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Every legislative session, it is not uncommon for legislators to endorse one-off land use designations for pet projects, preempting state or local government rules in order to serve particular ideologies or constituents. Many of these ideas don鈥檛 make it into law; however, unfortunately, some do.

Some well-known examples include authorization for a high-speed raceway in Morrow County or the 鈥済rand bargain鈥� in which the Metro urban growth boundary (UGB) and urban and rural reserves designation were established for Washington County 鈥� in that case providing for a metes and bounds level of detail that is now in state law. Last month, the Legislature went one step further by conferring to the governor the unilateral power to relocate the UGB in the hopes of making Oregon more attractive to the technology sector.

With overwhelming support, the Legislature passed Senate Bill 4, known as the Oregon CHIPS Act, heralded by many as the way to make Oregon competitive in attracting and maintaining its well-known semiconductor industry. According to the governor鈥檚 office, in addition to an existing industrial support program, the bill dedicates $190 million to develop a grant and loan program to support semiconductor businesses looking to expand in Oregon, including $10 million to help communities prepare land for manufacturing sites and $10 million for a University Innovation Research Fund that will help public universities secure federal research grants. Although the efficacy of these fiscal incentives is beyond the expertise of these authors, the implications for land use fall squarely within our wheelhouse.

Under the act, the governor may, by executive order as part of an incentive package to attract activities that 鈥渞elate to the semiconductor industry, advanced manufacturing or the supply chain for semiconductors or advanced manufacturing,鈥� bring lands within an existing UGB. The required relational degree of that connection is not clear.

The governor may designate up to a maximum of eight sites: two that exceed 500 acres and six that are smaller than 500 acres. For comparison purposes, the existing main Intel headquarters in Hillsboro is 460 acres and Portland鈥檚 downtown commercial core is 640 acres. Qualifying lands include those that are contiguous to an existing UGB, entirely within three miles of an existing UGB, and not within an acknowledged urban and rural reserve designation (except for 1,700 acres of rural reserves in in Washington County particularly identified as available for inclusion).

The bill provides little in the way of participatory rights and procedural protections and gives no consideration to the loss of farm or forest lands or impacts to nearby resource-related activities. Before proceeding with an executive order, the governor must hold a single public meeting within the impacted city coupled with a 20-day public comment period; however, there is no provision for any advance notice.

Although the bill does call for a determination that existing lands within the UGB would not meet the needs of the specific project, this gubernatorial determination is 鈥渇inal and not subject to appeal.鈥� In a move that is unprecedented in Oregon land use, the bill sets forth a singular right to appeal an order directly to the Oregon Supreme Court whereby review 鈥渟hall be given priority over all other matters.鈥� It is not clear what arguments might be recognized by the court as valid basis for seeking such review; the legislation does not include any contemplation of farmland, natural resource or public infrastructure impacts resulting from such an order. It is simply an ipse dixit (because I said so) determination.

Within six months after the executive order is entered, local governments may amend their comprehensive plan or land use regulations to allow the newly added UGB lands for industrial uses after a single public hearing without consideration of any otherwise applicable state law or statewide land use goal. Assuming that it is delivered to the Land Conservation and Development Commission within 14 days after passage, the ordinance amendments shall be deemed acknowledged (that is, compliant with the state goals, no matter the extent of their deviation from those goals).

This arrangement may work out just fine. Presumably Gov. Kotek supports the farmers who are the workhorse of Oregon鈥檚 economy and will likely wield this remarkable, unchecked power judiciously. However, given the bloodbath that most often precedes UGB amendment decisions, it is easy to envision things turning out quite differently.

First, if a proposal does not receive semiconductor financial assistance under the bill, the governor must remove the lands previously designated, regardless of any investments made by public or private actors. The ramifications of a boomerang UGB are difficult to imagine. The bill provides that the UGB designation authority expires on Jan. 2, 2029, two years after the expiration of Gov. Kotek鈥檚 current term. A new governor may be more open to such changes and possibly less responsive to community concerns.

When it comes to land use, the genie rarely goes back into the bottle, meaning that this authorization may well be extended after the current 2029 expiration date. Interest groups may like the idea of avoiding the state鈥檚 land use program and take a shine to 鈥渟upersiting鈥� or prioritizing their own pet projects. It is often the case that unique review procedures, once limited to a narrow set of circumstances, are easily expanded and applied to other activities.

What may be more likely is that this will turn out like the Morrow County speedway 鈥� a dream written into law that never materializes. That may be the best hope for farmers outside of rural reserve areas who are left now keeping their fingers crossed that the chips don鈥檛 fall nearby. As the state鈥檚 land use program celebrates its 50th anniversary, it finds itself under attack from those who declare they support that program, but just want an adjustment to accommodate the latest felt need. God save us from our friends.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at [email protected].

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither author nor the 91视频 guarantees the accuracy or completeness of any information published herein.