Josephine County Comprehensive Plan: Historic Resources
. Josephine County Rural Land Development Code: Archeological Resources and Historic Buildings and Sites

A. Federal Rules and Regulations For Historic Resources

Preserving historic properties as important reflections of our American heritage became a national policy through passage of the Antiquities Act of 1906, the Historic Sites Act of 1935, and the National Historic Preservation Act of 1966, as amended (Appendix B). The Historic Sites Act authorized the Secretary of the Interior to identify and recognize properties of national significance (National Historic Landmarks) in United States history and archeology. The National Historic Preservation Act of 1966 authorized the Secretary to expand this recognition to properties of local and State significance in American history, architecture, archeology, engineering, and culture, and worthy of preservation.

The National Register of Historic Places is the official list of these recognized properties, and is maintained and expanded by the National Park Service on behalf of the Secretary of the Interior. The National Register of Historic Places documents the appearance and importance of districts, sites, buildings, structures, and objects significant in our prehistory and history. These properties represent the major patterns of our shared local, state, and national experience.

The quality of significance in American history, architecture, archeology, engineering, and culture is present in districts, sites, buildings, structures, and objects that possess integrity of location, design, setting, materials, workmanship, feeling, and association relate to several criteria for evaluation and criteria considerations. There are four National Register evaluation criteria.

"A. That are associated with events that have made a significant contribution to the broad patterns of our history; or"
"B. That are associated with the lives of persons significant in our past; or"
"C. That embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or"
"D. That have yielded or may be likely to yield, information important in prehistory or history."

Inventories are conducted to locate sites, and those sites that cannot be avoided during ground-disturbing activities would be evaluated. Mitigation measures and appropriate consultation would be undertaken for those sites deemed significant.

Bureau of Land Management, Historic Trails Office

The primary information office for the Oregon, California, Mormon and Pony Express National Historic Trails is the Bureau of Land Management, Historic Trails Office. They can provide a wealth of information on trail routes, historic sites and accessibility and trail conditions:

Bureau of Land Management
Historic Trails Office
1701 East E St.
Casper, WY 82601
Tel: 307-261-7700
http://www.wy.blm.gov/historictrails/index.htm

B. State of Oregon Rules and Regulations

1. Oregon Historic Trails

ORS 358.045 Oregon Trail; comprehensive program for development
ORS 358.055 Oregon Trail; promotion as major tourist attraction
ORS 358.057 Value and significance of state historic trails

ORS 358.057. Value and Significance of State Historic Trails. Oregon recognizes the value and significance of its historic trails, including the historic Applegate Trail.

ORS 358.057(3) "(3) The Applegate National Historic Trail"

Oregon Senate Bill 823 – The Oregon Trail Protection Act

This bill is not law and there is no similar bill for the Applegate Trail. It is provided here as information.

Oregon Senate Bill 823, The Oregon Trail Protection Act, is a product of the 74th Oregon Legislative Assembly – 2007 Regular Session. It was sponsored by Senator Avakian, Senator Atkinson, and Representative Bonamici. SB 823 authorizes the State Historic Preservation Office (SHPO) to restrict or condition development along the route of the Oregon Trail. It would require the public body that receives an application for development to submit the application to SHPO for review. If passed into law, important ideas from the bill follow.

The Oregon Trail deserves protection and preservation as a finite, irreplaceable and nonrenewable historic and cultural resource and an intrinsic part of the historic and cultural heritage of the people of Oregon and the United States (Section 1.(1)). The historic and cultural importance of the Oregon Trail is a matter of statewide concern, and sections 1 to 3 of this 2007 Act apply to the approval or denial of an application for a permit or other development approval under state law, charter provisions, ordinances or rules regulating the issuance of permits or other development approvals for a change in the use of land within 660 feet of the route of the Oregon Trail (Section 1.(2)).

The Oregon Trail means a pathway for early emigrants to the state of Oregon and a practical corridor to the western United States as identified on the 1959 Oregon State Highway Department map of the Oregon Trail in 10 sections, identified as ' T. E. D. Draw'g No. 6138' and on file with the SHPO (Section 2.(1)). A Public body has the meaning given that term in ORS 174.109 (Section 2.(2)).

The Oregon State Historic Preservation Officer shall protect and preserve the Oregon Trail in Oregon as a public trust for the benefit of the residents of the State of Oregon (Section 3.(1)).

If a public body receives an application for a permit under ORS 215.402 to 215.438 or 227.160 to 227.186 or an application for any other development approval to change a present use, including construction or remodeling of structures at a location within 660 feet of the route of the Oregon Trail, the public body shall refer the application to the State Historic Preservation Officer for review of the potential impacts to the Oregon Trail before making a decision on the application (Section 3.(2)). The SHPO may restrict or condition development along the Oregon Trail to protect and preserve the Oregon Trail without regard to the presence or absence of visible evidence of the Oregon Trail at the location and consult with other public bodies (Section 3.(3)).

