This wiki page is intended to help smaller cities in Oregon complete, implement and prevail on economic development visioning and land use compliance projects. A recent Court of Appeals decision regarding the City of Scappoose makes things clearer that were always true but untested.
Please find the decision here.
Has anything really changed?
The good news is that the decision helps a city know that it can really decide what is important, it does not have to be not be trapped by history, it can successfully implement the local vision, and it can give the public and good local planners the chance to do good local planning.
The bad news is that it highlights the importance of and sometimes lack of competence and good sense among local planning commissions, city councils, city staff, consultants and state agencies and state commissions. Planning still costs money. Implementation still costs money. Special interests groups still have the upper hand in the process.
It is doable, and can be affordable but it has to be done correctly. This wiki is mostly about how to build a successful decision. It is not about what cities should do in their particular circumstances to thrive.
Check out the safe harbors – and live with them if possible. In any case, get the population and employment forecast data that will be published by DLCD starting in January 2016. These do not have to be traps but the city does have to explain the basis for its new course.
The Community Vision Statement
The community vision and community objectives statement is a key fundamental document. Don’t screw this up. Do a SWOT analysis or something similar. List the findings the city will have to provide to satisfy the land use goals (9, 14, 11, 5 and others). Discuss and decide what is required – and what is available for local interpretation and balancing – to meet the goals. At the end know what it is the city is trying to achieve, why that is reasonable (and what reasonable means) and what, if supported by evidence from this process, is necessary to achieve it. Stay at this step until it is done right, and remember, there are points later in the process that may require the city to go back and supplement this so it is worth looking ahead and doing it right the first time. The whole process is a test, of sorts, and so don’t be shy about training and testing the local participants.
The choices the city makes later in the process have to be supported by evidence. There will be lots of evidence that seems to conflict or confuse – city’s will have to choose what to rely on. That choice can (only) be supported by what the city says it is trying to achieve in the community vision/objective statement.
Include (and mean it) the desire to balance orderly urban growth with protection of other resources as appropriate to achieve the city’s vision. Say how the city will do that in the circumstances. Others may propose their vision for the city’s growth and the facts they say recommend a different vision. The city will have to accept and weigh alternate facts against the city’s vision and analysis; the city can accept or ignore the alternate vision as it wants to.
Include how the city will identify, plan and implement decisions to move the local jobs and population relationship in a desirable and reasonable direction from where it starts during the planning period. Be realistic. Better to build momentum than try to swallow the whale all at once.
Include the desire to have a right-sized competitive employment land supply and replenishment mechanism.
Include how the city will evaluate existing developed lands to determine their likely redevelopment and future capacity increases. This is required and worth doing well, so do it well. One suggestion could be to identify an improvement to land value ratio to set as city wide catch-all redevelopment and efficiency factors. Then go beyond to propose higher infill and redevelopment rates anticipated where local tools such as urban renewal are applied.
Include how the city will categorize and manage its land supply to achieve its vision. This categorization then guides the land inventory and needed supply analyses. Most cities just use zoning types such as commercial and industrial with a few sub-variants. Don’t do this. If the city intends to actively manage lands due to special designations or public investments, define one or more categories of high value employment land. Some of these will need special site criteria; if so define one or more categories of prime high value employment land. And have one or more categories of general employment land the city intends to manage more passively with local zoning based on changing local circumstances. Have something for main street or the CBD. Gathered eventually under these category umbrellas in the vision statement will be all the needed land use designations and zoning codes that are adopted and implemented by the city. Include methods for how existing and future capacity for planning purposes will be determined.
It is very useful to do this for practice with interesting sample data and colorful examples. It can be fun if an effort is made to make it fun. Find ways to go to groups of people; don’t expect they will come to city hall. The importance of this work and one of the lessons from Scappoose is that the community vision process and results can be relied on for the decisions ahead if it is done and documented well.
The Formal EOA
Review of trends. Since this is intended to be the primary determinate of the local land supply decision, it is worth doing well. The rule just says to review local, regional and national trends. What it should also say is that the city should review facts and trends – good and bad – that affect all the facets of the community vision. Together the community vision and review of trends form the basis to justify the local decision that is supposed to be protected from being re-judged or overturned (unless the city itself screws up). And if the review of trends tells the city it should change course before it does something stupid, well, it should change course before it does something stupid.
Needed site types. This should be the list generated from the community vision.
Inventory. The inventory of the needed site type categories. The land supply does not have to be treated as if every acre is the same as every other acre – if the city has built its community vision and subsequent analysis to support the notion of important differences.
Provide official public notice and call the first evidentiary hearing to accept new facts, assess the community potential (technically the last formal EOA step) and close out the public fact finding/opinion phase.
