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It Ain't Easy Being Simple

Urban growth OregonFollowing several LUBA and appellate court decisions that invalidated urban growth boundary (UGB) amendments in McMinnville and Woodburn (twice), the 2013 Oregon legislature enacted HB 2254, legislation that purported to “simplify” the UGB amendment process by creating an alternate path for local governments outside the Portland Metro Area. However, LCDC’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 over 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 January 1, 2016 is fast approaching and 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.

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; RAC members and the assumptions proved to be inaccurate, requiring more time to redraft the rues. Time simply has run out, as LCDC saw incomplete draft rules in its Oct. 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 Dec. A further draft of the rules and goal amendment will be released around Nov. 20th in advance of the Dec. 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 provided 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 attempting 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 is 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 LCDC in Dec., however 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.

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