The city has been to the Court of Appeals twice. Both times the CoA remanded LCDC’s approval as being inadequate for review. The implication is that LCDC does not know how the land use system works, or how to write up a final order that the court will even bother to look at.
If LCDC can’t do it there is a problem. Maybe the land use system is broken, or maybe LCDC/DLCD only want what they want. Refer to the posts on the land use triad starting here.
For now, the city should continue its march to the statehouse, especially in concert with other cities and economic development partners. The city should tell LCDC/DLCD that it will appeal any remand and so since LCDC will end up in court anyway it may be better to work with the city on a 3rd approval.
The city and every legislator it can muster should insist that LCDC/DLCD demonstrate that the land use system works and that they know how it works. Traditionally, when LDCD doesn’t like a city’s proposal it issues a ‘fetch another rock’ remand. That is, LCDC says the city failed to provide enough evidence to convince the commission to approve.
It is not LCDC’s job to substitute its judgement for the city’s. But as is typical for many volunteer planning commissions everywhere, that’s what they do. If the commission doesn’t know its job, or doesn’t know how to do it, or worse, wants to do something else, then there is a problem.
LCDC’s job on review is not to provide new ad hoc policy preferences. It is not to nudge or cudgel the city to do something the commission prefers. Its job is on review is far less vainglorious. They may need to be reminded.
LCDC’s job is to identify the necessary local government findings for the type of proposal at hand. It should identify any missing findings. It should identify any findings that the local government has not connected to substantial evidence. If the local government has pointed to evidence in the record to support its findings with the reasonable person test, it is not LCDC’s job to conclude otherwise.
If findings connected to substantial evidence have drawn objections alleging errors of fact or law it can get tricky. The objector has to show that a factual error significantly altered the outcome and propose a remedy. The objector has to show that an error of law is plainly wrong. Lawyers argue over the nuances of all this and so this simple overview is legally inadequate but hopefully clear nonetheless.
The two LCDC attempts at approval have been more about hair splitting than a plain recitation of the law that plainly supports a city’s authority to grow in an orderly fashion for economic development purposes. If LCDC or the legislature wants a different policy it should enact it, not play land use politics at Woodburn’s expense.