Analyze new facts. Identify any that conflict with or affect the assembled factual base. Make sure that facets of the community vision and review of trends (etc) provide a solid foundation to support the choices among conflicting or confusing facts.
Go back or go on. The city may have to go back and revisit or completely re-do the community vision and other work to be sure that decisions are supported. If the city is choosing something it must have first built something to stand on.
Analyze and interpret the factual base and requirements. Create the necessary implementing policies. The policies are required and are worth doing well. So do them well.
Remember the Alamo and Goal 14 efficiency improvement requirements and deal with them explicitly.
Put a recommended set of decisions to the PC and city council. Make sure they are prepared to actually discuss and decide everything needed to make a good set of findings. It is especially important to assess the community growth potential based on those facts on which the city chooses to rely amidst any conflicting and confusing facts in the record. When lack of competence appears, as it will, recess the meeting to get the yahoos back on track. Continue the meeting to another day if needed.
Go back or go on. The city may have to go back and revisit or completely re-do the community vision and other work to be sure that the city has crafted a complete set of findings built on the community vision and trend analysis.
The county decision and how to create success in advance. In most cases the county is the coordinating land use authority. It can be very useful to get the county to adopt some of the nuts and bolts details of the vision and need analysis methodology in advance so that cities can use them without having to re-justify them. At a minimum, don’t surprise the county with the city’s project – include them early.
Standing up at the LCDC hearing. The city needs to know what it needs to show. Make sure LCDC provides their standard of review with their meeting materials or otherwise provides it in advance. Review it with them at the beginning. Fight it if they have it wrong. Join (or form) a co-op with other cities to spread the cost of these fights (unfortunately – don’t count on LOC). Object to other participants’ attempts to introduce new facts or attempts to encourage LCDC to change or re-interpret the city’s decisions. Don’t chase the objectors into the weeds – that’s their victory turf. Pull the discussion back to the required standards and how the city complied. The city is there to demonstrate that it made all the required decisions (findings) to comply with the goals, made them within its scope of authority, and made the decisions based on an adequate factual basis upon which it relied to inform all the necessary decisions amidst conflicting and confusing facts.
Objectors are there to both show the city did not comply and to suggest other means to meet the city’s objectives (not their own) that would comply – and they must do both. LCDC is there to decide if any errors in the city’s record of decision are minor or significant enough to remand; to affirm that the city on the whole complied with the goals within its scope of authority; or to explain why not if it thinks the city got it wrong. Keep a good record of what the LCDC actually asks, says and decides. Help keep the discussion on track. Object to any LCDC attempt to defer an adverse decision to be filled in by its lawyers and staff. Join (or form) a co-op with other cities to spread the cost of these fights (unfortunately – don’t count on LOC).
If LCDC is getting it wrong, or is lost (both are common and reasonable for a volunteer board just like the city’s own planning commission), don’t accuse them of malfeasance. Offer friendly leadership to help them get it right.
Go back or go on.
If while at the LCDC hearing it is revealed that some portion of the city decision doesn’t have the needed foundation, withdraw and fix it. Don’t invite trouble by letting the LCDC make a decision and worse, write it up.
If the plan goes to the Court of Appeals.
If the city has voluntarily withdrawn and fixed any deficiencies in its decision, but LCDC’s approval has been appealed, make sure the department, LCDC and DOJ are arguing the right case to affirm its decision. This was a problem for Woodburn. If the city is appealing an adverse LCDC decision, make sure the city is arguing the right case. Read about the decisions regarding Scappoose (and for good measure McMinnville, Woodburn and Newberg).
The city should appeal an adverse LCDC decision if the commission has strayed from its standard of review or has substituted its judgement for the city’s. Sometimes, these faults can happen in an approval – the city should do a risk analysis of having the approval appealed when the city’s efforts to encourage LCDC to make a more reliable decision have fallen short.
If another party has appealed, the city should work with its legislators to make sure the department, commission and DOJ conduct a proper defense of the city’s decision regardless of any wishing that the regulations would have forced a different outcome or a reluctance to create precedence. This is not usually a problem, especially if the city builds good relations before it needs them. So do that.
When and if the city’s decision is finally affirmed, don’t do an end zone dance. Thank everyone for their hard work and thoughtful participation. If success seems too expensive, remember the cost of failure or starting over.
Always make the necessary disclaimers.
It is not affordable or even possible to have perfect information and perfect documentation. Add disclaimers (and findings) to establish that the city has done the best it could with the best information available.
This article is written to inform and entertain and as such should not be considered legal advice or relied on for legal procedures. It’s a wiki page. It will be edited to improve clarity and content. Always make the necessary disclaimers.