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Reserve designations for the Portland-metro region may soon be decided – for the moment at least.

State law provides for a consensus-built process at the local and regional levels to designate urban and rural reserves based on consideration of “factors” identifying sufficient lands to accommodate population and employment growth for the next 50 years that will also result in a balance that “best achieves” certain values. Public meetings to apply these rules dragged on for years, and the written record from those proceedings contained tens of thousands of pages.

At those meetings, participants like Save Helvetia and 1000 Friends of Oregon repeatedly asserted that Washington County did not apply the rural reserves correctly. They explained that the rural reserve factors did not include consideration of the availability of water or the extent to which lands had been parceled. The failure to apply the rural reserve factors properly allowed Washington County, with the help of the city of Hillsboro, to designate for urban reserves some of the highest quality farmland in the region.

As part of its mammoth, 126-page decision, the Court of Appeals reversed and remanded the reserves decision largely based on this mistake by Washington County. It found that consideration of a number of factors is required; these include soil quality, whether the land has a history of sustaining long-term agricultural activities, and whether the lands are threatened by urbanization.

Most of the farmland in question satisfied these rural reserve factors; however, Washington County, under pressure to find even more land able to be urbanized, created some additional “inexact surrogates” – what the court labeled “pseudo factors” – with which to distinguish such lands. The county also chose to use an outdated soils report over one more recently prepared by the Oregon Department of Agriculture that evaluated the suitability of soils and included consideration of irrigation rights. Washington County overreached. It was caught trying to reverse-engineer a system to achieve a desired result.

Now it appears that reserves will be determined by the Legislature, after a handful of negotiated meetings occurring over one weekend during which the consensus was built around a small number of development interests, land use watchdogs, and local government representatives. This “grand bargain,” known as House Bill 4078, was introduced initially by homebuilders asking that the Legislature expand the urban growth boundary consistent with efforts by the city of Hillsboro to do so, relying on the reserves decision, which was then on appeal.

In its latest iteration, HB 4078 designates urban and rural reserves, parcel by parcel and tax lot by tax lot. True understanding of the impact of this bill requires reference to a map, which was not available when we wrote this commentary.

Although the Legislature has a long-standing reputation for super-siting uses or creating one-off legislation to help particular landowners, this is one of the first times that the Legislature has gone so far as to apply zoning to multiple parcels. Again, this is certainly not the first foray of the Legislature into land use, but we should not be surprised when it turns out that this is also not the last time either.

These decisions raise some important considerations. First, in response to those who say that this process took too long, planning how we will grow over the next 50 years is a complicated and time-intensive process.

Second, using discretionary terms like “consider,” “factors,” “areas” and “balance” within the legislation requires a high level of explanation and articulation – and that resulted in the delay. We know now that although using such squishy words may make decision-making more politically palatable, that kind of drafting can also take just as long as a more rigid prioritization scheme.

Third, the Court of Appeals analysis is based largely on the legislative record created at the time of adoption of the reserves laws. If adopted, HB 4078, setting the course for Metro-area growth, will include very little in the way of legislative findings or explanation of why particular designations were imposed or how boundary expansions occurring after adoption occur.

Finally, neither the reserves process nor the court’s decision demonstrates that the Oregon land use system is “broken,” as improvidently characterized by a local newspaper. The failures were the products of bullheaded pride.

Some political leaders desired inclusion of certain lands regardless of the direction dictated by the process. Some planners were only too quick to accommodate. And some lawyers argued that the criteria were sufficiently flexible so that just about any decision would pass muster.

While the use of factors, rather than criteria, and the proliferation of inexact terms made the court’s decision much later and longer than predicted, the court did not get it wrong. More importantly, the region did not get it right. Perhaps this experience may make the parties more cautious next time.

For the record, we represented Save Helvetia, a coalition of farmers, business owners, concerned citizens, neighbors and residents working to protect the Helvetia community and its neighboring agricultural lands.

Edward Sullivan is an owner in the Portland office of Garvey Schubert Barer. Contact him at 503-553-3106 or at [email protected].

Carrie Richter is an owner in the Portland office of Garvey Schubert Barer. Contact her at 503-553-3118 or at [email protected].