2. The Oregon Community Foundation - Oregon Historic Trails Fund

Purpose of Fund. In 1998, the financial assets of the Oregon Trails Coordinating Council were transferred to OCF to establish the Oregon Historic Trails Fund, dedicated to projects related to Oregon historic trails as recognized by the state legislature in ORS 358.057 (downloaded May 20, 2007, http://www.ocf1.org/grant_programs/ohtf_rfp.html).

Oregon Historic Trails Fund identified the Applegate Trail as having significance and its historical context as immigration/regional settlements (see Section IV.F.).

3. The Oregon Historic Trails Advisory Council

The successor to the Oregon Trails Advisory Council, the council serves as an advisory body for activities and policies involving Oregon's historic trails (ORS 358.057). Its nine members, appointed by the governor, promote public awareness of the significance of historic trails and advise a variety of public and private agencies and organizations (Executive Order No. EO-84-10 and revised under Executive Order No. EO-94-02). The council is Oregon's official liaison to other states, associations, and federal agencies in acquiring national, as well as state, recognition of Oregon's historic trails.

4. Historic Property

ORS 358.475. Policy. The Legislative Assembly hereby declares that it is in the best interest of the state to maintain, preserve and rehabilitate properties of Oregon historical significance. Historic preservation incentive programs provide a public benefit by encouraging preservation and appropriate rehabilitation of significant historic properties. These historically significant portions of the built environment contain the visual and intellectual record of our irreplaceable cultural heritage. They link us with our past traditions and values, establish standards and perspectives for measuring our present achievements and set goals for future accomplishments. To the extent that Oregon's historic preservation incentive programs encourage the preservation and appropriate rehabilitation of significant historical property, the programs create a positive partnership between the public good and private property that promotes economic development; tourism; energy and resource conservation; neighborhood, downtown and rural revitalization; efficient use of public infrastructure; and civic pride in our shared historical and cultural foundations.

ORS 358.480 Definitions for ORS 358.480 to 358.545.

ORS 358.480(2) "Historic property" means real property that:

"(a) Is currently listed in the National Register of Historic Places established and maintained under the National Historic Preservation Act of 1966 (P.L. 89-665) or, if the National Register of Historic Places ceases accepting nominations, that is approved for listing on an Oregon register of historic places;"

Oregon SHPO Archaeological Services’ Definition of Historic Sites

Historic non-archaeological sites consist of property types such as buildings, sites, structures, objects, and districts that in general are still used or maintained. In most cases, linear features (regardless of condition) such as roads, railroads, ditches and canals, are recorded as historic non-archaeological sites and not as historic archaeological sites. However, abandoned linear features that have a high potential of adding to knowledge of past land use practices (e.g., Chinese mining ditches, early wagon roads) will be recorded as historic archaeological sites and given Smithsonian trinomial numbers (Appendix C1).

The historic Applegate Trail (ORS 358.057(3)), as an early abandoned wagon road, has the high potential of adding to knowledge of past land use practices and is recorded by the SHPO as a historic archaeological site.

5. Oregon Historic Preservation Plan

ORS 358.605 Legislative findings.

"(1) The Legislative Assembly declares that the cultural heritage of Oregon is one of the state's most valuable and important assets; that the public has an interest in the preservation and management of all antiquities, historic and prehistoric ruins, sites, structures, objects, districts, buildings and similar places and things for their scientific and historic information and cultural and economic value; and that the neglect, desecration and destruction of cultural sites, structures, places and objects result in an irreplaceable loss to the public."

"(2) The Legislative Assembly finds that the preservation and rehabilitation of historic resources are of prime importance as a prime attraction for all visitors; that they help attract new industry by being an influence in business relocation decisions; and that rehabilitation projects are labor intensive, with subsequent benefits of payroll, energy savings and are important to the revitalization of deteriorating neighborhoods and downtowns."

"(3) It is, therefore, the purpose of this state to identify, foster, encourage and develop the preservation, management and enhancement of structures, sites and objects of cultural significance within the state in a manner conforming with, but not limited by, the provisions of the National Historic Preservation Act of 1966 (P.L. 89-665; 16 U.S.C. 470)."

6. Oregon State Historic Preservation Officer

ORS 358.612 Duties of State Historic Preservation Officer. The State Historic Preservation Officer:

"(1) Shall conduct or cause to have conducted a comprehensive, statewide survey to identify districts, sites, buildings, structures and objects that are potentially significant in Oregon history, prehistory, architecture, archaeology and culture;"

"(2) Shall prepare and implement a comprehensive statewide historic preservation plan to assist local governments in developing their preservation programs and participate in the national program;"

"(3) Shall maintain a statewide inventory of historic properties;"

"(4) Shall create a mechanism for an Oregon State Register of Historic Properties in which to record significant historic properties with the State Advisory Committee on Historic Preservation developing the criteria for such properties;"

"(5) Shall nominate properties of historical, prehistoric architectural, archaeological and cultural significance to the Oregon State Register of Historic Properties and to the National Register of Historic Places;"

7. Oregon State Advisory Committee on Historic Preservation

ORS 358.622 State Advisory Committee on Historic Preservation.

