The years-long process to set aside urban reserves for growth in the coming decades is set for its next stage: The Oregon Court of Appeals.
But unlike the kabuki of the original designation of reserves, which started in 2008 and wrapped up in 2011, or the lengthy regulatory approval of the process, which took nearly two years, this act in the play is expected to be brief.
Some say too brief.
The law that created urban and rural reserves, Senate Bill 1011, also spelled out the process by which any reserves designations could be appealed. Under that law, the appeals briefs are due Sept. 25, the same day state regulators must submit the tens of thousands of pages of "record" that details how reserves were created in the first place.
The nine parties that are appealing the reserves designation won't be able to put the record into their appeal briefs.
"There's no time," said Ed Sullivan, one of the attorneys representing parties appealing the reserves designations.
Sullivan thinks it was designed that way – by Dick Benner, who retired Aug. 31 as Metro's chief land use lawyer.
"Dick Benner helped to draft it (SB 1011)," Sullivan said. "It was supposed to be made as bulletproof as possible to make the Metro order, if LCDC (the Land Conservation and Development Commission) agreed to it, immune from a challenge. It didn't quite get there – it couldn't get there, but it's made everybody scramble."
Six years in six paragraphs
Urban and rural reserves were created by the 2007 Legislature to streamline the process of designating land for urban growth boundary expansions. With urban reserves set aside around the region for the next 50 years of expansions, planners could look past soil quality when deciding which land to add to the boundary.
Senate Bill 1011 enjoyed widespread political support when it worked its way through the 2007 Legislature. Benner said it was designed so that planners and regulators would merely have to weigh and balance factors for urbanization, instead of using arbitrary criteria for choosing where to grow.
"That was accepted, really, by all of the major participants in it," said Benner, who has been working on Oregon land use issues since 1975. "Everybody locked arms when it was time to pass the statute, and came down to the Legislature and said 'Do this.'"
The process to designate the urban and rural reserves was inherently political. Leaders from Clackamas County were reluctant to see much sprawl, and even more hesitant to see Washington County get the bulk of the land for future growth. Washington County leaders were eager to leave land open for expansion in the coming decades, and grew frustrated by Clackamas County's efforts to limit growth options in the Tualatin Valley.
In 2010, the parties reached an agreement that was mostly upheld by the Land Conservation and Development Commission, which reviews and regulates the issues. Some parts of the Washington County plan were rejected, leading Metro and Washington County to negotiate a final agreement at a marathon meeting in 2011. That agreement was approved by the LCDC regulators, an approval that became official in August.
(March 16, 2011)
In the wake of that approval, nine parties have appealed the reserves: Some, like the Metropolitan Land Group and the Maletis family, want more urban reserves – preferably on land they own. Others, like 1000 Friends of Oregon and Save Helvetia, will call for rural reserves to be instituted to protect areas they feel shouldn't be urbanized before 2060.
The appeals process
When SB 1011 was drafted, it included some rules on how the Oregon Court of Appeals could approach the reserves case. It included timelines and spelled-out limits of review.
"It gives a lot of deference to LCDC, in that the statute says the court really can't second-guess the commission if they made a decision based on evidence in the record," said Roger Alfred, Benner's successor as Metro's land use attorney. "As long as the commission's decision is supported by evidence in the record, the court isn't going to re-consider that evidence. They're going to defer to what the commission decided."
Mary Kyle McCurdy, the attorney for 1000 Friends of Oregon, said that doesn't mean there aren't areas where regulators erred.
"Metro has to make an overall finding whether the decision, in its entirety, best achieves the purpose of the rural and urban reserves law, and we believe it's flawed in many ways," McCurdy said, "one of which is the inconsistent use of the attributes amongst the counties. So Washington County uses a way of looking at agricultural lands that's different from how Clackamas and Multnomah counties did it."
Carrie Richter, an attorney working with Sullivan on behalf of Save Helvetia, said there are still a number of issues the court will have room to look at, even with the restrictions of SB 1011.
"I think the court is going to be particular about the connection between the conclusion LCDC draws and the facts," she said.
Will it get there?
It's possible that some of the nine appeals could drop off before the court hears appeals this winter. McCurdy said settlement talks are ongoing to try to keep the issue out of court.
"We've always thought a settlement of these issues is possible, at least amongst a lot of the interested entities, and would be better for the region," she said.
But even if 1000 Friends and Metro settled, any party who wasn't pleased with the settlement could go forward with litigation, or any county could reject the settlement.
Through a staffer, Metro Council President Tom Hughes said he would not comment on the potential for a settlement because of pending litigation.
(Aug. 13, 2012)
(June 14, 2012)
(Aug. 19, 2011)