The Metro Council's final sign-off on the Columbia River Crossing is now weeks away, after TriMet submitted its application for changes to the region's land use planning on Friday.
The sign-off, called the Land Use Final Order or LUFO, is a remarkably streamlined bit of Oregon land use law, making it easier for a project to move past inevitable land use appeals. But it also forces project opponents to scramble if they hope to use Oregon's land use review as a means to try to derail the project.
Metro's last major approval
Columbia River Crossing opponents have been working for months to get a better grasp on what the LUFO is. But few doubt its significance.
The resolution set for the Aug. 11 vote does two key things — it immediately amends the land use planning on the Oregon side of the Columbia River Crossing to allow for the project's construction, and authorizes Metro Council President Tom Hughes to approve the project's environmental impact statement.
If the resolution passes, it also starts a clock on an appeals process that moves at a swift pace. Opponents of the Columbia River Crossing would have 14 days to appeal the passage of the LUFO to the Oregon Land Use Board of Appeals. Once the board rules, further appeals go straight to the Oregon Supreme Court. The appeals process could be over in months.
That would seem to be good news for Portland region residents who have been waiting for new bridges over the Columbia River for decades; internal polls conducted for candidates for Metro Council President in 2010 showed support for the project around 70 percent.
But it puts pressure on key project opponents. Many have been unwilling to talk on the record about the order, citing the likelihood of litigation if the Metro Council approves the LUFO. Some, though, have signaled that the order is the wrong way to get land use approval for the project.
Attorney Michael Lilly, representing the Plaid Pantries convenience store chain, wrote to both Metro and TriMet on July 13, saying the agencies overstepped the constraints of the LUFO process by using it to approve the new Interstate Bridge.
"The state legislature intended that the LUFO statute… be used for the South North Light Rail Transit, not for a massive new bridge project crossing the Columbia River," Lilly wrote.
Metro staffers referred to the recommendations from a regional LUFO steering committee, which said the Metro Council should approve the order. The committee included Portland Mayor Sam Adams, Metro Councilor Rex Burkholder and other regional elected and appointed officials.
What's a LUFO?
Oregon land use law can be Byzantine on its good days. Statewide planning goals, overlapping jurisdictions, well-organized advocacy groups and a rigorous appeals process means major changes to existing land use planning can take years to implement.
Planning for a 20 mile long light rail corridor wouldn't just make one major change to planning rules. It would make many. The South North light rail project, as it was called in the 1990s, crosses five cities, two counties, touches three interstate highways, and involves the Oregon Department of Transportation, Metro and TriMet.
House Bill 3478, passed in 1996, put the Metro Council in charge of adopting the land use rules along the light rail corridor and told the Oregon Land Conservation and Development Commission to write criteria for Metro to use in deciding whether to approve the LUFO.
With Metro as the sole local government body deciding the land use review and amendments, appeals would be streamlined.
Staff from Metro and the Department of Land Conservation and Development drafted 10 standards that would have to be met for LUFO approval; the land commission adopted the criteria four months after HB 3478 was passed.
Passed three times
Because the LUFO is broadly about projects connecting Oregon City to the Columbia River, the Metro Council has already used it three times: for the Yellow and Green MAX lines, as well as for the Milwaukie light rail project. Metro attorney Dick Benner said he doesn't think any of those orders had been appealed.
Benner was the director of the Department of Land Conservation and Development in 1996 when the department sent its proposal for the LUFO approval criteria to the land commission. The 10 benchmarks are fairly straightforward — other involved governments and the public must be consulted, adverse impacts must be identified and mitigated, cultural resources must be protected and various routes must be considered.
"It essentially adopts a map, that if the project's built within this footprint, it can move forward," said Andy Cotugno, a Metro policy advisor and the agency's Columbia River Crossing expert. "The findings are a statement of how that meets the land use criteria."