"(1) There is created a State Advisory Committee on Historic Preservation consisting of not more than nine members appointed by the Governor. At least one-half of the members shall be from among persons recognized as professionals in the areas of history, architectural history, architecture, archaeology, museum management or cultural or ethnic minorities. A representative of the Oregon Native American Indian community shall be appointed."

"(2) The committee:"

"(a) Shall review and make recommendations concerning nominations by the State Historic Preservation Officer of properties to the state and national registers of historic properties and places; . . ."

8. Preservation of Property of Historic Significance

ORS 358.635 Definitions for ORS 358.635 to 358.653.

"(1) "Historic artifacts" means three-dimensional objects including furnishings, art objects and items of personal property which have historic significance. "Historic artifacts" does not include paper, electronic media or other media that are classified as public records."

"(2) "State agency" includes all officers, employees, agencies, boards, committees and commissions of the legislative, executive, administrative and judicial branches of state government."

ORS 358.640 State-owned historic artifacts; catalog; recommendations to state agency; rules

"(1) The State Parks and Recreation Department, in consultation with the Oregon Heritage Commission, shall identify and catalog state-owned historic artifacts."

"(2) The State Parks and Recreation Department shall make recommendations to any state agency or political subdivision that possesses any historic artifact relating to its retention, preservation, maintenance, use or transfer to the custody of any public or private agency or person."

"(3) Any state agency shall obtain approval from the State Parks and Recreation Department prior to transferring, selling, demolishing, substantially altering or otherwise disposing of any historic artifact."

ORS 358.653 Conservation program; leases.

"(1) Any state agency or political subdivision responsible for real property of historic significance in consultation with the State Historic Preservation Officer shall institute a program to conserve the property and assure that such property shall not be inadvertently transferred, sold, demolished, substantially altered or allowed to deteriorate."

"(2) State agencies and political subdivisions may and are encouraged to lease real property of historic significance to private businesses and nonprofit organizations for purposes which are consistent with the nature of the property."

"(3) Where possible, the Oregon Department of Administrative Services shall acquire or lease buildings of historic significance for state use."

"(4) As used in this section, "political subdivision" includes counties, cities, school districts and any other governmental unit within the state not included in ORS 358.635."

9. Archaeological Objects and Sites

ORS 358.905 Definitions for ORS 358.905 to 358.961; interpretation.

(1) As used in ORS 192.005, 192.501 to 192.505, 358.905 to 358.961 and 390.235:

(a) "Archaeological object" means an object that:

        (A) Is at least 75 years old;
        (B) Is part of the physical record of an indigenous or other culture found in the state or waters of the state; and
        (C) Is material remains of past human life or activity that are of archaeological significance including, but not limited to, monuments,
                symbols, tools, facilities, technological by-products and dietary by-products.

(b) "Site of archaeological significance" means:

(A) Any archaeological site on, or eligible for inclusion on, the National Register of Historic Places as determined in writing by the State Historic Preservation Officer; or
(B) Any archaeological site that has been determined significant in writing by an Indian tribe.

(c)

(A) "Archaeological site" means a geographic locality in Oregon, including but not limited to submerged and submersible lands and the bed of the sea within the state's jurisdiction, that contains archaeological objects and the contextual associations of the archaeological objects with:

(i) Each other; or
(ii) Biotic or geological remains or deposits.

(B) Examples of archaeological sites described in subparagraph (A) of this paragraph include but are not limited to shipwrecks, lithic quarries, house pit villages, camps, burials, lithic scatters, homesteads and townsites.

10. Cultural Heritage Policy

ORS 358.910 Policy. The Legislative Assembly hereby declares that:

"(1) Archaeological sites are acknowledged to be a finite, irreplaceable and nonrenewable cultural resource, and are an intrinsic part of the cultural heritage of the people of Oregon. As such, archaeological sites and their contents located on public land are under the stewardship of the people of Oregon to be protected and managed in perpetuity by the state as a public trust."

"(2) The State of Oregon shall preserve and protect the cultural heritage of this state embodied in objects and sites that are of archaeological significance."

ORS 358.920 Prohibited conduct; exception; penalty.

"(1)(a) A person may not excavate, injure, destroy or alter an archaeological site or object or remove an archaeological object located on public or private lands in Oregon unless that activity is authorized by a permit issued under ORS 390.235."

ORS 390.235 Permits and conditions for excavation or removal of archaeological or historical material; rules; criminal penalty.

