Edward J. Sullivan has a B.A., St. John’s University (N.Y.), 1966; J.D., Willamette University, 1969; M.A. (History), Portland State University, 1973; Urban Studies Certificate, Portland State
University, 1974; M.A. (Political Thought), University of Durham, 1998; Diploma in Law, University College (Oxford), 1984; LL.M., University College (London), 1978.
Edward J. Sullivan has a B.A., St. John’s University (N.Y.), 1966; J.D., Willamette University, 1969; M.A. (History), Portland State University, 1973; Urban Studies Certificate, Portland State
While attitudes may be changing slowly, Americans tend to put more faith in land use regulation than in comprehensive planning for their future. Zoning regulations provide for concrete limits on land use, while plans are often deemed advisory or, when legally effective, are cast in broad platitudinous policies that can be manipulated to suit multiple political purposes. Plans, however, may serve as an important and binding means of predicting the future when they provide for a description of future, anticipated land uses, through a map or otherwise, of land use allocations. These allocations achieve credibility when they have an adequate factual basis. One of the principal building blocks of such a factual base is an informed prediction of future population for a given jurisdiction over a given timeframe. While predictions of future residential living arrangements, employment and leisure patterns, transportation alternatives, and commercial and natural resource spatial allocations are difficult to make over a long period (especially for smaller communities), nevertheless, they must be made on a long range basis in order to plan for infrastructure needs. Even beyond whatever time is designated, however, planning must also provide tentative answers for policy makers on an even longer-term basis.
Demographic and population statistics in the United States underscore the tentativeness of population forecasting as a planning tool.1 The average size of both the family and the household has decreased, though the number of households has increased, and total population is heavily affected by migration patterns.2 Nevertheless, there are established protocols and recognized methodologies for population forecasting that allow for increased confidence over the long term with regard to these matters, as well as with employment and leisure patterns. These forecasts already have importance under the diverse planning regimes of the several states. The federal government allocates funds for various state and local projects, inter alia, on the basis of population.3 Similarly, many states distribute revenues to local governments based on their respective shares of population.4 Further, population is not irrelevant to decisions involving the sharing of capital expenses.5
The thesis of this article is that the accuracy of population forecasts will become even more necessary to spatial and infrastructure planning in the United States, so confidence in the methodology of those forecasts is not only important for allocation of public monies, but also in the planning for public and private infrastructure needs as well as resort to private markets to fund these capital needs. Oregon state law, for example, requires local governments to use population forecasts to ensure an adequate supply of buildable lands for needed housing and economic opportunities in urban growth boundaries. As planning for, and regulation of, such diverse areas as air and water quality, transportation, disaster management, economic policy, and housing show, there is an increasing need to draw decision making to a centralized place, at least for more important decisions. It is likely that planning will be no different — how many people will live, work, travel, or shop in a given area is information that is necessary to meet the needs of those people. Of course the downside of a centralized method and place for population information (where these methodologies and forecasts themselves become essential and enforceable parts of the state planning process) is the loss of more localized community planning autonomy. The issue with which Oregon has struggled is determining the proper balance between local autonomy and the needs of the state in undertaking coordinated land use planning.
This article deals with the experience of Oregon in dealing with population forecasts in land use. Oregon requires each local government to adopt a binding comprehensive plan, supported by an “adequate factual base,” which has long included population forecasts. Diversity in forecasting methodologies, however, combined with differing result-oriented attitudes by local governments, led to a point in which the cacophony of forecasts threatened to undermine the state’s land use program.6 After attempts to resolve the crisis through half-measures failed, the state enacted a regime that now provides a modicum of confidence with uniform, binding population forecasts that provide the basis for long-term planning efforts.
