Story shamelessly lifted from TrainOrders.com on a backyard mini-gauge RR in Lane County, Oregon:

Backyard railroad's website:
http://www.peak.org/~kmr3/M&LKRailroad/

Newspaper article on bureaucrats' responses:
http://www.registerguard.com/csp/cms/si ... id=4&fid=1

From a western point of view… (for 4 generations).

There is an ongoing battle between those who view the west as wide open, where the individual rules, and an ever increasing effort to regulate development.

On one extreme some claim its their land and they can do with it what they like. In a wide open world this was acceptable.

California is now the most populated state in the Union, Oregon is the 27th highest population… We are no longer the unpopulated frontier. We now need permits for grading, in some cases for fencing, in addition to more traditional development. You can’t log without a permit…

Against this background a backyard small gauge railroad is a gray area… It’s more than a model railroad or landscaping, but less than a housing development. I note that one of the county commissioners is both adamant about regulation but has also volunteered on the line, and donated to the defense fund… It is a frustrating environment for the hobbyist. But we probably need the reasonable rules.

It’s a brave new world.

Randy, your post sounded like it was written by a bureaucrat. Here in the not so ambiguous midwest, where private property rights still have meaning, this issue is cut and dried. This is a clear violation of an individual's private property rights, and unneccessary harrassment of a landowner and citizen.

We as a nation have collectively allowed our elected officials to continue to erode our property rights, to the point where we must obtain permission to make any alteration on our property. The line was crossed a long tme ago between reasonable building standards to ensure safe construction to nitpicking how, when and where a landowner can reroof his house, apply new siding or remodel a kitchen.

A property line no longer means anything to these people, and we as a populace have given them that power.

Most of the rural south is fairly open to individual actions in such small concerns as personal backyard model railroads. Probably nobody would even notice you had one. Damming a creek or doing other actions that could potentially create problems for your neighbors is another thing, and would probably engender some bureaucratic oversight. I live in a large metropolitan area and oversight isn't too intrusive for small things like landscaping or repair of stuff in kind. Power company easements seem to be about the most obtrusive difficulty to be encountered for things like tool sheds and carports.

Has common sense taken a holiday?

dave

From a Professional Engineer (civil) in over regulated New Jersey;

If this were in NJ, this guy would be hosed. I took a look at the photos. Several large bridges have been built over streams and creeks. My first question would be, who designed them? Was it a Professional Engineer? If (actually when) there is a flood, are the bridges built above the flood line? Will they snag debris in the creek, thereby creating a dam, which could cause additional flooding upstream and downstream of the structure? These are safety issues.

Other photos clearly show the railine running next to the creek, within what I would consider the flood plain. The raised right of way effectively cuts off a portion of the area the creek would flood in to. How does that disrupt the flow? Does it effect any other property owner upstream, downstream, on the other side of the creek?

He has disturbed quite a bit of land in the construction of this rail line. Its not a garden railroad.

My suggestion to the property owner would be to find a local professional engineer (maybe he / she is even a railfan) and see if he will work on this at a lower fee or for free.

Chris Vitz, PE

Common sense is not on a holiday, it is dead. A while back I heard a good (and very funny) bit on a radio show that was an obituary for "Common Sense". The gist of it was that "Common Sense" had been murdered by "Political Correctness" and "My Rights". Maybe "The Public Welfare" was part of the conspiracy also.

We can probably all think of examples of the absence of common sense in the legislative, regulatory, and policy areas. Remember what they say the "Road to Hell" is paved with............................

The effort to make the RR owner get permits is not entirely surprising in Oregon. I completed a new home 3 1/2 years ago at a cost of about $160k. The permits alone were over $12K. I've been told they are even higher now. If I were to build today permits alone would amount to close to $20K.

If my property had been closer to a main artery, I would have had to submit a map of the property showing locations of trees over 6" in diameter and argue how they had to come out to make room for the house, or conversely, tell Deschutes Co. autorities why I can't build elsewhere and save the tree. As it happens these are Lodgepole Pine, a weak species which doesn't have a very long life span. I also would've had to specify the roof color, making certain it blends into the surroundings.

I hope he is able to save the RR, but this is not surprising at all to me. It is common knowledge in Oregon that you better get your permits for any and all construction, whatever the cost. If you don't, you'll regret it later.

dan

Mr. Steam, much as I may actually agree with your general points, your comments are completely laughable and incredulous to anyone who has attempted to do anything property-wise--buy a house or condo, add a rock garden, expand a house, etc.--in the Northeast.