ORS 390.235(6)As used in this section:

(a) "Private firm" means any legal entity that:

(A) Has as a member of its staff a qualified archaeologist; or
(B) Contracts with a qualified archaeologist who acts as a consultant to the entity and provides the entity with archaeological expertise.

(b) "Qualified archaeologist" means a person who has the following qualifications:

(A) A post-graduate degree in archaeology, anthropology, history, classics or other germane discipline with a specialization in archaeology, or a documented equivalency of such a degree;
(B) Twelve weeks of supervised experience in basic archaeological field research, including both survey and excavation and four weeks of laboratory analysis or curating; and
(C) Has designed and executed an archaeological study, as evidenced by a Master of Arts or Master of Science thesis, or report equivalent in scope and quality, dealing with archaeological field research.

11. Agricultural And Forest Lands

OAR 660-015-0000(3) - Goal 3: Agricultural Lands

Goal 3 defines "agricultural lands." It then requires counties to inventory such lands and to "preserve and maintain" them through farm zoning. Details on the uses allowed in farm zones are found in ORS Chapter 215 and in Oregon Administrative Rules, Chapter 660, Division 33.

. 1975 (effective Jan. 25, 1975)
. 1992 (effective Aug. 7, 1993)
. 1993 (effective March 1, 1994)

OAR 660-015-0000(4) - Goal 4: Forest Lands

This goal defines forest lands and requires counties to inventory them and adopt policies and ordinances that will "conserve forest lands for forest uses."

. 1975 (effective Jan. 25, 1975)
. 1990 (effective Feb. 5, 1990)
. 1993 (effective Aug. 7, 1993)
. 1994 (effective March 1, 1994)

12. Oregon Statewide Goal 5

OAR 660-015-0000(5) - Goal 5: Natural Resources, Scenic And Historic Areas, And Open Spaces

Oregon Statewide Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources, covers more than a dozen natural and cultural resources such as wildlife habitats and wetlands (Appendix E). It establishes a process for each resource to be inventoried and evaluated. If a resource or site is found to be significant, a local government has three policy choices: preserve the resource, allow proposed uses that conflict with it, or strike some sort of a balance between the resource and the uses that would conflict with it.

. Amendments effective August 30, 1996.

13. Oregon Cemeteries

Oregon Commission on Historic Cemeteries

ORS 97.772 Definition of "historic cemetery." For purposes of ORS 97.772 to 97.784, "historic cemetery" means any burial place that contains the remains of one or more persons who died before February 14, 1909.

Note: 97.772 to 97.784 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 97 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

ORS 97.774 Oregon Commission on Historic Cemeteries; terms. (1) There is established within the State Parks and Recreation Department the Oregon Commission on Historic Cemeteries consisting of seven members appointed by the State Parks and Recreation Director.

ORS 97.776 Commission members; nominations. The members of the Oregon Commission on Historic Cemeteries must be citizens of this state who are well informed on the restoration and maintenance of historic cemeteries. The State Parks and Recreation Director shall select members from nominations made by organizations of local historic cemeteries, organizations of nonprofit cemeteries, the State Mortuary and Cemetery Board and statewide cemetery associations. The director shall try to appoint individuals to the commission who represent or are knowledgeable concerning Native American burial places, rural cemeteries, family burial places and metropolitan cemeteries.

ORS 97.780 Duties. The Oregon Commission on Historic Cemeteries shall:

(1) Maintain a listing of all historic cemeteries in this state.

(2) Assist in coordination of restoration, renovation and maintenance of Oregon’s historic cemeteries.

(3) Make recommendations to the State Parks and Recreation Director for projects and funding to help maintain and improve Oregon’s historic cemeteries.

(4) Obtain grant funding and seek legislative appropriations for individual historic cemeteries and groups of historic cemeteries.

(5) Make recommendations to the Legislative Assembly for changes in law that will help protect historic cemeteries as part of Oregon’s heritage.

(6) Assist the director in locating and listing historic cemeteries.

(7) Assist cemeteries listed as historic cemeteries with the commission to rehabilitate and maintain those cemeteries and to promote public education relating to historic cemeteries.

(8) Establish a process to obtain advice from authorities on the subject of the care of old grave markers and graveyards as part of any restoration process.

ORS 97.782 Listing of historic cemeteries; form. A historic cemetery that is not an operating cemetery, as defined in ORS 692.010, shall be listed with the Oregon Commission on Historic Cemeteries. An owner or any other person or association of individuals that maintains such a historic cemetery shall list the historic cemetery with the Oregon Commission on Historic Cemeteries on a form provided by the commission. No fee shall be required from a historic cemetery for listing.

ORS 97.784 Executive secretary; support services. The State Parks and Recreation Department shall provide support services to the Oregon Commission on Historic Cemeteries. One staff person of the department shall be the executive secretary of the commission.

