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Allegations against Oregon county’s bridge project ruled plausible


A bridge construction project in Oregon’s Yamhill County will remain halted after a state land use board determined it may be unlawful and irreparably harm farmers and wetlands.

Opponents of the bridge project along a proposed 3-mile recreational trail have plausibly alleged Yamhill County approved it in violation of zoning ordinances, according to Oregon’s Land Use Board of Appeals.

Construction on the bridge must remain suspended until LUBA can conduct further deliberations in the case. Opponents and the county must submit additional legal briefs before oral arguments take place on May 27 by telephone conference.

The decision extends a stay order imposed by LUBA earlier this month after critics complained the bridge project impermissibly advances the controversial rail-to-trail project, whose approval LUBA overturned last year.

Yamhill County was ordered by LUBA to more closely scrutinize potential agricultural impacts from the Yamhelas-Westsider trail, which is opposed by numerous farmers along the route between Yamhill and Carlton.

Opponents of the recreational trail argued the local government “duped” LUBA by proceeding with the bridge project even though the trail hadn’t yet been fully reviewed for farm impacts, such as increased restrictions on pesticide usage and crop contamination from litter and trespassing.

Yamhill County argued the bridge wasn’t subject to Oregon’s land use process because it’s intended to improve access for fire trucks and wouldn’t be opened to the public until the overall recreational trail passes legal muster.

According to the county, critics also failed to show the bridge would cause “irreparable harm” that would warrant stopping construction, since the project is far enough from hazelnut trees that it won’t impede herbicide and fungicide spraying.

Food safety also won’t be a problem because the bridge was scheduled to be finished before May 1, long before hazelnuts would be grown and harvested from trees that were planted last year, the county said.

The county argued that “all environmental clearances were obtained” for the bridge, whose construction is being overseen by consulting engineers and the Oregon Department of Transportation.

Although LUBA said the issue of pesticides was “a reasonably close question,” the board determined that farmer Ben Van Dyke has established the construction site was close enough to prevent him from necessary sprays, at least for the purposes of staying the project.

Litter from the construction site is also a “probable” injury for the purposes of the stay order, since the county hasn’t promised to ensure detritus won’t blow onto the hazelnut farm, according to LUBA.

As for environmental approvals, LUBA found that documentation from the state and federal governments didn’t clearly enough show that construction won’t occur in regulated wetlands.

The state and federal approvals also cited the county’s conditional use permit for the recreational trail, but that permit is no longer effective after Yamhill County was ordered to reconsider the decision, according to LUBA.

The bridge project, which would cost $1 million to design and build, was largely funded by government grants and wouldn’t be easily removed if it’s later decided the county approved it unlawfully, LUBA’s order said.

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OP-ED: Oregon cities facing balancing act in implementing HB 2001

Keenan Ordon-Bakalian

At the Metro Technical Advisory Committee (MTAC) meeting on Jan. 15, the committee was briefed by staff from the Oregon Department of Land Conservation and Development (DLCD) regarding the ongoing implementation of recently adopted HB 2001, also known as the “Missing Middle Housing” bill.

Requirements for large and medium cities

The Oregon Legislature passed HB 2001 on the final day of the 2019 session in an attempt to allow for greater housing choice and increased supply in residentially zoned areas. In passing the bill, the Legislature identified what it believes to be a significant lack of supply of middle housing, which bridges the gap between single-family homes and mid- or high-rise apartment buildings. Affected cities are required to update their local regulations, which have previously limited what types of housing could be built. Supporters of the bill argue that those limitations led to increased housing costs across the state. However, many people believe the bill will negatively impact neighborhood character and accelerate housing displacement, especially within Portland city limits.

Implementation of HB 2001 is of primary concern to the Metro Council, because its impact will be felt most significantly by metro cities, which are largely defined as “large cities” under HB 2001. These include cities with a population greater than 25,000, unincorporated areas within the Portland-metro boundary that are served by sufficient urban services, and cities within the Portland-metro boundary with a population greater than 1,000.

The bill requires all large cities to allow construction of additional “middle housing” inventory beyond duplexes. These include fourplexes, multiplexes, accessory dwelling units (ADUs), and cottage clusters of homes centered around a common yard.

