In 2007, when the legislature established a system for designating urban and rural reserves, many observers saw the reserve process as a panacea to deal with the contentious process of changing the Portland Metro urban growth boundary (UGB). Under the urban reserve process, identifying urban land needs based on a 50-year projection rather than the historic 6-year cycle for changing the UGB, lands designated urban reserve would stand in the queue prioritized for inclusion in the UGB when expansion was appropriate. Similarly, land within any rural reserve was off-limits for consideration within the UGB within that same 50-year planning period.
There were two failed efforts to expand Woodburn’s Urban Growth Boundary (UGB), initially begun in 2005 which would allow the city to plan, annex and develop lands around the existing city limits. UGB expansion in Oregon requires evaluation of two sets of factors: one relating to the need for expansion for the 20-year timeframe required by law, and the other relating to the location of the revised UGB. Based on city population projections, additional lands for residential use were anticipated. The rub was over the total amount of lands needed for future residential, commercial, industrial, and employment uses, as well as the location of the revised UGB.
Scappoose, Oregon, located right off Highway 30, has only 6,800 residents. Its motto is “A place to grow.” This expected growth was the subject of a recent court of appeals case, Zimmerman v LCDC, 274 Or App 512 (2015). In 2011, the city enacted an ordinance amending its comprehensive plan, hoping to add more land to its UGB designating much of it for industrial and commercial uses, particularly for airport employment uses. To expand a UGB pursuant a Goal 14, a local government must establish that land is needed to further future economic opportunities; determining such need requires compliance with Goal 9 and implementing administrative rules. In order to justify such expansion, a local government must compare the demand for industrial and employment lands against the existing supply, through a review of the “best available” information considering national, regional or local trends, site characteristics of expected uses and development potential. OAR 660-009-0015.
Following several LUBA and appellate court decisions that invalidated urban growth boundary (UGB) amendments in McMinnville and Woodburn (twice), the 2013 Oregon legislature enacted HB 2254, legislation that purported to “simplify” the UGB amendment process by creating an alternate path for local governments outside the Portland Metro Area. However, LCDC’s efforts at implementing that legislation to date make manifest the difference between aspiring to simplicity and achieving it.
The train of events from the release of the Oregon Court of Appeals decision in the Metro urban and rural reserves case to the resolution of that case in the Oregon legislature has been an interesting one to follow. The Court of Appeals remanded a decision that followed four years of public hearings and actions to establish urban and rural reserves in the Portland area. Following various stages of shock, denial and anger, the development community, Metro and Portland area local governments changed their positions from one that this was strictly a regional problem with which the legislature should not enter, to one in which such entry was invited.
In enacting the resolution of this case in the so-called “Grand Bargain,” the legislature imposed a solution in one particularly contested part of the region – Washington County – rather than to have the reserves decision reconsidered as the court had commanded. Other deficiencies in Multnomah and Clackamas Counties were left for the Land Conservation and Development (LCDC), those counties and the region to sort out. Within days, the legislature expanded the Urban Growth Boundary (UGB), as well as the urban and rural reserves in Washington County and declared victory to the applause of much of the development and business community and local governments.
Expanding the UGB is important, as urban type development is allowed only within that boundary and significantly affects the price of real estate. Similarly, placing land in an urban reserve presumptively puts that land first in line for addition to the existing UGB for urban development over a 50-year period. And placing land in a rural reserve makes it likely that such land will not urbanize over the next 50 years.
The legislature, local and regional governments, and public interest groups characterized these actions as nothing more than a mediated settlement with the parties to the lawsuit resulting in an outcome that was consistent with initial predictions. This does not change the fact that it was the legislators, rather than local governments, drawing colored lines on a map. Often these supplicants and the legislative leaders will assert that the UGB and reserves processes are just too complex and need to be simplified. Yet these parties might consider their own roles in shaping these processes. Instead of providing a checklist of objective requirements for expanding the UGB, the legislature left in place a system of unquantified “factors” to apply so as to give decision-makers the “flexibility” to reach whatever decision they wished. The legislature and LCDC used a similar system of applying “factors” to the reserves process for the same reason.
In addition, instead of allowing the Land Use Board of Appeals (LUBA) to review these decisions, the legislature specifically directed that review to LCDC, a government-friendly forum that did not work as hard to consider those pesky legal questions that occur in making land use decisions. Both left it to the Court of Appeals to weigh the reserves decision against the criteria and were duly shocked and appalled with the result. It is far easier to blame the process and other participants than to fess up to admitting to the source of the complexities in that process.
In reality, there was an attempt to game the process (through an assertion of “flexibility” which was designed to place a patina of respectability on the result) to justify putting certain lands over other lands into urban reserves than was justified, regardless of what the law said, because some of the participants wanted that result.
However the real problem created by the “Grand Bargain” is the precedent it sets. While both the UGB and reserves processes are difficult (and are supposed to be difficult as the decisions are significant and long-lasting), on what basis can the legislature turn down similar requests for imposition of a legislative solution in Woodburn, Bend or McMinnville which have similarly complex decisions? Will the watchdogs and the environmental community continue to be coy about the application of raw political power to make local planning decisions on the ground?
The quickest and easiest decision is not always the best one. The legislature may yet rue the day it stepped in to impose its will in the reserves case. It will be difficult to deny the second supplicant, much less the third, fourth and others.
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