Statutory Ways of Necessity

ORS 376.197 Way of Necessity to Historic Cemeteries

(1) Notwithstanding any other provision of ORS 376.150 to 376.200, a way of necessity for nonmotorized conveyance is established to any parcel that meets the criteria described in ORS

(2)(a) Notwithstanding any other provision of ORS 376.150 to 376.200, a way of necessity is established to a historic cemetery listed in accordance with the provisions of ORS 97.782.

(b) The way of necessity established under paragraph (a) of this subsection shall:

(A) Be designated by the owner of the land over which the way of necessity passes; and

(B) Be accessible, at reasonable times to be designated by the property owner for visitation, maintenance or research purposes, to the owner of the historic cemetery, to descendants of those persons buried in the historic cemetery and to persons interested in historical research. The reasonableness of the times designated by the property owner shall be based on the need of the property owner to make use of the property and the need of the historic cemetery visitors for family visitation, maintenance or research access to the historic cemetery.

Farm Use Assessment

ORS 308A.125 Historic cemeteries within exclusive farm use zones; partition; effect of disqualification. Any land that has received special assessment as exclusive farm use zone farmland, has been used as a cemetery at any time between 1810 to 1950, contains fewer than 50 marked graves, is less than one acre in size and was issued a patent, whether recorded or unrecorded, before 1900 may be partitioned from a parcel that shall continue to qualify for special assessment. The parcel that continues in special assessment and the partitioned cemetery shall not be subject to the provisions of ORS 308A.703 as a result of partitioning under this section. [Formerly 308.400]

14. Oregon Land Use Laws

. ORS 174.109 "Public body" defined. Subject to ORS 174.108, as used in the statutes of this state "public body" means state government bodies, local government bodies and special government bodies.

. ORS Chapter 215 – County Planning; Zoning Housing Codes

. ORS 215.402 to 215.438 – Planning and Zoning Hearings and Review

. ORS 215.438. Transmission towers; location; conditions. The governing body of a county or its designate may allow a transmission tower over 200 feet in height to be established in any zone subject to reasonable conditions imposed by the governing body or its designate.

. ORS 227 — City Planning and Zoning

. ORS 227.160 to 227.186 – Planning and Zoning Hearings and Review

15. Health, Welfare, And Safety

a) Health And Safety Under ORS 197.352(3)(B)

(1) ORS 197.352(3)(B)

ORS 197.352(3)(B) "(B) Restricting or prohibiting activities for the protection of public health and safety, such as fire and building codes, health and sanitation regulations, solid or hazardous waste regulations, and pollution control regulations; . . ." [emphasis added]

(2) Letter of Advice from the Oregon Department of Justice

Letter of Advice from the Oregon Department of Justice to the Oregon Department of Land Conservation and Development, dated February 24, 2005.2 The Oregon Attorney General advised that an owner establishes a valid Measure 37 claim only if the authorized public entity determines that a series of conditions are met, including:

. The public entity has enforced the law.
. The law restricts the use of private real property or any interest therein.
. The law has the effect of reducing the fair market value of the claimant’s property or any interest therein.
. The owner of the property has made a written demand to the public entity.
. The law was enacted after the date the claimant acquired the property.
. The law does not restrict or prohibit activities commonly and historically recognized as public nuisances under common law.
. The law does not restrict or prohibit activities to protect public health and safety [emphasis added]
. The law is not required to comply with federal law.

(3) Oregon Governor’s Questions & Answers

2004 Oregon Ballot Measure 37 Initial Questions & Answers, Question 11 states:3

"The measure says that there is no right to compensation for laws "restricting or prohibiting activities for the protection of public health and safety, such as fire and building codes, health and sanitation regulations, solid or hazardous waste regulations, and pollution control regulations." What does it mean for a law to "protect public health and safety" such that Measure 37 does not require compensation?"

The Governor for the State of Oregon’s answer follows:3

• "Short Answer: Laws restricting or prohibiting activities for the protection of public health and safety are those reasonably related to the achievement of one or both of those goals. Laws reasonably related to one of those goals do not require compensation under Measure 37."

• "The use of the word "and" does not mean that the law must apply to both "health and safety." Instead, compensation under Measure 37 is not required as long as the law is reasonably related to one of those purposes."

• "This exemption likely does not include laws for the protection of economic, social or aesthetics interests (or that aspect of the traditional "police power" that may be described as "general welfare"). However, a law that is reasonably related to public health or to public safety will come within the exception if it has some incidental economic, social or aesthetic benefit."

• "All pollution control laws are included within the exception, but in order to be a "pollution control law" within the meaning of the measure, the law must have a reasonable relationship to pollution control, e.g., the law will not qualify merely because of how it is labeled."

A footnote to the questions and answers follows:

"This Q&A is intended to provide information to State agencies to enable the state to better implement Measure 37; it is not intended to be legal advice to the reader (other than the Letter of Advice from the Attorney General referenced herein, but the conclusions reflected in the answers are based on advice of counsel received."