II. Planning “Coordination” under Senate Bill 100 (1973)
Space limitations preclude a complete description of the Oregon planning system here.7 Suffice it to say that the Oregon system is based on requirements of mandatory, binding planning by the two general-purpose local government forms in the state, i.e., cities and counties, and by Metro, the elected regional government for the Portland urban area within Oregon.8 Those plans control the regulatory and proprietary actions of all public bodies and private persons except for the federal government9 and those plans themselves must be in accordance with specified statewide policies (“goals”)10 established by a state body, the Land Conservation and Development Commission (LCDC).11 The state has also provided for dispute resolution mechanisms for determinations as to whether local plans and regulations meet state goals or other legal requirements.12
A number of these goals utilize population forecasts, adding to their importance. Among many other requirements, Goal 2, Land Use Planning,13 requires that local comprehensive plans, the basis for land use regulations and actions by public agencies, have “an adequate factual base.”14 Goals 9 and 10 require projections of future land needs to accommodate respectively commercial, employment, and other urban economic development15 and of housing rental and ownership needs for the next twenty years.16 Goal 11 deals with coordinated public facility planning.17 Goal 12 deals with provision of adequate and safe transportation facilities.18 Finally, Goal 14 establishes and maintains a planning process to accommodate urban land needs over a rolling time horizon.19 Taken together, Goals 9, 10, and 14 require adequate supplies of buildable land in urban growth boundaries; Goals 11 and 12 require that these supplies of land have adequate infrastructure to support urban levels of development. Adequate, coordinated population projections are determinative to demonstrating compliance of local plans with these goals.
Oregon’s system utilized a federal-type planning system in which a state agency formulated and enforced state land use policies, but in which local governments (cities and counties) adopted plans and land use regulations and took actions consistent with the state goals, plans, and land use regulations. On the sub-state level, plans for various areas of the state were not drafted wholly independently. State law required that a comprehensive plan be “coordinated.”20 Goal 2 required that plans of a local government be “coordinated” with those of other affected public and private agencies.21 Senate Bill 100 provided that, except for Portland (and, now, the Portland urban area), county governing bodies would review and coordinate plans within their respective boundaries — for their own territory and for cities and special districts within the county.22
Thus began a bifurcated system for coordination in which the Portland urban area was hived off from the rest of the state to deal with urban issues on a regional basis, while the remainder of the state would be under a system by which counties would undertake planning coordination.23 The judgment call as to whether a plan was “coordinated” and thus accommodated the needs of participants was a judgment call left to LCDC, but only after the county had made an initial determination that the plan was, or was not, “coordinated.”24 Thus, the county had the appearance of power through its oversight authority pursuant to its “coordinator” role. As will be evident, the real value of that appearance of power was illusory and was mishandled by some counties in times of intra-governmental conflict. As to the counties’ role related to population forecasting, many cities became frustrated with Oregon’s planning program when counties either did not act or acted in a way inimical to the interests of cities.
III. Forecasting Conflicts
Given the traditional rivalry among public agencies, it was inevitable that the burdens and benefits of coordination, especially with respect to population forecasting, would boil over into conflict, for under the state planning program as it existed before 2007, population forecasting was equated with growth policy choices. Three examples will suffice:
A. Douglas County and the State of Oregon
For much of the twentieth century, Douglas County had benefitted from an arrangement with the federal government over revenues from timber harvesting on “O&C Lands” — good timberlands once granted to a railroad but later reverted to the federal government.25 Sensing the possible end of these funds, Douglas County turned to strategies to enhance its property tax receipts and undertook fairly optimistic views of future growth, and thus future land needs. The legislature had recently revised statutes relating to population forecasting in 1995,26 discussed below, and the County used these statutes aggressively to take an optimistic view of population growth by amending the population element of its plan in order to increase the amount of urban lands available for urban uses.