HB 2001 affects cities statewide, including sizable ones like Bend and Medford, but also smaller ones like Newport and Pendleton. These “medium cities,” as defined in HB 2001, are all those “outside the Portland-metro boundary with a population between 10,000 and 25,000.” HB 2001 requires medium cities to specifically provide for construction of duplexes in areas zoned for single-family dwellings.

In addition to specific changes to local development regulations, HB 2001 also imposes new limitations on, for example, zoning and development standards relating to ADUs, CC&R provisions relating to middle housing in residential neighborhoods, and building codes.

The bill does provide some flexibility for medium and large cities to regulate siting and design of middle housing, provided that the regulations do not, individually or cumulatively, discourage development of all middle housing types permitted in the area through unreasonable cost or delay. The bill also provided $3.5 million for technical assistance to cities, and DLCD has been tasked to work with local governments to update their codes and implement the specifics of the bill by mandated timelines.

Deadline for new regulations

Medium cities have until June 30, 2021 to adopt local code sections implementing HB 2001 requirements. Large cities have until June 30, 2022 to do the same. While affected cities may request an extension from DLCD due to infrastructure deficiencies, if the extension is not approved by DLCD and the city fails to develop regulations implementing middle housing by the applicable deadline, a model code promulgated by DLCD will apply directly.

DLCD has a deadline of Dec. 31, 2020 to adopt a model code for all affected cities. DLCD noted at the MTAC meeting that this is a significant undertaking, because the bill requires promulgation of a code that will be generally applicable to all affected cities, while at the same time accounting for the fact that cities across the state face diverse planning and infrastructure challenges.

Impacts of HB 2001

The cumulative effect of HB 2001 on metro-area cities – where the bill will have the most acute impact – remains to be seen. The city of Portland is in the process of undertaking its own Residential Infill Project, which will allow for additional middle housing in conjunction with the requirements of HB 2001. Additionally, the city is revising its rules around multifamily housing, called “Better Housing by Design.”

Another metro-area city, Beaverton, is in the process of developing its own Housing Options Project, which is designed to increase middle housing inventory within existing neighborhoods. However, because affected cities are still in the planning stages of implementing HB 2001, the implications of the bill will not be fully revealed until new housing development comes online.

Beyond the impact to Oregon cities, the bill will also require private developers to adjust market strategies and long-term planning objectives. Small-scale developers have historically been the most active builders of middle housing, while major developers have focused on large single-family homes in suburban areas or high-density multifamily projects. It is not clear whether HB 2001 will encourage major developers to become more active in the middle housing arena.

Further, national studies have provided conflicting answers as to whether denser zoning leads to additional construction. It is highly likely that Oregon cities will see dramatically different effects when the new middle housing regulations come online. Certain cities will see a dramatic increase in middle housing supply, while others may see a less tangible change, due to infrastructure constraints, market demand, and siting and design requirements – which will vary from city to city.

HB 2001 will require private developers to engage in a complex balancing act, simultaneously striving to achieve the bill’s goal of creating more housing, while at the same time navigating shifting market demand and new development regulations.

Keenan Ordon-Bakalian is an attorney in Jordan Ramis PC’s land use and development practice group. Contact him at 360-567-4843 or This column is intended to provide readers with general information and not legal advice. Consult professional counsel for help regarding specific situations.

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Does Oregon need a prime directive?

As the right of each community to live in accordance with its normal cultural evolution is considered sacred, no outside advocate, bureaucrat or state official may interfere with the normal and healthy development of local life and culture. Such interference includes introducing ‘superior ideas and knowledge’ to a community whose society is unwilling or incapable of handling such ‘advantages’. Government personnel may not violate this Prime Directive, even to save their lives or jobs, unless they are acting to right an earlier violation or an accidental contamination of said community and culture. This directive takes precedence over any and all other considerations, and carries with it the highest moral obligation

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Woodburn Slowburn

Remanded UGB goes before city, county in December

Created on Wednesday, 11 November 2015 00:00 | Written by Tyler Francke | Print

‘Very good collaboration’ between parties in drafting findings for framework agreement

A joint hearing has been set for next month between the city and Marion County to consider the remand and re-adoption of the Woodburn urban growth boundary expansion.

