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In early September, the Oregon Court of Appeals reversed and remanded a decision by the Oregon Land Conservation and Development Commission (LCDC) to uphold a mutual understanding among Metro, Clackamas County, and the cities of Tualatin, Lake Oswego, and West Linn to delay development in the Stafford area until the end of 2028. Some background is necessary to appreciate the significance of the court鈥檚 decision.

The affected area, called the Stafford urban reserve, is within Clackamas County but currently outside the limits of the three affected cities that border it. It is also outside the boundaries of Metro 鈥� the planning agency for the Portland region. The area is thus planned and zoned for rural uses and cannot urbanize until it is formally included within the regional urban growth boundary (UGB), which is administered by Metro. Nevertheless, Metro and Clackamas County have designated Stafford as an 鈥渦rban reserve,鈥� which means that the area 鈥� and other such reserves in the Portland region 鈥� are generally first in line for inclusion in the regional UGB and thus can be urbanized following city annexation. Of course, the potential and timing for urbanization has a considerable impact on the value of the affected land.

Metro views the housing capacity of its UGB periodically by way of an Urban Growth Report to determine whether there is a shortfall of residential land. If there is a shortfall, Metro must decide whether it should require density increases within the existing boundary (which it claims its charter prevents it from doing in existing residential areas) or extend its UGB, primarily via its urban reserve areas. Metro also requires a 鈥渃oncept plan鈥� from those cities that seek to add land from the urban reserve to assure that land will be provided with urban services from a willing municipal services provider. Because Metro will not ordinarily undertake an addition to the UGB without a city-initiated concept plan, cities effectively control the UGB amendment process.

In the Portland-metro region, planning and land use regulation are significantly influenced by a system of intergovernmental agreements (IGAs) by which, among other things, planning priorities are set. In this case, there are two sets of IGAs that deal with the Stafford urban reserve area. Metro, the county, and the three cities agreed that no part of the Stafford urban reserve will be incorporated into Metro鈥檚 Urban Growth Boundary unless the city that will be responsible for annexing that part of Stafford develops a concept plan for it. This planning measure is consistent with Metro鈥檚 general approach for UGB amendments. The second set of IGAs was among the three affected cities, which placed a temporary moratorium on their adoption of concept plans for the Stafford area and on any of these cities promoting or supporting any expansion of the UGB into any part of Stafford until the end of 2028.

Marks, a landowner within the Stafford area, apparently hoping for earlier urbanization consideration, sought an 鈥渆nforcement order鈥� from LCDC as his tool to do so. That order may be used if there is a 鈥減attern or practice of decision-making鈥� that violates the requirements of Metro鈥檚 Regional Framework Plan (RFP). Marks claimed that, with respect to the concept planning process for the Stafford Area, the preclusion of consideration of the whole of the urban reserve by the adoption of the two sets of IGAs violated the RFP. Because the decisions of LCDC acknowledging the five-party agreement in 2018 and of the three-city adopting IGA in 2019 were long past, Marks could not challenge them; however, he asked for the enforcement order by claiming that the cumulative effects of the IGAs delayed urbanization constituted a pattern or practice of land use decisions that had 鈥渟ignificant impacts鈥� on the region, invoking case law that allowed for review of actions that may not be 鈥渓and use decisions鈥� that were reviewable in themselves.

The LCDC hearings officer, who heard the case for LCDC and made a recommended decision in accordance with LCDC rules, agreed with Marks on that point, but found no violation of the RFP on the merits of the decision. But LCDC never reached the merits of the decision, finding instead that there were no significant impacts from the pattern of decision-making arising from the IGAs, as they did not 鈥渃reate an actual, qualitatively or quantitatively significant impact on present or future land uses.鈥� Marks then appealed LCDC鈥檚 significant impacts ruling to the Court of Appeals, so that he could make his arguments on the merits.

The term 鈥渟ignificant impact,鈥� as a threshold for securing agency intervention, is not in the Oregon statutes, but rather arises from case law as a judicial means of providing for review of decisions that do not qualify as statutory land use decisions (such as permits, zone changes, or adoption or changes to comprehensive plans or land use regulations), but have a consequential effect on planning or land use regulatory activity. The term was first formulated by the Oregon Supreme Court in 1977, before the current LUBA review system was enacted and before violation of a pattern or practice of decision-making was a ground for an LCDC enforcement order.

Nevertheless, the Oregon Court of Appeals found that LCDC must reach the merits of Marks鈥� allegations, as there were sufficient cumulative effects from the IGAs for such scrutiny. There may be some logic for basing an enforcement order on a series of violations of the goals or the RFP, none of which individually may be consequential, but cumulatively may constitute violations. The question is now whether the parties engaged in a 鈥減attern or practice of decision-making that violates a requirement of the regional framework plan,鈥� which may not involve the significant impacts issue at all.

Within the land use legal community, the 鈥渟ignificant effects鈥� test is seldom used and rarely successful, precisely because it is not of statutory origin and its provenance precedes the current system for review of land use plans, regulations, or actions.

Marks鈥� case may be unsuccessful on the merits; however, in the absence of further judicial review, the resurrection of the significant impacts test as a non-statutory basis to challenge plans, land use regulations, and actions, may open the door to challenges of IGAs or other government actions that do not fit within the statutory definition of a 鈥渓and use decision.鈥� But there may be no need to use the 鈥渟ignificant impacts鈥� tool at all because the decision-making at issue need not be limited to 鈥渓and use decisions,鈥� but may extend to other decisions that may affect compliance with the goals or the RFP. Stay tuned to LCDC鈥檚 decision on remand.

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.