The Department of Land Conservation and Development challenged the County’s efforts to amend its population element, to forecast a 14-53% increase in population over a twenty-year period, without specifying at what point in that range the County chose to rest its forecast.27 The Oregon Land Use Board of Appeals remanded the case on two grounds: (1) the failure of the County to coordinate adequately with the State, which had raised questions on the County’s forecast and the County’s denial of DLCD’s extension request to reconsider that forecast in the light of DLCD objections,28 and (2) the absence of an adequate factual base for the County forecast.29 On remand, the County’s forecast was again challenged, but was upheld in all respects except for an element based on household size.30 The County survived challenges based on alleged lack of coordination31 and lack of an adequate factual basis, specifically including projections relating to employment growth, in-migration, and city population growth, all of which LUBA found to be adequate.32 The decision was remanded, but only because the County ascribed a 2.6 household size to retirees;33 otherwise, the County’s forecasts would have prevailed.
B. St. Paul, Oregon
The City of St. Paul in Marion County, the county that also contains the state’s capital, Salem, was not enthusiastic about growth.34 St. Paul proposed rather pessimistic population forecasts and contended that it had a limited infrastructure to accommodate new growth (which was within the power of the electorate to change so as to allow for more growth) and cited its policy of preserving the surrounding agricultural lands.35 Marion County, acting as coordinator, ultimately deferred to the City’s wishes and assigned it a growth rate much lower than that of other cities in the county and of the county itself.36
Under existing law, Marion County could have chosen not to make a decision at all, and instead allow outdated population forecasts to be the basis for planning in the county, thus not allowing for expansion of urban growth boundaries (UGBs) to accommodate actual growth. While there are theoretical downsides to failing to coordinate, due to DLCD’s enforcement powers,37 the expense and the potential political backlash make it unlikely that DLCD would decide to enforce.38
C. Union County, Oregon
Tipperman v. Union County39 demonstrates the perils of contested population forecasts under legislation that merely required county “coordination.” In this case, there were multiple interests that vied for a fairly small projected population growth for this eastern Oregon county.40 LUBA rejected a number of allegations of error under the statewide planning goals,41 but did sustain certain objections relating to forecasts based on building permits and employment data.42 The County’s decision was thus remanded.43
The lesson for coordinating counties was that making a decision without consensus of all jurisdictions was expensive and both administratively and politically perilous. The County could have accepted Tipperman’s criticism and revised its population forecast; alternatively, it could have rejected that criticism and explained why the comments were not well taken.
IV. First Efforts to Seek Predictable and Uniform Population Forecasts
In 1995, interest groups asked the Oregon legislature to improve the means by which population forecasts were undertaken and, in response, the legislature enacted House Bill 2709 — the “Christmas Tree” bill — with appeal to many diverse interest groups.44 While retaining county coordinating functions,45 the legislature repealed the county plan review and reporting functions that had largely remained as they were enacted as part of Senate Bill 100.46 In repealing these functions,47 the legislature enacted a new statute specifically mandating population forecasting: “The coordinating body under ORS 195.025(1) shall establish and maintain a population forecast for the entire area within its boundaries for use in maintaining and updating comprehensive plans, and shall coordinate the forecast with the local governments within its boundary.”48
Thus, from 1995, coordinating bodies (counties and Metro) had the responsibility for population forecasts. While responsibility was now fixed, there was still a problem in getting counties to undertake that work at all because there were no state funds appropriated for this task, and it remained unpopular. There still loomed the prospect of having inconsistent forecasts from various public agencies. Moreover, the adoption by a county coordinating body of a county-wide population forecast and nothing more left the cities with either no projected growth or a population cap limited by the overall projection. These cities needed both a countywide population projection and an allocation of that projection among the cities within the county and the unincorporated area — a conflict-ridden process. While a county action in coordinating population was reviewable and could be struck down, the failure to do anything required discretionary enforcement action by the state,49 which was often reluctant to act.