Unless you're in one of the few areas/counties left that God and bureaucracy forgot about and your mail delivery is once a week by carrier pigeon, fees, permits, inspections, and other such neo-extortionary restrictions are the norm. And heaven help you if you end up in a new development with a "neighborhood" or condo association, able and constantly willing to impose even more Draconian restrictions on your property rights. Certainly, I understand, say, not letting someone build yet another McMansion on a barrier island dune, or demanding minimal engineerring standards of a house built of hay bales, but many of the rules and restrictions in *some* jurisdictions have effectively turned into "class warfare" (restrictions on the placement of mobile homes, for example) and subsidy of a government bureaucracy.

It's matters like these that have greatly exacerbated the "red-state-versus-blue-state" divide over the past several decades. Those who care about property rights, privacy, etc. eventually relocate to places where they are still, to their eyes, "respected,"while those left behind eventually acclimate to such an environment and "culture".

Rail Preservation content? Ummmmmmm......... let me think of someone not allowed to live in a railroad station..........

From your friendly moderator, let's be careful to keep this relaited to railroad preservation, not a rant on zoning, land use rules, red and blue states or property rights...

Thanks

We can all appreciate reasonable and we know that bureacrats (trust me, I'm in the belly of the beast) are intrinsically "reasonable". Of course, when they "occasionally" make a mistake, we can rely on the pristine pillars of justice in black robes to safeguard our rights.

Oh wait a minute, that sort got blown all to hell with that Kelo vs.New London decision.

Sorry Randy, reasonable is like beauty, its in the eye of the beholder.

Here in Arizona, the county can establish land use regulations. Generally, that power is reserved to control the operation of commercial development in residential or undeveloped areas. However, the county has wide jurisdiction over non-commercial land use as well. For example, you can't just decide to land a helicopter on your property (regardless of whether it's a 1,000+ acre ranch or a suburban lot). One of our neighbors at the residential air park my parents reside at tried that. The county informed him that helicopters may only be operated from a designated helipad and that each violation would cost him $100. $100 to our neighbor is pocket change. Only thing that changed his tune was when the county threatened to have the sheriff impound his helicopter. Railroads of any type could be placed under a similar regulation.

As for the engineering aspect, that may be the killer here. Certainly the state has some regulation regarding amusement rides. Many regulations require that the design be made or approved by a licensed engineer. Unless the person who designed the trestles/bridges was licensed, the state might be able to force the railroad to stop operations until that matter can be addressed. As for finding a local professional engineer to work on that, I wish them luck. If the market for engineers there in OR is like it is here in AZ, you won't find one unless they find you. Here we've got such a shortage that the old guys who want to retire can't-not enough new bodies coming in the door to let them go.

First off, there are two things at work here: land use law, and building code. Even the newspaper article confused the two.

On land use, the state department handling land use issues slapped him with a fine for building it without going through the proper channels. It then reduced the fine in recognition of reclamation work he did on the creek on the property. He now owes $500 in fines to the agency. It should also be noted that the agency is *not* demanding he tear it down.

That's state law. You don't like it, fine. But it's the law. He owes the money. Period. Full stop.

Then there's the building code. It exists for a reason. It's called public safety. What happens if one of this guy's bridges collapses under the weight of his train? Is there any kind of fire suppression plan to prevent a fire going out of control and starting a wildfire?

Naysay if you wish, but building code developed over generations from hard-won experiences to prevent dangerous situations from occurring again. Most contractors will grumble about it but they are also glad it's there. Public safety is a serious thing. Randy is right. When people lived very far from each other it didn't matter if you wanted to build an 8 story wooden tribute to Mickey Mouse. But if you're building that next to me, I have the right to know it won't catch fire or fall on my house.

Superheater is right about "reasonableness" and its squishy, but that shouldn't be at play here. Code is staight-forward. It's written in "clear and objective" language that relies on measurements and numbers. He either trips past it, or he doesn't. If he does, he needs a permit.

The only place where reasonableness enters into it is in what to do to rectify the situation. Before we all jump down the county's throat, lets give them a chance to try and resolve it.

Being reasonable cuts two ways. From my perspective as both a rail preservationist and a government employee, I would agree that the government is being quite reasonable in this case. In the case of this "railway", I would submit that it would be much more beneficial for them to come up with the money to pay the reduced fine and go on from there. I can't imagine that this is reflecting well on their organization locally and sticking to their guns might not be good for the railway in the long term. The state's trying to be reasonable while doing their job at the same time. If this isn't agreeably settled and problems arise in the future, the state might really come down hard.