Letter of Advice from the Oregon Department of Justice to the Oregon Department of Land Conservation and Development, dated February 24, 2005.

In summary, the State of Oregon’s preliminary view is that an owner establishes a valid Measure 37 claim only if the authorized public entity determines that a series of conditions are met, including: "The law does not restrict or prohibit activities to protect public health and safety."

Under Measure 37 there is no right to compensation for laws "restricting or prohibiting activities for the protection of public health and safety. The law is applicable to either health or safety, or both. All laws with a reasonable relationship to pollution control will not qualify for compensation because they are about health.

The State took a narrow view of Measure 37 in its definition of health as suggested it likely does not apply to the broader traditional police power. This "likely" statement will likely be tested in the courts. However, a law that is reasonably related to public health or to public safety will come within the exception if it has some incidental economic, social or aesthetic benefit.

b) Application To Health And Safety Laws Of Josephine County, Oregon

Under Measure 37 there is no right to compensation for laws "restricting or prohibiting activities for the protection of public health and safety. The law is applicable to either health or safety, or both. All laws with a reasonable relationship to pollution control will not qualify for compensation because they are about health.

It appears obvious that four of the Hugo Neighborhood Association, Goal One Coalition, and Rogue Advocates’ normal carrying capacity issues in Josephine County would fit the health and safety standards for waived M37 applications.

1. Carrying Capacity for Ground Water Availability (i.e., available domestic quality and quantity of water - health)

3. Carrying Capacity for Transportation System (i.e., accidents: injury and loss of life - safety)

4. Carrying Capacity for of Avoiding Air Pollution (i.e., air particulates and unhealthy breathing air: sickness and loss of life - health)

5. Carrying Capacity of Extreme Wildfire Hazard (i.e., loss of life and property - health & safety)

All six carrying capacity issues, including the two unknowns (2. Carrying Capacity for Preserving Rural Character, and 6. Carrying Capacity for Being Able to Maintain Infrastructure Approved) will be addressed in the following sections on "Health And Safety Under General Welfare Or The Traditional Police Power" and the "Definition of Health."

c) Health And Safety Under General Welfare Or The Traditional Police Power

Public health, welfare, and safety as normal police powers embodied in the authorities of comprehensive planning and zoning has a long tradition ruled by the U.S. Supreme Court in 1926 (Appendix H).

The town of Euclid, Ohio passed a zoning ordinance that resulted in devaluation of 68 acres of land owned by Ambler Realty Company. The company sued the town, claiming that their land was taken in violation of the Fifth Amendment to the U.S. Constitution, which reads "...nor shall private property be taken for public use, without just compensation." The legality of zoning was determined in a landmark U.S. Supreme Court case originating in Ohio. The Village of Euclid (Ohio) vs. Ambler Realty Company (272 U.S. 365 [1926]) was argued by Alfred Bettman. In 1926 the U.S. Supreme Court ruled in the case, Village of Euclid, Ohio, v. the Ambler Realty Company, and found that zoning is constitutional, provided that it is designed to protect the public health, welfare, and safety. This ruling encouraged local governments to adopt zoning and broaden its scope. Now, more than 80 years later, state and federal courts continue to maintain the constitutionality of zoning. However, landowners continue to challenge the right of a local government to restrict their use of their property. Courts have extensively defined how and to what extent property can be regulated, and they continue to do so.

This view suggests that health and safety under ORS 197.352(3)(B) cannot be easily separated from public health, welfare, and safety as defined by the broader tradition police power. This is especially so when a law that is reasonably related to public health or to public safety has some incidental economic, social or aesthetic benefit.

d) Definition of Health

The definition of health has come a long way since the days when it was limited to the overall condition of an organism (i.e., animals including human beings) at a given time. Most reasonable persons today would have a larger definition that includes the condition of an organism.

• Overall condition of an organism
• Soundness, especially of body or mind; freedom from disease or abnormality.
• A condition of optimal well-being: concerned about the ecological health of the area.

(1) Overall Condition of an Organism.4

The condition of an organism or one of its parts in which it performs its vital functions is normally or properly the state of being sound in body or mind; especially freedom from physical disease and pain – compare disease.

(2) Soundness, Especially of Body or Mind; Freedom from Disease or Abnormality.5

(1) The state of the organism when it functions optimally without evidence of disease or abnormality.

(2) A state of dynamic balance in which an individual's or a group's capacity to cope with all the circumstances of living is at an optimal level.

(3) A state characterized by anatomic, physiologic, and psychological integrity, ability to perform personally valued family, work, and community roles; ability to deal with physical, biologic, psychological, and social stress; a feeling of well-being, and freedom from the risk of disease and untimely death.

(3) Well Being.6

Popular use of the term ‘well-being’ usually relates to health. A doctor's surgery may run a ‘Women's Well-being Clinic’, for example. Philosophical use is broader, but related, and amounts to the notion of how well a person's life is going for that person. A person's well-being is what is ‘good for’ them. Health, then, might be said to be a constituent of my well-being, but it is not plausibly taken to be all that matters for my well-being. One correlative term worth noting here is ‘self-interest’: my self-interest is what is in the interest of myself, and not others.