Faced with a cacophony of presumptively valid, but inconsistent population forecasts, the 2007 Oregon Legislature heard the cry of cities caught between inaction and adverse action on the part of county coordinators and enacted House Bill 3436,50 which established an alternative population forecasting methodology:
• If the county had not adopted a twenty-year population forecast for ten years or more, as required under its coordination responsibilities,51 a city may propose a straight-line projection, using the previously-adopted coordinated projection.52
• If the county had not adopted a population forecast as required by law,53 or there were no adopted forecasts for ten years or more, a city may propose using the Oregon Office of Economic Analysis population forecast for the twenty-year period going forward from the time of the city’s evaluation or amendment of its urban growth boundary or use some share of the urban area population as forecast by the Portland State University Population Research Center.54
• If either of these steps were accomplished, the city could await county disposition of its proposal or, if no action were taken within six months of submission and the city gave notice of its proposal to other local governments in the county, it was free to include its proposal into its comprehensive plan and use those figures for future land use actions.55
• Finally, the legislation stated that it did not prevent LCDC from adopting an alternative set of population requirements by rule.56
While a small victory for cities that faced growth forecasting problems in amending their plans, especially those planning to expand urban growth boundaries, the alternative methodology’s use of straight-line projections did not satisfy those cities whose growth exceeded the required rates.
In 2008, a report to LCDC on the effectiveness of the alternative population forecasting methods57 still found serious shortcomings:
• Counties were still the “coordinating body” charged with establishing and maintaining a population forecast as part of their comprehensive plans and as part of any urban area plan for cities. Cities could propose an alternative forecast, but the process for doing so was long and costly.58
• While there were certain standards for forecasting, they were not exceedingly rigorous.59
• There were weaknesses in statewide population calculation resources: The Office of Economic Analysis performed population forecasts only at the county level, while the Population Research Center at Portland State University performed only a “point in time” estimate to calculate growth trends from one year to another.60
• Only Metro and fifteen (of thirty-six) Oregon counties had adopted population forecasts within the previous ten years and for most purposes a twenty-year forecast was necessary to deal with urban growth boundary amendments.61
• There was a lack of resources to undertake some of these forecasts and a lack of consensus over forecasting methodologies.62
Clearly, even with the use of alternative forecasts by cities, the system was unsustainable.
V. Ultimate Resolution of the Population Forecasting Problem
In 2013, cities asked for additional legislation to deal with the unsatisfactory results of the 2007 legislation. While many cities desired to undertake their own population forecasts, the legislature heard more clearly concerns emanating from LCDC to the effect that uniformity was a greater value than local control. In any event, the existing situation was intolerable.
To resolve the problem, the legislature passed House Bill 225363 which:
• Repealed the specific authority of coordinating bodies (i.e. counties) to undertake population forecasts.64
• Enacted a separate statute to allow Metro to continue to undertake such forecasting for the Portland urban area.65
• Repealed the 1995 legislation authorizing cities to undertake an alternative population forecast.66
• Established the Portland State University Population Research Center as the authoritative body for making population forecasts outside the Portland metropolitan area.67
• Provided for funding to assure financing for the new regime.68
• Attempted to insulate from review final forecast of the Population Center at Portland State University.69
The result of this legislation is two regimes of population forecasting — one for the Portland region, which is undertaken by Metro,70 and another for the remainder of the state, which is undertaken by the Population Center at Portland State University.71
In the relatively short period since this legislation became effective, there have emerged issues with the new, bifurcated system.72 LCDC has adopted new administrative rules to implement the 2013 legislation.73 The area of the state outside Metro now has the same level of certainty for planning purposes as exists in Metro. The Population Research Center, as of the date of this paper, has completed population forecasts for ten counties in southern and central Oregon, including unincorporated areas and urban growth boundaries of their respective cities.74
Planners and lawyers can expect that future state planning regimes will require internal consistency and coordination of local plans or the formulation of a statewide plan. Inevitably, those regimes must deal with potential inconsistencies in the building blocks of plans, such as population forecasts. The Oregon planning system once attempted to allow for local management of those projections; however, over time it became clear that there must be a definitive means by which binding population forecasts must be enacted in common. For those states that provide for local population forecasts, the Oregon experience may be helpful.
