Reserves Lives but it is Back to the Drawing Board, Particularly for Washington County
In a mammoth 126-page decision, complete with a table of contents, the Oregon Court of Appeals reversed and remanded decisions made by LCDC, Metro and the three urban counties of the Portland region designating urban and rural reserves establishing priorities for regional growth over the next 50 years. Twenty-two parties challenged the decision, presenting arguments that were characterized by the court as ranging from “the sublime to the arcane to the mundane.” The court rejected or did not reach many of these arguments, but concluded, among other things: (1) LCDC’s interpretations of the reserve legislation were sound and entitled to deference; but (2) some local governments, particularly Washington County misapplied the rural reserve factors. The decision now goes back to LCDC with instructions that it remand the entire reserves decision to Metro.
The reserves process requires that Metro and the counties designate urban and rural reserves based on a series of “factors” for sufficient land to accommodate population and employment growth for the next 50 years and to achieve a balance that “best achieves” certain values. Challengers raised a number of arguments relating to the extent to which LCDC must “consider” and “apply” the various factors and whether the “areas” designated for consideration must be parcel-specific. The court affirmed LCDC’s approach on all points. The court agreed with LCDC that the reserves factors must be applied but they do not serve as independent approval criteria that must be separately satisfied. “Consideration,” according to the court, requires application of the factors that must then be “weighed, balanced” and coupled with a “meaningful explanation” of why the particular designation is appropriate. Some challengers argued that the terms “concurrently and in coordination” required application of both urban and rural reserve factors to each area. LCDC argued that these terms refer to the “overall process of designating reserves” and the court affirmed, agreeing that LCDC’s interpretation was plausible.
LCDC also correctly determined that “areas” for consideration can be larger individual properties and do not extend for the entire region. Rather than finding a definitive definition of the term, the inquiry involves an evaluation of whether the local government adequately considered the factors in making the designation.
The court agreed with LCDC that the term “best achieves” is a qualitative rather than a quantitative standard that applies “in its entirety” to the overall decision and need not be applied to decisions regarding particular properties or areas. “Best achieves” does not require a ranking or application of a strict hierarchy but rather allows for a range of permissible designations.
Turning to Washington County’s decision, designating rural reserves requires consideration of a number of factors such as soil quality, whether the land has a history of sustaining long-term agricultural activities, and whether the lands are threatened by urbanization. Particularly relevant to this appeal were two factors: land capability in terms of soils and availability of “water where needed” and land suitability; (i.e. whether, given adjacent land patterns, ownership, agricultural infrastructure, etc., the land could support farm activities over the long term).
Finding that much of its candidate land for urbanization satisfied these factors, and presumably under pressure to find even more urbanizable land, Washington County created some additional “inexact surrogates” or what the court labeled “pseudo factors” with which to distinguish such lands. Washington County relied on a largely out-of-date and inaccurate 1982 Huddleston soil productivity report emphasizing “future water availability” as a significant limiting factor for excluding Foundation Agricultural land (which was more likely to be excluded from urbanization), over a more-recently conducted Oregon Department of Agriculture (ODA) report evaluating the suitability of soils. Whether land is irrigated could not be used as a factor when rating land suitability for rural reserves when the reserve factor provides for consideration of “water where needed.”
The court went on to find that Washington County improperly reduced its analysis of suitability of the land for agricultural uses given the uses going on around it to a single component – whether the farmland was contained within “large blocks.” “Large blocks,” explained the court, refers to the functional relationship of agricultural land to other agricultural or resource lands and the identification of large, intact agricultural areas. “Large blocks” may be a component of determining land suitability but it cannot take the place of a suitability analysis.
Not to let Clackamas and Multnomah Counties off the hook, the court found two additional bases for remand. With regard to the Stafford area, Metro and Clackamas County failed to connect the dots when designating Stafford as an urban reserve given a regional transportation plan conclusion that all of the transportation facilities serving Stafford will be failing and the contrary conclusion that the system will improve by 2060. Finally, keying back to its conclusion that “consideration” of the factors requires their application to an “area,” Multnomah County erred by failing to explain why a property south of Skyline Boulevard, known as Area 9D, was included as part of a larger area for consideration as a rural reserve.
Leaving the larger policy questions over how quickly or painlessly this situation can be remedied to the politicians, this decision provides some important lessons. First, even though the local and regional decisions are based on mere factors, they require articulation and consideration. Washington County cannot avoid designating Foundation Farmlands as rural reserves when these lands contain the very characteristics that make them “suitable” and “capable” of supporting agricultural uses. Washington County overreached. It was caught trying to reverse-engineer a system when it was repeatedly warned of the consequences. All attempts at finding a reasonable settlement fell on deaf ears. Second, there is a lesson here for those of us who draft rules, codes, and laws. Using discretionary terms like “consider,” “factors,” “areas” and “balance” requires a high level of explanation and articulation. We know now that although using such squishy words may make decision-making more politically palatable, that kind of drafting can also take just as long as a more rigid prioritization scheme.
Carrie Richter represented Save Helvetia, a coalition of farmers, business owners, concerned citizens, neighbors, and residents working to protect the Helvetia community and its neighboring agricultural lands.
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