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In Oregon land use law, acknowledgment can be a powerful shield. Acknowledgment occurs once a local government adopts a plan or zoning code amendment deemed to comply with the Statewide Land Use Planning Goals. Once a plan or land use regulation is 鈥渁cknowledged,鈥� land use decisions made applying them need not be independently evaluated against the goals. This makes sense; determining compliance with a goal should occur when the plan or regulation is adopted and should not need to be revisited again and again.

This is not just an efficiency measure, for 鈥渁cknowledgment鈥� serves to protect local governments and applicants 鈥� insulating later decisions from goal challenges. In this way, a developer need not revisit goal-related obligations, like transportation adequacy or housing supply questions, to obtain a subdivision approval because compliance was established when the applicable zoning regulations were first adopted. In other words, those applicable standards are acknowledged. Normally, zoning regulations and actions consistent with an acknowledged plan are shielded.

However, acknowledgment as a shield is not limitless. For example, acknowledgment does not insulate development from compliance with state statutes, which continue to apply independently to any decision. Acknowledgment also does not exempt continuing compliance with Department of Land Conservation and Development (DLCD) adopted administrative rules. The latter point is more than passing strange because the administrative rules are supposed to implement the broad statements of land use policy set forth in the goals.

In a recent decision, DLCD v. Clackamas County, the strength of the 鈥渁cknowledgment鈥� as a shield was tested and its shortcomings regarding the administrative rules made clear. Goal 14 requires that urban uses be located within urban growth boundaries; thus, locating an urban use outside of an urban growth boundary requires a Goal 14 exception. To comply with the state鈥檚 land use regulations, Clackamas County took a Goal 14 exception in the 1980s designating hundreds of acres for rural residential in its comprehensive plan. The rural residential plan designation was implemented by three different zoning designations with varying minimum lot sizes 鈥� 10-acre minimum, 5-acre minimum, and 2-acre minimum. This arrangement was ultimately acknowledged.

In 2000, lack of clarity about what constitutes an 鈥渦rban鈥� or a 鈥渞ural鈥� residential use troubled the Land Conservation and Development Commission (LCDC), as those terms are not defined in Goal 14, which led the LCDC to adopt the 鈥淩ural Residential Rule.鈥� Under that rule, new or amended comprehensive plans and regulations that were acknowledged before the rule was adopted were deemed to comply with Goal 14, but after 2000, a county may not amend its 鈥渞equirements for minimum lot or parcel sizes,鈥� without taking a Goal 14 exception. In 2002, as part of periodic review, the LCDC acknowledged the county鈥檚 rural plan designation with the three zoning designations set out in the original acknowledged plan.

Fast-forwarding to the facts giving rise to the DLCD case, the county approved a request to rezone 111 acres located about one mile south of the city of Oregon City from a 10-acre category, allowing for 11 lots, to a two-acre category, allowing for a future subdivision of up to 55 lots. The DLCD appealed the county decision to the Oregon Land Use Board of Appeals (LUBA) contending that by allowing a smaller minimum lot size the county violated the Rural Residential Rule. The county and the applicant argued that the rule applies only to changes in the zoning ordinance text and not to its map that otherwise complies with the rural residential designation in the comprehensive plan (which did not have any lot sizes). Further, they argued that, because the comprehensive plan and the two-acre zoning designation had been acknowledged to comply with Goal 14, the DLCD was foreclosed from raising the rule now.

Siding with the DLCD, LUBA explained that the term 鈥渞equirements鈥� is not limited solely to the text of the zoning ordinance; the county鈥檚 zoning map is also part of that ordinance. Legislative history surrounding the adoption of the rule supported the DLCD鈥檚 reading that any 鈥渦pzoning鈥� in these circumstances, whether through the zoning map or text amendment, required a Goal 14 exception.

On review by the Court of Appeals, the county and the applicant renewed their interpretive challenges but also doubled down on their acknowledgment defense, asserting that the DLCD could not revisit its blessing of the county鈥檚 zoning scheme from 2002, after the rule was adopted. Despite this general principle, the court found that as a post-acknowledgment plan amendment, an application is subject to a full re-evaluation for compliance with the goals that opened the door to this question. More importantly, the court pointed out that administrative rules can require consideration of goals irrespective of acknowledgment and therefore, it cannot serve to insulate the county from compliance with the rule. Therefore, a Goal 14 exception will be required for this zone change to occur.

This case stands not only as a stark reminder of the limits of the acknowledgment defense, but it also ensures that the distinction between urban and rural uses remains meaningful. This question is not merely academic; it has practical consequences as well. Allowing all of Clackamas County鈥檚 hundreds of acres of 10-acre minimum lot zoned land to increase development densities fivefold would have a tremendous impact on the nearby urban facilities necessary to serve this development. Support for suburban development in the area comes from the commercial and employment opportunities within the Metro region served primarily by motor vehicles, thus creating additional congestion, air pollution and road maintenance costs. These same concerns formed the backbone justification for requiring the establishment of urban growth boundaries. Those same concerns still resonate today.

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. She represented the city of Oregon City in this case as an amicus before the Court of Appeals. Contact her at 503-972-9903 or [email protected].

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