- “Forecasting” is the official term used in the Oregon program, although the public may use “forecasting” and “projections” interchangeably. See, e.g., OR. REV. STAT. § 195.110(5)(a) (2008) (school facility planning); OR. REV. STAT. § 197.480(2)(a) (2015) (mobile home parks planning); OR. ADMIN. R. 660-007-0035 (2015) (metropolitan area housing obligations).
- See, e.g., Risa S. Proehl, Who’s Home?—A Look at Households and Housing in Oregon, PORTLAND STATE UNIVERSITY INSTITUTE FOR METROPOLITAN STUDIES AND THE POPULATION RESEARCH CENTER PUBLICATION FOR THE METROPOLITAN KNOWLEDGE NETWORK, (Sept. 2011), http://mkn.research.pdx.edu/2011/09/whos-home-a-look-athouseholds-and-housing-in-oregon/; Oregon Demographics & Social, MIGRATION POLICY INSTITUTE (2013), http://www.migrationpolicy.org/data/state-profiles/state/demographics/OR.
- Testimony of Mathew Scire, Director of Strategic Issues for the United States Governmental Accountability Office (Oct. 29, 2007), http://www.gao.gov/assets/120/118299.pdf (presented to Subcommittee on Information Policy, Census and National Archives, House Committee on Oversight and Government Reform).
- For example, the Population Research Center, located at Portland State University, is charged with developing annual population estimates of the state of Oregon, all 36 counties, and all cities in Oregon for this purpose, but coordinates its estimates for the Portland Metro area with the regional government, Metro, which has final authority over forecasts for the region and its constituent local governments under OR. REV. STAT. § 195.036 (2015); see also WIS. STAT. § 16.96 (2008) (assigning the Wisconsin Department of Administration to “[p]repare population estimates for purposes of state revenue sharing distribution under ch. 79 [titled ‘State Revenue Sharing’]”).
- It is elementary that a larger population provides a wider base for the efficient provision of capital improvements. See generally ECONORTHWEST, FISCAL CHALLENGES FOR OREGON’S CITIES (2011), available at http://www.orcities.org/Portals/17/Publications/SpecialPubs/Fiscal_Challenges_for_Oregon_Citi es_FINAL.pdf (report prepared for the League of Oregon Cities discussing impact of population on tax revenue and fiscal spending); Richard William Carkner, Efficiency of Social Capital Expenditures in Oregon Towns and Cities (Dec. 20, 1968) (Master’s thesis, Oregon State University), available at https://ir.library.oregonstate.edu/xmlui/bitstream/handle/1957/20880/CarknerRichardW1969.pdf?sequence=1 (“The factors of primary importance in explaining expenditure variations are population density, assessed property value, receipts form other governments and population change.”).
- To some extent, the various forecast methodologies drove the changes discussed in this paper, but another significant driver was the fact that almost half the state’s counties had not adopted a population forecast for at least ten years (and some had never done so). The lack of county attention to forecasting requirements caused cities to seek a change. See E-mail from Bob Rindy, Senior Policy Analyst and Legislative Coordinator for the Department of Land Conservation and Development, to author (Nov. 2, 2015, 16:43 CST) (on file with author) [hereinafter “Rindy Personal Communication”].
- For a description of Oregon’s land use history, see generally Edward J. Sullivan, The Quiet Revolution Goes West: The Oregon Planning Program 1961-2011, 45 J. MARSHALL L. REV. 357 (2012).
- See OR. REV. STAT. §§ 268.380-.393 (2015).
- While Oregon recognizes the preeminent power of the federal government on its lands, it has provided a default provision that provides for permits for uses on federal lands, if otherwise allowed. See OR. REV. STAT. § 197.390(2) (2015). Further, federal immunity has been lifted with respect to certain aspects of coastal regulation under the Coastal Zone Management Act. See 16 U.S.C. § 1456 (2015).
