A Seductive Solution: The Grand Bargain and the Future of Oregon Planning

Vol. 37 No. 4

By

Edward J. Sullivan and Carrie A. Richter are owners in the Portland, Oregon, office of Garvey Schubert Barer. Sullivan is a Past Chair of the Section.

Editor’s Note: Following an unsuccessful attempt to do so under Oregon law, the Oregon legislature recently acted to adopt amendments to the Portland Metropolitan urban growth boundary, as well as the prospective designation, over a 50-year term, of certain lands as “urban reserve,” which may be considered suitable for expansion of the urban growth boundary, and of other lands as “rural reserves” to be protected from development for 50 years following designation. Ed Sullivan and Carrie Richter raise some of the complex political and legal issues and related planning dilemmas underlying this legislative “Grand Bargain” solution following the remand of state approval of urban and rural reserves.

The train of events from the release of the Oregon Court of Appeals decision in Barkers Five, LLC v. Land Conservation and Development Commission, No. A152351, 2014 WL 662329 (Or. Ct. App Feb. 20, 2014), to the resolution of that case in the Oregon legislature has been an interesting one to follow. The court of appeals remanded the decision, which followed four years of public hearings and actions to establish urban and rural reserves in the Portland area. Following various stages of shock, denial, and anger, the development community, Metro, and Portland area local governments changed their position from viewing the problem as a strictly regional one that the legislature should not enter, to one in which such entry was invited.

In enacting the resolution of this case in the so-called “Grand Bargain,” the legislature imposed a solution in one particularly contested part of the region—Washington County—rather than have the reserves decision reconsidered as the court had commanded. Other deficiencies in Multnomah and Clackamas Counties were left for the Land Conservation and Development Commission (LCDC), those counties, and the region to sort out. Within days, the legislature expanded the urban growth boundary (UGB), as well as the urban and rural reserves in Washington County and declared victory to the applause of much of the development and business community and local governments.

Expanding the UGB is important, as urban-type development is allowed only within that boundary and significantly affects the price of real estate. Similarly, placing land in an urban reserve presumptively puts that land first in line for addition to the existing UGB for urban development over a 50-year period. And placing land in a rural reserve makes it likely that such land will not urbanize over the next 50 years.

The legislature, local and regional governments, and public interest groups characterized these actions as nothing more than a mediated settlement with the parties to the lawsuit resulting in an outcome that was consistent with initial predictions. This does not change the fact that it was the legislators, rather than local governments, drawing colored lines on a map. Often these supplicants and the legislative leaders will assert that the UGB and reserves processes are just too complex and need to be simplified. Yet these parties might consider their own roles in shaping these processes. Instead of providing a checklist of objective requirements for expanding the UGB, the legislature left in place a system of unquantified “factors” to apply so as to give decision-makers the “flexibility” to reach whatever decision they wished. The legislature and LCDC used a similar system of applying “factors” to the reserves process for the same reason.

In addition, instead of allowing the Land Use Board of Appeals (LUBA) to review these decisions, the legislature specifically directed that review to LCDC, a government-friendly forum that did not work as hard to consider those pesky legal questions that occur in making land use decisions. Both left it to the court of appeals to weigh the reserves decision against the criteria and were duly shocked and appalled with the result. It is far easier to blame the process and other participants than to fess up to admitting to the source of the complexities in that process.

In reality, there was an attempt to game the process (through an assertion of “flexibility” that was designed to place a patina of respectability on the result) to justify putting certain lands over other lands into urban reserves than was justified, regardless of what the law said, because some of the participants wanted that result.

The real problem created by the “Grand Bargain,” however, is the precedent it sets. While both the UGB and reserves processes are difficult (and are supposed to be difficult as the decisions are significant and long-lasting), on what basis can the legislature turn down similar requests for imposition of a legislative solution in Woodburn, Bend, or McMinnville, which face similarly complex decisions? Will the watchdogs and the environmental community continue to be coy about the application of raw political power to make local planning decisions on the ground?

The quickest and easiest decision is not always the best one. The legislature may yet rue the day it stepped in to impose its will in the reserves case. It will be difficult to deny the second supplicant, much less the third, fourth, and others.

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