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The Legislature Makes Significant Structural Changes to the Oregon Land Use Program

By Edward J. Sullivan and Carrie A. Richter

While much of the attention on land use legislation in the 2013 legislature focused upon wineries, employment lands in Hillsboro and budgets, that body also made significant changes to the structure of the Oregon land use program to respond to concerns of its friends and critics.

First, there was the vexed issue of population forecasting and allocations.  These activities are important because they are often the basis for grants of state and federal funds.  Originally, Metro and counties (outside the Metro region) were tasked with both of these responsibilities.  While Metro has dealt with these issues often (because it must, by legislative direction, review its urban growth boundary and underlying population forecasts every five years), counties have had a more difficult time, as there are levels of interest in such forecasts, differing approaches to forecasting and an aversion of county governing bodies to conflict when cities within that county quarrel over their share of the overall county population.  Cities sometimes hired consultants to increase their population projects (and their funds).  The result all too often was that county governing bodies declined to deal with these issues.  Even with some more recent legislative changes, the consensus was that this important cog in the wheel of planning was broken.

The legislature, on the advice of the Department of Land Conservation and Development (“DLCD”) and its advisory committee passed HB 2253, which left the Metro population forecasting role in place, but designated the Portland State University Population Research Center as the agency that would undertake both population forecasts and allocations for all other jurisdictions.  HB 2253 directs the Center to provide notice of these matters, as well as its methodologies and supporting data, so that could be made known.  However, the legislation also purported to make those decisions final and immune from further review, an unlikely result.

Another problem plaguing the land use program was the mortality rate of urban growth boundary changes, whether affecting a few properties or the result of an overall revision of a city plan.  Cases involving Metro and the Cities of Woodburn and McMinnville had too often found the results of years of work and local compromise undone when Land Use Board of Appeals (LUBA) or a court found the rationale failed to meet state statutes, goals and rules.  There was tremendous interest in finding a simpler, legally viable and fact-based way of making these changes.

In response to the advice of DLCD and an advisory committee, the legislature passed HB 2254, which also applies outside the Portland Metro area,  to require the Land Conservation and Development Commission (“LCDC”) to provide for two simpler but optional processes by rule – one applicable to cities of under 10,000 population and another to cities over 10,000 population.  The processes are similar, but not identical.  LCDC is required to design rules that are fact-based so that sufficient buildable lands for needed housing and employment opportunities may be provided over a 14-year period; ensure that cities will not become less efficient in its use of land that urban population per square mile will continue to increase; and the rate of conversion of agricultural and forest lands to urban uses will not increase over time.  A host of considerations and factors are listed to be applied and provision is made against “bait and switch” of lands added to the boundary for one use (such as employment) being diverted to another and for lands not urbanized in the planning period.

The legislation also deals with another significant planning problem.  Special districts often supply one or more urban services (such as water, sewer, firefighting and the like), generally to urban areas outside cities.  State policy has long been to coordinate these services with those of cities, a policy that for many reasons has never been carried out.  HB 2254 adds both incentives and penalties to advance this policy of coordination.  For example, if a service district refuses to negotiate an agreement with a city, the city may remove territory that is within its urban growth boundary and the city, from the district.  A mediation and arbitration process for dispute resolution of conflicts is also provided.

Other important provisions deal with the priority of lands to be included within an urban growth boundary and for review by the Land Use Board of Appeals which is decidedly friendlier to cities and promises to result in more fact-based urban growth boundary changes.

Time will tell whether the concerns of critics regarding population forecasts and allocations and urban growth boundary changes will be met by this legislation – LCDC has yet to adopt rules to implement this new direction – but there has been no shortage of thought and effort applied to meet these problems.

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