Land use law and building codes are both plainly spelled out and for good reason. Both have roots in lessons learned the hard way and were developed to address future concerns. Public safety is no joke when you admit members of the general public onto your grounds. For those of us who transport members of the general public in exchange for monetary compensation (regardless of whether we classify it as admission with a train ride or otherwise), we enter into a contract with our guests. In exchange for their financial contribution, we assume a duty to ensure that the levels of risk that they are presented while visiting our grounds is maintained at a reasonable level. You breach that contract at your own peril. In today's litigious society, one good jury damage award could put most museum or tourist railways out of business.

"Being reasonable cuts two ways."

Alan, I respectfully submit that as a government official, your duties and available discretion are fully circumscribed by the enabling legislation (i.e., you have no powers not granted to you by the people through their representatives), assuming such legislation was lawfully enacted in the first place, and is being interpreted consistent with the state and federal constitutions. In the present discussion, there's been no real discussion of the extent of the asserted powers in the locality in question, whatever the case might be, for example, in New Jersey.

Within the last few years, it's been my pleasure as an attorney in private practice to defend clients against a variety of government officials demanding "reasonableness," such as a local zoning official who acted on his firm belief that he had the blanket right to "inspect" private property (in Constitutional terms, to conduct a warrantless search); local elected officials who, after having done their damage, were discovered to have destroyed the records thereof; and my perennial favorite, municipal land use commissions who grab whatever they can, demanding illegal "exactions" and expecting applicants to consent to such demands simply because they are caught over a barrel. In all of these contexts, the word "reasonable" frequently spills off these petty tyrants' tongues, as if a citizen's expectation that government agents confine their actions to lawful ones is somehow itself unreasonable.

It is perhaps revealing that as a government official, you say (of the situation in question) that you "can't imagine that this is reflecting well on their organization locally." On the contrary, I tend to find that the "outing" of those who would abridge the fundamental rights of others, including private property rights, is usually viewed pretty favorably among those who value such things, and less so only by those ignorant of their rights. Among audiences of the latter type, I admit that sometimes the only favorable reflection I can hope for is that the newspaper spelled my name correctly.

I agree with your synopsis of duties owed to invitees. Of course, whether that is the legal status of a railroad museum ticketholder may depend on a variety of things, including things stated on the ticket. In any event, unless and until adherence to any official's interpretation of codes and regulations is held to be an absolute bar on tort liability, I'd suggest that well-documented self-regulation is more important than kowtowing to authority for no better reason than if one does not do so, "the state might really come down hard." I do suggest that individuals and organizations act within the law, which might be described as part of the "contract" we all enter into when we empower our government officials to do nothing less and nothing more.

GJC

George has a good point -- we often see citizens put in great misery when government officials, no matter well intentioned, venture beyond their mandate strictly authorized in law - and call it reasonable.

For instance the events of 1-31-07. A company used improvised LED signs to advertise an upcoming movie in 10 cities. One city saw this gadget ( batteries and lights) and panicked with a full scale antiterror response. The city didn't learn, they did it again 8 months later upon Star Simpson, a 19 year old MIT student, taking her down at gunpoint for wearing a homemade LED sign on her jacket. To make it worse, the government refused to apologize but in fact demanded an apology as a condition for dropping charges. Of planting a "Hoax Device" - defined by law as something that would be believed to be a terror device by a reasonable person. Note the built-in assumption that the government is reasonable.

A lot of folks run their diesel cars on veggie oil, biodiesel or scrounged fryer oil. But a few have been caught in crushing catch-22's for not paying highway road taxes to agencies who provide no means for a citizen to pay them.

These are the same problem as the the garden railway. The activities are unusual -- but that's all they are. We have passed the point at which the government will say "Our mishandling is your fault, because you chose to be weird." Now our challenge as a free society is to make sure they don't get away with it.

Sure, it would be nice if the government could come around and give an expert, professional review at this garden railway. But the government doesn't have the technical competence. That's part of the problem with getting the government to handle "unusual" correctly. They can try, but it usually makes a nasty mess. Anyone who's built a carbarn knows this - what's the first thing they do? Demand exits, parking etc. appropriate to a DANCE HALL that size. Which is "not even wrong".

Like Niemöller said, "First they came for the gadget geeks, and nobody cared because it was post-9/11. Then they came for the biodiesel brewers..." We need to care because it's a matter of time before our ox gets gored. We need to push back on this sort of thing, gently or emphatically. While we still can.