The meeting between the City Council and county commission has been set for Dec. 14 at Woodburn City Hall.

The hearing marks what city officials hope will be a major step forward in the nearly two-decades-long effort to amend Woodburn’s UGB.

The city’s proposal for expansion was first approved by council in 2005, ultimately gaining the OK of both the county and state Land Conservation and Development Commission, as well.

However, the subsequent 10 years have been largely characterized by contention, appeals from area residents and the land-use advocacy group 1000 Friends of Oregon, and disappointment — for the city, anyway.

On two separate occasions, the most recent in 2014, the proposal stalled in the court system after being appealed by opponents repeatedly.

A turning point came during closed-door mediation this spring between the city and the primary opponents in the case. A framework agreement for a smaller and less ambitious UGB expansion emerged from that, and was quickly approved in principle by the City Council and commissioners.

The past several months have been spent drafting new findings of fact to support and justify the new agreement and its various concessions and compromises. It is these new findings that will be the primary subject of the Dec. 14 hearing.

Last week, Mayor Kathy Figley said she expects the hearing to be fairly straightforward and controversy-free, considering that the commission, along with county staff, and 1000 Friends have been deeply involved with the drafting of the new findings.

That’s one of the reasons the process took as long as it did, she said.

“I’d say there’s been very good collaboration involving our staff, the county, the (Department of Land Conservation and Development) and 1000 Friends,” Figley said. “It took a while, but that’s not unexpected when you’re dealing with a complex subject and working with data that is 10 years old.”

Still, she pointed out that the city is only slightly behind the very tentative timeline that was drafted at the beginning of the process in April.

“Really, I think the amazing thing is not that we’re one month behind,” she said. “The amazing thing is that we’ve been able to get it done at all.”

City officials, like Figley and former Council President Pete McCallum, have been openly critical about the state’s land-use process, which has delayed and even derailed not just Woodburn’s UGB proposal, but those of McMinnville, Newberg and others.

Woodburn has been unique among them in managing to come to a mediated agreement with opponents and move forward, but that doesn’t mean Figley has changed her mind about improvements that need to be made to the state’s system.

She spoke positively of the mediation, saying it produced some “mutual respect” among the parties that had previously been at odds with one another, but argued that getting to that point needs to be made easier — not something that comes as a last resort like it did with Woodburn.

“Something needs to happen that makes that more possible, and even encouraged,” Figley said. “It shouldn’t have to happen after you’ve been fighting each other for 10 years.”

Perhaps the most hotly contested piece of the UGB proposal, prior to mediation, was the so-called “Opus property,” a 130-acre parcel designated for industrial use and held by Specht Properties Inc., a major real estate development and property management firm based in Beaverton.

Located adjacent to the Woodburn Winco Foods Distribution Center and just north of Interstate 5, the Opus property was included in the framework agreement as part of the city’s industrial UGB expansion.

Figley said last week that attorneys and representatives of Specht have been following the progress of the UGB amendment since the agreement was approved earlier this year.

A posting on the developer’s website said it entered into an agreement to purchase the property in 2013 and anticipates it “will accommodate up to 2 million square feet of industrial space.”

Per the agreement, 230 acres of industrial land were excluded from the proposal (to be designated urban reserves), and 135 acres of residential land were removed from the UGB expansion outright.

The lion’s share of the residential land, located in four parcels north of the city limits, belong to longtime area residents Bob and Jean Fessler, founders of Woodburn Nursery & Azaleas, and their family.

Son Tom Fessler, manager of the nursery, appeared before the council in May in opposition of the proposal.

“It’s not equitable; it doesn’t line up with the facts, the law or the evidence,” he said.

He also criticized that his family had not been involved in the mediation process prior to having their property excluded.

Last week, Figley reiterated comments she had made in April in regard to the Fesslers.

“I don’t like being put in the position of having to say, ‘Here’s a winner; here’s a loser,’” she said.

However, she said the fact remains that Woodburn’s supply of available residential land is running low, and new land-use rules that take effect next year are supposed to streamline the UGB process.

“With the new process, I hope that will be a benefit to them, getting their property into the UGB sooner rather than later,” she said.

Once the city and county approve the remanded UGB proposal, it will go before the state DLCD for a final order.


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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

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