Urban and Rural Reserves: Oregon Court of Appeals Reverses and Remands LCDC Order

Today, in a 126-page, long-awaited opinion, the Oregon Court of Appeals reversed and remanded the Land Conservation and Development Commission’s order confirming the designation of urban and rural reserves by Metro and the counties of Clackamas, Multnomah and Washington.  Barkers Five, LLC v. Land Conservation and Development Commission (A152351).  The urban and rural reserve system was designed to manage growth in the Portland metropolitan area until 2060.

A synopsis of the decision can be found in today’s media release from the Court of Appeals.

Here’s an excerpt from the opinion (footnotes omitted):

This case concerns the designation of urban and rural reserves in the Portland metropolitan area that will guide its growth until 2060. Metro, in conjunction with Clackamas, Multnomah, and Washington counties, designated such reserves under a new process that had been established by the legislature in 2007, and, in June 2010, they submitted their designation to the Land Conservation and Development Commission (LCDC) for review. See generally ORS 197.626(1)(c), (f) (providing for LCDC review of urban and rural reserves). Ultimately, in August 2012–approximately one year after LCDC voted to acknowledge a revised submittal–LCDC issued its 156-page, single spaced acknowledgment order.

Twenty-two petitioners–including property owners, nonprofit and citizen 12 groups, and municipalities–seek judicial review of that order. In hundreds of pages of briefing, they raise assignments of error that are predicated on a record that consists of approximately 36,000 pages. Collectively, petitioners’ assignments of error range from fundamental methodological issues pertaining to LCDC’s understanding and application of the legal principles that govern the designation of reserves to the correctness of LCDC’s substantial evidence review of Metro and the counties’ designation of particular land as either urban or rural reserves. Simply stated, petitioners contend that LCDC’s order is unlawful in substance because, in reviewing Metro and the counties’ designation, LCDC misapplied the legal principles governing the designation of urban and rural reserves and circumscribing its review.

* * *

[W]e conclude that LCDC erred in four respects. In particular, LCDC erred in (1) approving Washington County’s misapplication of the rural reserve factors pertaining to agricultural land; (2) concluding that Multnomah County had adequately “considered” the rural reserve factors pertaining to Area 9D; (3) concluding that it has authority to affirm a local government’s decision where its findings are inadequate if the evidence “clearly supports” the decision; and (4) failing to meaningfully explain why–even in light of weighty countervailing evidence–Metro and the counties’ designation of Areas 4A to 4D (commonly referred to as Stafford) as urban reserves is supported by substantial evidence.

Accordingly, because LCDC’s order is unlawful in substance in various respects, we reverse and remand LCDC’s order for further action consistent with the principles expressed in this opinion. ORS 197.651(10)(a) (providing that “[t]he Court of Appeals shall reverse or remand the order only if the court finds the order is[,]” among other things, “[u]nlawful in substance”).

What effect this decision will have on the legislative efforts to craft a “grand bargain” regarding the urban and rural reserves designations and related urban growth boundary issues is unknown.  Stay tuned.

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