On Thursday in Salem, state regulators will start their look at Metro's 2011 urban growth boundary expansion and its 2010 capacity ordinance. Before we delve too deep into land use law geekery, here's a quick refresher on what's happening and why.
Why is DLCD looking at the UGB?
Oregon land use law is complicated; what started as a simple premise under Republican Gov. Tom McCall – protect farm and forest land from sprawl – has become planning and regulatory kabuki. Years of legislation and case law guide a lengthy state review of any city's urban growth boundary expansion decision.
Once a city – or a region, in the case of Metro – decides to expand its urban growth boundary, the Oregon Department of Land Conservation and Development, or DLCD, reviews the decision. DLCD is looking at whether the boundary expansion followed the range of guidelines laid out in Oregon's statewide planning goals, state laws and each city's (or region's) approved planning regulations.
DLCD issues a report based on its analysis of the decision, which is presented to LCDC.
Wait, LCDC? I thought we were talking about DLCD?
Oh yeah, LCDC – the Land Conservation and Development Commission. In the parlance of George W. Bush, they're The Deciders. A seven-member board whose members are appointed by the governor, the commission looks at the long-range land use and zoning plans drafted by cities, counties and Metro, and decides whether they comply with Oregon's planning goals.
Refresh my memory - what did DLCD say to LCDC?
DLCD (the state staffers) told LCDC (the appointed commission) that Metro's 2011 urban growth boundary expansion decision was likely illegal, and should be sent back (remanded) back to Metro to fix. It largely signed off on Metro's 2010 capacity ordinance, which made some changes to Metro's planning rules and expectations.
The staffers found four main problems with Metro's expansion – they were confused by how Metro decided how much land to add to the urban growth boundary for housing and why; they didn't understand why Metro only analyzed about one-third of its urban reserves for boundary expansion; and they said Metro didn't do a state-mandated inventory of the region's available employment land.
Inevitably, someone will appeal whatever the commission decides; those appeals will be decided in the Oregon Court of Appeals.
The state staffers have been requiring more and more precision from cities (and Metro) about boundary expansions because of successful appeals of boundary expansions in court.
So is Thursday's meeting a one-sided affair? Staff gives its report to the commission, and that's that?
Not at all. A bunch of parties said they didn't like the staff report, and they will get to make their case at Thursday's commission meeting. These letters objecting to the staff report are called exceptions.
What did they say?
Ten parties filed exceptions with the state; some of them are several pages long. Here's our best effort to whittle them down to a paragraph (and links to the full exceptions if you want to read them):
- 1000 Friends of Oregon filed three exceptions. That land conservation advocacy group said Metro doesn't need the 330 acres it added to the UGB for large lot industrial sites. 1000 Friends also said Metro shouldn't have said it was unrealistic to expect all of the available residential land in the region to be developed in the next 20 years (the UGB is supposed to be a 20-year supply of developable land). Lastly, the group said Metro should have looked at its South Hillsboro expansion area for its industrial needs, not more housing and neighborhoods.
- Cornelius, a western Washington County city, said Metro couldn't legally pick urban reserves for an expansion because they hadn't been formally approved in writing yet (that formal approval, while long expected, still hasn't been issued). Cornelius says Metro needs to add more land for housing and says Metro's policies are hurting that city economically.
- Forest Grove, Cornelius' western neighbor, says Metro needs to give a more thorough look at the region's inventory of employment land.
- Hillsboro, to Cornelius' east, said the commission should reject the state report and approve the boundary expansion, with Mayor Jerry Willey calling the need for large industrial sites "dire" in the Portland region. He said staff's recommendations were "befuddling and frustrating."
- The Coalition for a Prosperous Region, a pro-development group, said LCDC should approve the boundary expansion but remand Metro's decision to only add 330 acres for industrial sites. The coalition wants 670 acres for manufacturing and employment.
- The Westside Economic Alliance, which is part of the Coalition for a Prosperous Region, said LCDC should approve the expansion and ask Metro to bolster its research for its next planned UGB review, in 2014.
- Elizabeth Graser-Lindsey filed eight exceptions concerning land southeast of Oregon City that was not added to the boundary.
- Jim Standring filed four exceptions in an effort to get land he owns north of U.S. 26 near Hillsboro added to the boundary.
- South Hillsboro Partners, a development company, filed three exceptions, saying the DLCD staff was wrong and Metro was right to add the land the partners own south of Hillsboro to the boundary.
Did Metro say anything?
Metro's resident land use guru, attorney Dick Benner, wrote a sharp response to the DLCD report. Benner, a former director of DLCD, said the departments' analysis of Metro's residential capacity was "surprising, startling and deeply disappointing."
"It indicts an approach that Metro used in its last capacity analysis, an approach that LCDC (the commission) approved and survived appeal," Benner wrote. "It calls for a level of analysis… not required by law, and unachievable in any reasonable way."
Benner said the department's request that Metro do a regional employment land inventory isn't required by law, and would be redundant because the cities and counties within Metro have already done said inventory.
He said the work to evaluate more than the 9,800 acres of the 28,256-acre urban reserves would also be redundant, as all of the urban reserves – and much of the rest of the region's land near the UGB – were thoroughly studied in the 2007-2010 process to designate the urban reserves.
And, he said, Metro did perform the so-called "locational analysis" called for by Oregon's planning Goal 14.
But if the commission approves Metro's decisions, isn't it just going to be rejected by the appeals court?
The Court of Appeals has been tightening the standards for review of UGB expansions, but Metro would rather hurry up and let the court make that call. As Metro Council President Tom Hughes put it in a work session this week, Metro is trying to avoid doing 18 months of extra work just to get to two years of litigation. The regional government would rather start the litigation now.
When's showtime?
The Land Conservation and Development Commission meeting starts at 8 a.m. Thursday in Salem.
So we'll know by Friday?
Probably not. It's looking like the commission will tackle everything but the residential question on Thursday, and maybe take some public comment on Friday; the residential portion of the review will take place sometime in June.
And what could LCDC say?
"To heck with Oregon's land use laws! We're moving to Phoenix!" OK, probably not. But the commission does have a lot of options.
Commissioners could override the staff report and approve the boundary expansion and 2010 capacity ordinance.
The commission could send the whole thing back to Metro – the expansion, the analysis of how much land is needed, everything.
The best odds are probably somewhere in between, though – accepting parts of Metro's decisions, asking for more information or a reconsideration of other parts.
What happens if LCDC says no?
The commission doesn't get to summarily make a decision; instead it can "remand" the decision back to Metro. At that point, the Metro Council essentially has to do what the commission said it should do, or take the issue to court.