The philosophical use of the term also tends to encompass the ‘negative’ aspects of how a person's life goes for them. So we may speak of the well-being of someone who is, and will remain in, the most terrible agony: their well-being is negative, and such that their life is worse for them than no life at all. The same is true of closely allied terms, such as ‘welfare’, which covers how a person is faring as a whole, whether well or badly, or ‘happiness’, which can be understood — as it was by the classical utilitarians from Jeremy Bentham onwards, for example — to be the balance between good and bad things in a person's life. But note that philosophers also use such terms in the more standard ‘positive’ way, speaking of ‘ill-being’, ‘ill-faring’, or, of course, ‘unhappiness’ to capture the negative aspects of individuals' lives.

‘Happiness’ is often used, in ordinary life, to refer to a short-lived state of a person, frequently a feeling of contentment: ‘You look happy today’; ‘I'm very happy for you’. Philosophically, its scope is more often wider, encompassing a whole life. And in philosophy it is possible to speak of the happiness of a person's life, or of their happy life, even if that person was in fact usually pretty miserable. The point is that some good things in their life made it a happy one, even though they lacked contentment.

When discussing the notion of what makes life good for the individual living that life, it is preferable to use the term ‘well-being’ instead of ‘happiness’. For we want at least to allow conceptual space for the possibility that, for example, the life of a plant may be ‘good for’ that plant. And speaking of the happiness of a plant would be stretching language too far. (An alternative here might be ‘flourishing’, though this might be taken to bias the analysis of human well-being in the direction of some kind of natural teleology.) In that respect, the Greek word commonly translated ‘happiness’ (eudaimonia) might be thought to be superior. But, in fact, eudaimonia seems not only to have been restricted to conscious beings, but to human beings: animals cannot be eudaimon. This is because eudaimonia suggests that the gods, or fortune, have favoured one, and the idea that the gods could care about non-humans would not have occurred to most Greeks.

It is occasionally claimed that certain ancient ethical theories, such as Aristotle's, result in the collapse of the very notion of well-being. On Aristotle's view, if you are my friend, then my well-being is closely bound up with yours. It might be tempting, then, to say that ‘your’ well-being is ‘part’ of mine, in which case the distinction between what is good for me and what is good for others has broken down. But this temptation should be resisted. Your well-being concerns how well your life goes for you, and we can allow that my well-being depends on yours without introducing the confusing notion that my well-being is constituted by yours. There are signs in Aristotelian thought of an expansion of the subject or owner of well-being. A friend is ‘another self’, so that what benefits my friend benefits me. But this should be taken either as a metaphorical expression of the dependence claim, or as an identity claim which does not threaten the notion of well-being: if you really are the same person as I am, then of course what is good for you will be what is good for me, since there is no longer any metaphysically significant distinction between you and me.

Well-being is a kind of value, sometimes called ‘prudential value’, to be distinguished from, for example, aesthetic value or moral value. What marks it out is the notion of ‘good for’. The serenity of a Vermeer painting, for example, is a kind of goodness, but it is not ‘good for’ the painting. It may be good for us to contemplate such serenity, but contemplating serenity is not the same as the serenity itself. Likewise, my giving money to a development charity may have moral value, that is, be morally good. And the effects of my donation may be good for others. But it remains an open question whether my being morally good is good for me; and, if it is, its being good for me is still conceptually distinct from its being morally good.

(4) Stress

Life can be stressful. We all face different challenges and obstacles, and sometimes the pressure is hard to handle. When we feel overwhelmed, under the gun, or unsure of how to meet the demands placed on us, we experience stress. In small doses, stress can be a good thing. It can give you the push you need, motivating you to do your best and to stay focused and alert. Stress is what keeps you on your toes during a presentation at work or drives you to study for your midterm when you'd rather be watching TV. But when the going gets too tough and life's demands exceed your ability to cope, stress becomes a threat to both your physical and emotional well-being.

Stress is a psychological and physiological response to events that upset our personal balance in some way. These events or demands are known as stressors. We usually think of stressors as being negative, such as an exhausting work schedule or a rocky relationship. However, anything that forces us to adjust can be a stressor. This includes positive events such as getting married or receiving a promotion. Regardless of whether an event is good or bad, if the changes it brings strain our coping skills and adaptive resources, the end result is the subjective feeling of stress and the body's biological stress response.

According to the American Psychological Association, fifty-four percent of Americans are concerned about the level of stress in their everyday lives.

The potential causes of stress are numerous. Your stress may be linked to outside factors such as the state of the world, the environment in which you live or work, or your family.

Furthermore, the causes of stress are highly individual. What you consider stressful depends on many factors, including your personality, general outlook on life, problem-solving abilities, and social support system.