- These goals may be broken into several categories:
• Process Goals—Citizen Involvement and Planning generally (Goals 1-2)OR. ADMIN. R. 660-015-0000 to 660-015-0010 (2015).
• Resource-Related Goals—Agricultural, Forest, and other Natural Resources (Goals 3-5)
• Goals Relating to Human Interaction with the Environment—Air, Land and Water Quality, Natural Disasters and Hazards, Recreation and Energy (Goals 6-8 and 13)
• Urban-Oriented Goals—Economy of the State, Housing, Public Facilities and Services, Transportation and Urbanization (Goals 9-12 and 14)
• Goals Relating to Special Areas—The Willamette River Greenway and the Oregon Coast (Goals 15-19).
- OR. REV. STAT. § 197.175(1) (2015).
- Those mechanisms include:
• Acknowledgment of local government compliance with statewide planning goals. OR. REV. STAT. §§ 197.251–.276 (2015).
• Enforcement of Goals and rules on other public agencies of the state. OR. REV. STAT. §§ 197.319–.335 (2008).
• Post-acknowledgment review of new plan or land use ordinance provisions. OR. REV. STAT. §§ 197.610–.625 (2012).
• Periodic Review of city or county plans and land use regulations. OR. REV. STAT. §§ 197.628–.644 (2015).
• Review of land use decisions by the Oregon Land Use Board of Appeals. OR. REV. STAT. §§ 197.825–.860 (2015).
- Part I of Goal 2 provides an expansive set of requirements for local plans and planning:
PART I—PLANNINGOR. ADMIN. R. 660-015-0000(2) (2015).
To establish a land use planning process and policy framework as a basis for all decisions and actions related to use of land and to assure an adequate factual base for such decisions and actions.
City, county, state and federal agency and special district plans and actions related to land use shall be consistent with the comprehensive plans of cities and counties and regional plans adopted under ORS Chapter 268.
All land use plans shall include identification of issues and problems, inventories and other factual information for each applicable statewide planning goal, evaluation of alternative courses of action and ultimate policy choices, taking into consideration social, economic, energy and environmental needs. The required information shall be contained in the plan document or in supporting documents. The plans, supporting documents and implementation ordinances shall be filed in a public office or other place easily accessible to the public. The plans shall be the basis for specific implementation measures. These measures shall be consistent with and adequate to carry out the plans. Each plan and related implementation measure shall be coordinated with the plans of affected governmental units.
All land use plans and implementation ordinances shall be adopted by the governing body after public hearing and shall be reviewed and, as needed, revised on a periodic cycle to take into account changing public policies and circumstances, in accord with a schedule set forth in the plan. Opportunities shall be provided for review and comment by citizens and affected governmental units during preparation, review and revision of plans and implementation ordinances.
- Id. The requirement of an adequate factual base for planning is reflected in other statewide planning goals, including Goals 3 and 4 (Agricultural and Forest Lands, which require soil-based information as a predicate to designating the use of those lands), Goal 5 (information on a number of other natural resources to be considered for preservation or permission for other uses that may interfere with or downgrade those resources), Goal 6 (Air, Land and Water Quality, which requires assurance that present and future waste and process discharges will not violate state environmental laws), Goal 9 (Economy of the State, which requires inventories of urban lands for various economic development possibilities), Goal 10 (Housing, which requires inventories of land needs for various home ownership or rental options), Goal 14 (Urbanization, which requires land need inventories for urban uses for a 20-year period) and Goals 16 to 19 (the Coastal Goals, which require various inventories of lands for possible preservation or use along the Oregon Coast).
- Goal 9 provides, in relevant part:
To provide adequate opportunities throughout the state for a variety of economic activities vital to the health, welfare, and prosperity of Oregon’s citizens.
