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Simple Not Likely

OP-ED: Simplification doesn’t come easily

By: Edward Sullivan and Carrie Richter in Oregon Land Use November 10, 2015 3:03 pm

Ed Sullivan and Carrier RichterEdward Sullivan and Carrie Richter

Following several decisions by the Land Use Board of Appeals and appellate courts that invalidated urban growth boundary (UGB) amendments in McMinnville and Woodburn (twice), the 2013 Oregon Legislature enacted HB 2254. The legislation purported to “simplify” the UGB amendment process by creating an alternate path for local governments outside the Portland-metro area. However, the Land Conservation Development Commission’s efforts at implementing that legislation to date make manifest the difference between aspiring to simplicity and achieving it.

While HB 2254 provided a lead time of greater than two years to set up the alternative system through amendments to the urbanization goal (Goal 14) and the creation and amendment of administrative rules, the statutory deadline of Jan. 1, 2016 is fast approaching and the LCDC has been hard-pressed to get those changes adopted. Both the current system and the proposed alternative system deal with two key issues: whether additional urban land is needed and, if so, where should the UGB be expanded. The gist of the alternative process was to identify “safe harbors” to respond to these questions. Not surprisingly, the nature of those safe harbors continues to be the subject of debate, as many of them have not been established in the draft rules.

The LCDC set up a rules advisory committee (RAC), composed of the “usual suspects” in this debate – representatives of local governments and conservation and development interests. The RAC debated the issues, reaching consensus on some appropriate safe harbors, but not on others. The original assumptions for safe harbors was tested against “real world” research from the University of Oregon and RAC members and the assumptions proved to be inaccurate, requiring more time to redraft the rues.

Time simply has run out, as the LCDC saw incomplete draft rules in its October meeting with the caveat that those rules (plus other rules and an amendment to Goal 14) must be adopted at its next meeting in early December. A further draft of the rules and goal amendment will be released around November 20th in advance of the December hearing. Some commentators have complained that there is insufficient time to review these complex rules and that the result will be a botched effort that will discredit the land use program.

Here are some of the issues that complicate the new rules:

• Several larger cities (Bend, Springfield and Eugene) are currently in the process of amending their UGBs (some for many years) and are concerned that the 2013 legislation and implementing rules will impose new requirements on those efforts; however, the legislation did not include transitional provisions, which may yet result in additional obligations imposed on these cities.

• The new rules provide for study areas to analyze candidate lands for a larger UGB and measurements for the location of lands to be added by dividing residential and commercial/industrial/employment lands into different categories and attempt to deal with each of them separately. However, each of these categories has difficult issues to resolve, including:  Will acreage that might be redeveloped to be deducted from overall urban land needs? How are future land use designations, their density or intensity to be determined? How does a change in the planning period for the alternative process (from 20 to 14 years) impact the results? Just how much will cities have to show that lands currently within their UGBs are used efficiently before changes can be justified? While there is agreement on assessment of estimation of residential land needs, consensus on other important questions has not yet been achieved.

• Some have argued that by focusing on a fixed set of standards for the new process (which the rules now make the default UGB amendment process) that other important state policies are effectively downgraded in the rush to facilitate UGB enlargements. In particular, state statutes, goals and rules relating to needed housing are allegedly de-emphasized.

These and other issues may be resolved in the new draft of the rules and goal amendments before the LCDC in December, but no matter how the process plays itself out there will inevitably be disappointed participants. The current UGB amendment process is difficult, expensive, and susceptible to litigation. Whether the proposed simplification process overcomes these difficulties is yet to be seen.

Edward Sullivan is a retired partner in the Portland office of Garvey Schubert Barer. He practiced land use and municipal law for more than 45 years. Contact him at esulliva@gmail.com.

Carrie Richter is an owner specializing in land use and municipal law in the Portland office of Garvey Schubert Barer. Contact her at 503-553-3118 or atcrichter@gsblaw.com