Whether or not the source of stress causes significant emotional and physical symptoms depends in part on the nature of the stressor itself. Stressors that involve central aspects of your life or that persist for extended periods of time are more likely to result in severe distress and disruption of functioning. Furthermore, the more stressful situations or life changes you're dealing with at one time, the more intense the symptoms of stress.

Stress affects the mind, body, and behavior in many ways. The specific signs and symptoms of stress vary from person to person, but all have the potential to harm your health, emotional well-being, and relationships with others.

(5) Protecting Historic Resources As Part Of Health

The underlying reason for undertaking a historic resource survey to identify a community’s historic resources is the growing recognition, by citizens and governments at all levels, that such resources have value and should be retained as functional parts of modern life. The historic resources of a community or neighborhood give it its special character and cultural depth. Some historic resources contain information whose study can provide unique insights into a community’s past, and help answer broad questions about history and prehistory. In more utilitarian terms, each historic building and structure represents an investment that should not be discarded lightly; maintaining and/or rehabilitating older buildings and neighborhoods can mean savings, in energy, time, money and raw materials.

Land use decisions that do not consider historic resources and/or that such resources do not have value on par with other values, such as economic development, is of a concern to reasonable persons wishing to retain these resources as functional parts of modern life. They can become stressful to those who have concerns about the health of their neighborhoods to the point of damaging their well-being and health. In some cases this stress of the mind can result in abnormality.

C. Josephine County Comprehensive Plan: Historic Resources

An overview of Josephine County Comprehensive Plan (JCCP) Goal 7, Preserve Valuable Limited Resources, Unique Natural Areas and Historic Features, requires:

"Inventories of the resources of Josephine County indicate that special features, such as

archaeologic or historic sites, and limited resources, such as mineral deposits and sensitive wildlife habitat, may be endangered unless protected from the encroachment of incompatible land uses. Because of the importance of these various special resources to the economic, cultural and aesthetic well-being of County residents, comprehensive planning necessitates careful consideration of the trade-offs between land use alternatives." [Appendix D]

Policy 1 of of JCCP Goal 7 requires:

"1. The Board of County Commissioners shall encourage the identification and preservation of archaeological sites, prior to their development in Josephine County. When sites are identified by a qualified archaeologist, Josephine County will evaluate archaeological sites for their significance. If found to be significant, the County will apply the provisions of the Goal 5 rule, as applied in Chapter 14 of the Zoning Ordinance."

D. Josephine County Rural Land Development Code (RLDC): Historic Resources

1. Historic or Archeology Sites: RLDC 50.050 - Tentative Plan Review Standards & Criteria

Tentative plan approvals for subdivisions, partitions, replats and planned unit development subdivisions shall be reviewed against the following standards and criteria:

A. Standards. The following standards shall be reviewed for compliance: See Appendix E.

B. Criteria. The following criteria shall be reviewed for compliance: See Appendix E.

4. The land division is designed to adequately mitigate special environmental or social conditions (watershed, wetland, wildlife or plant habitat, or historic or archeology sites, etc.).

2. Archeological Resources and Historic Buildings and Sites: RLDC 93: Appendix E.

1. Parker, Patricia L. Revised 1985. Guidelines For Local Surveys: A Basis For Preservation Planning. National Register Bulletin. USDI, National Park Service.

2. Office of the Oregon Attorney General. February 24, 2005. Letter of Advice from the Oregon Department of Justice to the Oregon Department of Land Conservation and Development, dated February 24, 2005. Reference Oregon Ballot Measure 37. http://www.lcd.state.or.us/LCD/MEASURE37/legal_information.shtml#

Communications_from_Oregon_Department_of_Justice. Salem, OR.

3. Kulongoski, Theodore, R. Governor of Oregon. February 28, 2005. 2004 Oregon Ballot Measure 37 Initial Questions & Answers. http://www.lcd.state.or.us/LCD/MEASURE37/legal_information.shtml#Communications _from_Oregon_Department_of_Justice. Salem, OR.

4. Merriam-Webster, Inc.. 2006. Merriam-Webster's Medical Desk Dictionary. Definition of Health. 3rd Edition.

5. Lippincott Williams & Wilkins. 2006. Stedman's Medical Dictionary. Definition of Health. 28th Edition.

6. Standford Encyclopedia of Philosophy. First published Tue Nov 6, 2001; substantive revision Wed Nov 2, 2005. Well-Being. http://plato.stanford.edu/entries/well-being/.

7. Ellen Jaffe–Gill, M.A., Melinda Smith, M.A., Lisa Flores Dumke, M.A., Heather Larson, and Jeanne Segal, Ph.D. contributed to this article. Last modified on: 2007. Stress: Signs, Symptoms, Causes, and Effects. Helpguide, http://www.helpguide.org/mental/stress_signs.htm.

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