Comprehensive plans for urban areas shall:
1. Include an analysis of the community’s economic patterns, potentialities, strengths, and deficiencies as they relate to state and national trends;OR. ADMIN. R. 660-015-0000(9) (2015).
2. Contain policies concerning the economic development opportunities in the community;
3. Provide for at least an adequate supply of sites of suitable sizes, types, locations, and service levels for a variety of industrial and commercial uses consistent with plan policies;
4. Limit uses on or near sites zoned for specific industrial and commercial uses to those, which are compatible with proposed uses.
- Goal 10 provides, in relevant part:
To provide for the housing needs of citizens of the state.OR. ADMIN. R. 660-015-0000(10) (2015).
Buildable lands for residential use shall be inventoried and plans shall encourage the availability of adequate numbers of needed housing units at price ranges and rent levels which are commensurate with the financial capabilities of Oregon households and allow for flexibility of housing location, type and density.
Under administrative rules dealing with housing in the Portland Metropolitan Area, regionally coordinated population forecasts (termed “projections” in these rules) are necessary to determine the scope of housing need obligations. See OR. ADMIN. R. 660-007-0035 and -0050 (2015). The twenty-year horizon comes from Goal 14, discussed below. Nevertheless, by enactment of ch. 248, Or. Laws, 2015, the Oregon Legislature has authorized, as of January 1, 2016, a different timeframe under which cities with a population of over 10,000 may amend their urban growth boundaries on a fourteen year basis in accordance with LCDC rules to be adopted on population and other forecasts.
- OR. ADMIN. R. 660-015-0000(11) (2015). This goal is implemented by OR. ADMIN. R. 660-011-0025 (2015), which bases the timing of the provision of public services and facilities, inter alia, on population levels.
- OR. ADMIN. R. 660-015-0000(12) (2015). This goal is implemented by OR. ADMIN. R. 660-012-0016(5)(a) and –0030(3)(a) (2015), which bases the timing of the provision of transportation facilities, inter alia, on population forecasts.
- Goal 14 provides, in relevant part:
To provide for an orderly and efficient transition from rural to urban land use, to accommodate urban population and urban employment inside urban growth boundaries, to ensure efficient use of land, and to provide for livable communities.OR. ADMIN. R. 660-015-0000(14) (2015) (emphasis added).
Urban Growth Boundaries
Urban growth boundaries shall be established and maintained by cities, counties and regional governments to provide land for urban development needs and to identify and separate urban and urbanizable land from rural land.
Establishment and change of urban growth boundaries shall be a cooperative process among cities, counties and, where applicable, regional governments.
An urban growth boundary and amendments to the boundary shall be adopted by all cities within the boundary and by the county or counties within which the boundary is located, consistent with intergovernmental agreements, except for the Metro regional urban growth boundary established pursuant to ORS chapter 268, which shall be adopted or amended by the Metropolitan Service District.
Establishment and change of urban growth boundaries shall be based on the following:
(1) Demonstrated need to accommodate long range urban population, consistent with a 20-year population forecast coordinated with affected local governments; and
(2) Demonstrated need for housing, employment opportunities, livability or uses such as public facilities, streets and roads, schools, parks or open space, or any combination of the need categories in this subsection (2).
In determining need, local government may specify characteristics, such as parcel size, topography or proximity, necessary for land to be suitable for an identified need. Prior to expanding an urban growth boundary, local governments shall demonstrate that needs cannot reasonably be accommodated on land already inside the urban growth boundary.
Oregon has also sought to anticipate future urban land needs by creating “urban reserves” to deal with those needs between twenty and fifty years in advance, and LCDC has adopted rules that use forecasting as a tool to measure that need. See OR. ADMIN. R. 660-027-0040(2)-(3) (2015). See supra note 16, with respect to an alternative time horizon for calculating urban growth needs for purposes of reviewing and expanding urban growth boundaries.
- OR. REV. STAT. § 197.015(5) (2015) defines planning coordination as follows: “A plan is ‘coordinated’ when the needs of all levels of governments, semipublic and private agencies and the citizens of Oregon have been considered and accommodated as much as possible.”
