A bill to address the slog of legal review of Metro area urban growth boundary expansions was proposed for a dramatic overhaul this week, less than two days into this year's short legislative session.
The bill's proposed amendments give timelines to state regulators and the Oregon Court of Appeals in their review of Metro's future urban growth boundary expansions. That would be a win for the Metro Council, which had asked the Legislature to require the courts to hurry up review of UGB cases, and for Hillsboro and Beaverton, which are planning developments in the UGB expansion areas.
"We are potentially five years out before a nail can be driven, a shovel can be put into the dirt," said Hillsboro Mayor Jerry Willey in his testimony Tuesday. "What we're asking for is a hand out to make this process more efficient and faster."
But the bill – even with the proposed changes – was criticized by both developers and land conservation advocates Tuesday, at its first hearing at the House Committee on Rural Communities.
It's a classic Goldilocks dilemma – developers thought the amended bill didn't go far enough in expediting the addition of land to the UGB; land conservation advocates felt like it still goes too far in telling the courts to hurry decisions. There was plenty of hyperbole from speakers at Tuesday's hearing.
It'll be a week before we know if the House Committee on Rural Communities thinks it's just right.
In the bill's proposed amendments, the Oregon Land Conservation and Development Commission would be required to issue its final order on UGB reviews within 120 days after its vote. The bill then spells out an expedited timeframe for the Oregon Court of Appeals to hear arguments on appeals of LCDC's decision, with a ruling due from the Court of Appeals within 105 days.
Similar time limits exist for certain land use cases – those already heard by the Oregon Land Use Board of Appeals – but not for UGB expansions.
"We think the problem in the process is not that the process is broken, not that it's too complex, but that it takes too long," said Metro Council President Tom Hughes.
The proposed bill doesn't do a lot to resolve the present dilemma – that an urban growth boundary expansion approved by the Metro Council in 2011 and affirmed by LCDC in 2012 still hasn't been heard by the Court of Appeals, which is waiting until a ruling is issued in the landmark Barkers Five LLC v. LCDC, the appeal of the Portland region's designation of urban and rural reserves.
The bill, with its proposed amendments, would put legal challenges to the 2011 UGB case on an expedited timeframe, but only after the courts finish with their review of urban and rural reserves, a case the appeals court heard in January 2013. There's no indication of when the Court of Appeals could rule on that case.
In testimony before the committee Tuesday, Bruce Miller, a staff counsel in the Office of the State Court Administrator, said Barkers Five is likely the most complex case the Court of Appeals has ever had to decide. He pointed out that the case has 22 petitioners, seven respondents, 25 assignments of error, 58 sub-assignments of error – and 36,000 pages of legal record.
"They've given the case their highest priority," Miller said. "They're working diligently and as fast as they can on it, but it is a beast."
The courts don't favor time limits, Miller said, implying that expediting land use cases can delay more important matters for the court to consider.
"Time limits like 105 days can affect meaningful judicial review," Miller said. "It can delay other cases that require quick action – juvenile cases that require quick action, termination of parental rights – those are the sorts of cases that get delayed in the process the more things you put in front of the process."
He also said a 105-day limit wasn't long enough to review cases as complex as Oregon land use issues, saying the courts should have the option to take more time, as long as they can explain why more time is needed.
Land conservation advocates were staunch in their opposition to the bill's original concept – to legislatively declare Metro's 2011 UGB expansion valid – opposition that was joined by Metro's Hughes.
"We don’t want to make the Legislature a fourth step," in what was supposed to be a two-step, and is now a three-step review process of UGB expansions, Hughes said. "We think there's a place where the process needs to be changed, tweaked and made to work a little bit more efficiently, and that's what the amendments do."
Many of the land conservation advocates at Tuesday's hearing used it as another chance to criticize Metro's unique urban and rural reserves designations, which could someday allow for urbanization on high-quality farmland near Hillsboro.
Farmers came from as far away as Madras to speak out against anything that could make it easier and quicker for farmers to sell land to developers.
Roger Kaye, president of Friends of Marion County, pointed to the maxim that justice delayed is denied.
"Justice accelerated can also lead to justice denied," Kaye said.
But Jeff Bachrach, a representative of South Hillsboro's developers, said the current situation is unique, and there is a compelling need for the Legislature to act.
"We're bursting to move forward this year and it's going to get stalled – three years? Four years? Five years? We don't know, but those are reasonable estimates," he said. "We're being held hostage to this enormous, complicated, 50-year, once-in-a-lifetime decision."
Hillsboro's Willey said the bill would help the Portland region address another mandate from the Legislature – its 2007 mandate to reduce tailpipe emissions in the Portland region.
"Metro has been working on that for well over a year, it's called Climate Smart Communities, and the whole premise of how that works is, quite frankly, having housing close to employment areas," Willey said. "That's exactly what South Hillsboro does for our north industrial employment area."
The committee is set to discuss the bill again next Tuesday, and must be approved by the Committee on Rural Communities by Feb. 13 if it's going to pass this session.
Note: An earlier version of this story indicated that changes to the bill had been accepted. The changes have proposed, but not adopted. This version has been corrected.