By James Howsley, Attorney and Joseph Schaefer, Paralegal and Land Use Planner
House Bill 4078, which was signed by the governor on April 1, 2014, provides urban growth certainty and opportunity for Hillsboro, Forest Grove, and Cornelius, and those communities can charge forward with detailed planning and development after years of broad brush planning and litigation. These three communities glimmer in success, along with the justly lauded Rep. Brian Clem, D-Salem, who orchestrated the negotiations.
But while the bill decided the status of 20 specific areas in western Washington County, it is mute regarding the rest of Washington County, and also silent regarding Clackamas and Multnomah counties. The Court of Appeals tossed out the Metro reserves in the middle of the short legislative session, requiring extensive new analysis of many areas not affected by HB 4078.
HB 4078 does ease the legal requirements for the Land Conservation and Development Commission’s (“LCDC”) review and approval of the remainder of the urban and rural reserves. The prior law (according to the court) required the counties and Metro to analyze land use standards that were not apparent to them, apply them to facts, and describe in exhaustive detail how the facts demonstrate compliance with the standards. It also required LCDC to reject any decisions by Metro and the counties that were not sufficiently thorough or completely accurate when applying fuzzy standards to potential facts twenty years hence. HB 4078 says that even if the counties and Metro do not adequately document their new analyses, the LCDC can nevertheless approve the reserves if evidence in Metro's record supports their decision. The legislative intent is to thwart appeals that rely on narrow technical details.
With many legal questions answered, the focus now shifts to land use policy and political wrangling, with two key questions to answer. The first question is whether to keep the same exact reserves and simply rewrite the analysis to comply with the Court of Appeals decision. If the answer is yes, this will discourage local governments and property owners from seeking a second bite at the apple. If the answer is no, then all interested parties will dive into the new analysis and drive it for their own purposes, which likely means inevitable delays in approval of Metro reserves as the process fumbles along responding to those special interests. The second question is whether to keep the same overall amount of urban and rural reserves, but allow changes to the designated areas. If the answer is yes, it’s time for musical chairs. If the answer is to grow (or shrink) the amount of either kind of reserves, the land use players will battle over the spoils.
Regardless of these policy decisions, the counties must scramble. The Court of Appeals requires Washington County to redo its analysis of rural reserves. But a new analysis could discover that more land should be classified as urban, or as rural, or that the amount of urban and rural land should remain the same but the locations should differ.
In Clackamas County, the court ruled that the designation of 7,300 acres of urban reserves in the Stafford area was “impermissibly speculative" due to the forecast of severe traffic congestion in 2035. Assume for a moment the response is to reduce the urban reserves in this area by 25% while maintaining the same total amount of urban reserves in the county. Metro and the county would need to find 1825 acres of new urban reserves.
Multnomah County must redo its analysis of rural reserve area 9D adjacent to Bethany because it failed to adequately consider how the urban reserve factors applied to a portion of the area. The court expressed concern that other study areas designated as rural reserves in Multnomah County may also include portions suitable for urban reserves. It requires LCDC to determine the effect of Multnomah County's error on the reserves throughout the county—that's right, they must reanalyze all rural reserves in the county due to the possibility of a similar error elsewhere.
So when you look closely, HB 4078 is a precise intervention rather than the "grand bargain" touted by many. Many policy questions presented by the Court of Appeals decision remain. And most of the time and expense of resolving the appeals remain as well.
Although HB 4078 gives LCDC more flexibility in its response to the Court of Appeals, the bill does not apply to any other decisions; not even to future Metro urban reserves designations. And this one-time fix does nothing to enhance the authority of local elected officials or LCDC in other urban growth boundary cases. In recent years the Court of Appeals has thrown out several approved UGB expansions around the state, primarily because it did not think the discussions, or “findings” were thorough enough, regardless of whether there were facts to support them.
Under Oregon's vaunted system, long range land use planning is not intended as a legislative or judicial exercise; rather, it is supposed to be a local government function overseen by LCDC. Yet once again state law, as interpreted by the courts, has superseded the tough, practical policy decisions made by local elected officials.
That local officials are frustrated is old news. What remains to be seen is whether HB 4078 portends a new legislative effort to simplify the labyrinthine legal requirements and return land use policy to the local level, or whether it is a unique bonus for Hillsboro, Forest Grove and Cornelius.