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The Virtue of Having Several Million Dollars to Spend on Planning

OP-ED: The virtue of patience: the Bend UGB controversy

Edward Sullivan and Carrie Richter

The recent land use history of Central Oregon’s largest metropolitan area is like “War and Peace” – long, containing many characters and providing a sense of the dramatic. Hopefully, like the novel, the Bend tale may also have an ending. Bend’s population is estimated to be greater than 87,000, up by more than 10,000 from the 2010 census, leaving city leaders with many headaches as they deal with the need to accommodate growth and the concerns of existing residents in doing so.

Oregon’s cities must have urban growth boundaries (UGBs) to assure there is sufficient land for residential, recreational, commercial, industrial and employment uses for a rolling 20-year period. This policy prevents rural and resource lands being taken for urban uses. The trade-off, however, is that cities, in cooperation with the surrounding county or counties, must accurately estimate land needs and plan to meet them through land allocations for various categories of uses. Even if the plan and its implementing regulations, like zoning, comply at one point with the statewide planning goals, the rolling 20-year horizon demands updates to show that those goals are continuing to be met.

For many communities, especially Bend, it is the UGB’s residential element that is most difficult, because Oregon’s housing goal requires a city to plan for “adequate numbers of needed housing units at price ranges and rent levels which are commensurate with the financial capabilities of Oregon households.” This is no simple task, for it requires the city to predict the number of households who will buy or rent housing within that 20-year horizon, divide that number into homeowner or rental categories, further divide those numbers into income categories, estimate the amount land needed for each of those categories, determine whether those needs can be met with lands already within the UGB and, if not, plan and zone sufficient lands to meet those needs including lands not yet inside the UGB.

To make the matter more difficult, there are vocal critics on all sides of these estimates. Realtors and Chamber of Commerce types will often suggest that the amount of land is insufficient or offers insufficient market choices, while conservationists and land use watchdogs often suggest that too much land has been allocated and that resource lands have been lost or will be. Either or both of these types have been known to appeal or file suit if they feel they have not been heard sufficiently.

Bend began its UGB process in 2004 and took five years to come up with a comprehensive set of plan amendments, which were challenged at the Land Use Board of Appeals and the Land Conservation and Development Commission (LCDC). In November 2010, the LCDC remanded the UGB to the city for further proceedings to justify the same. The city formed a Steering Committee, composed of the entire City Council, two Bend planning commissioners and a county commissioner. The city also formed three technical advisory committees to address housing, employment and growth scenarios, and hired outside consultants, led by Angelo Planning Group. Plus, the city began an extensive hearings process that lasted from 2013 to 2016, culminating in a UGB with much better justification.

The process for “acknowledgment,” or certification, that the city’s plan and implementing regulations meet goals potentially has many layers. DLCD staff reviews these documents and makes a report to the agency director. The director may take action to acknowledge or remand the submission, with that action being subject to review by the LCDC and, ultimately, the courts. If no one appeals, then the director’s action is final. In this case, the director agreed with a staff report recommending acknowledgment and none of the parties that participated chose to appeal the director’s action. After almost 14 years, the city is acknowledged.

It was the boundary that was the focus of most planning participants. The new boundary adds 2,380 acres inside the UGB, far smaller than the effort that failed in 2010. The city indicates that almost 70 percent of the growth in housing and jobs will occur within the current boundary through redevelopment. To accommodate more housing with comparatively less land, the city increased both its overall housing densities and the variety of housing types allowable.

But the city did much more. Starting with improvements in its Buildable Lands Inventory and Housing Needs Analysis, the city dealt with providing for housing on smaller, vacant and redevelopable parcels, raised minimum densities, encouraged infill and needed housing in higher volume corridors and neighborhood centers (with special emphasis on a vibrant, walkable downtown) and supported these initiatives with necessary public facilities and services. The final amendments to the city’s Comprehensive Plan identified nine “opportunity areas” in the current UGB, with four of these being areas where the city adopted specific plan changes to support additional development of housing. Without watchdogs, the LCDC would not have been so detailed in its criticism of the initial plan submission in 2009. Without a strongly backed citizen planning process and a competent staff and excellent consultants, the city would not now be patting itself on the back for a job well done.

Observers don’t always agree that the land use process has worked. In the case of Bend, the process was taken seriously by all participants. The meetings were long, the exchanges sometimes sharp and the weariness pervasive. Nevertheless, the accomplishment was significant and Bend may now look forward to development that accommodates its future needs.

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 attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or crichter@batemanseidel.com.

Original Daily Journal of Commerce post