The notion of coordination played a significant part for the justification of a state role in planning. OR. REV. STAT. § 197.005(1)-(2) (2015) and OR. REV. STAT. § 197.010(1) (2015) decry the lack of coordination of local plans and the remedy of state planning participation.
- Goal 2 itself requires, inter alia, that: “[e]ach plan and related implementation measure shall be coordinated with the plans of affected governmental units.” OR. ADMIN. R. 660-015-0000(2) (2015).
- That legislative determination, as revised, is codified in the current OR. REV. STAT. § 195.025(1) (2015):
In addition to the responsibilities stated in ORS 197.175, each county, through its governing body, shall be responsible for coordinating all planning activities affecting land uses within the county, including planning activities of the county, cities, special districts and state agencies, to assure an integrated comprehensive plan for the entire area of the county. In addition to being subject to the provisions of ORS chapters 195, 196 and 197 with respect to city or special district boundary changes, as defined by ORS 197.175 (1), the governing body of the metropolitan service district shall be considered the county review, advisory and coordinative body for Multnomah, Clackamas and Washington Counties for the areas within that district.However, section 39 of Senate Bill 100 (ch. 80, Or. Laws, 1973) gave counties additional power:
Following the approval by the commission of state-wide planning goals and guidelines, each county governing body shall review all comprehensive plans for land conservation and development within the county, both those adopted and those prepared. The county governing body shall advise the state agency, city, county or special district preparing the comprehensive plans whether or not the comprehensive plans are in conformity with the state-wide planning goals.1973 Or. Laws, ch. 80, sec. 39 (codified originally at OR. REV. STAT. § 197.255, then at 195.035, and repealed by 1995 Or. Laws, ch. 547, sec. 6. The current statute relating to the Metro’s population forecasting responsibilities was enacted in lieu of this statute.
- Under OR. REV. STAT. § 195.025(1) (2015), above , however, the three Portland metropolitan counties would coordinate for those parts of the region outside Metro.
- Under OR. REV. STAT. § 195.040 (2015), counties were to make annual reports to LCDC on the status of comprehensive plans within their boundaries. By tradition, counties also provided a report when a local comprehensive plan and land use regulations were submitted to LCDC for “acknowledgment” (or recognition that these documents did, or did not, meet the statewide planning goals. Although lacking in formal effect, the role of counties as coordinators occasionally led to conflicts between the counties “coordinating” plans of other jurisdictions and those jurisdictions themselves.
- “The [Oregon and California Revested Lands Sustained Yield Management] Act of 1937 set aside approximately 2.4 million acres of federally-owned forestlands in 18 western Oregon counties for the economic benefit of those counties.” Promises to Keep, ASSOCIATION OF O&C COUNTIES, http://www.oandccounties.com/ (last visited Nov. 26, 2015). Seventy-five percent of net timber harvest revenues went to the eighteen Oregon counties in which the lands lay, in lieu of taxes. Id. Over the years $2 billion went to local governments under this scheme. Id.
- This legislation enacted OR. REV. STAT. § 197.036(1), which stated in material part:
In addition to the responsibilities stated in ORS 197.175, each county, through its governing body, shall be responsible for coordinating all planning activities affecting land uses within the county, including planning activities of the county, cities, special districts and state agencies, to assure an integrated comprehensive plan for the entire area of the county.
- DLCD v. Douglas County, 33 Or. LUBA 216, 217-18 (1997).
- Id. at 221-22.
- Id. at 223-24.
- DLCD v. Douglas County, 37 Or. LUBA 129 (1999).
- See id. at 145.
- See id. at 137-44.
- Id. at 140-41.
- The city had two previous decisions from the Oregon Land Use Board of Appeals on moratoria and development limitations. In Manning v. City of St. Paul, 42 Or. LUBA 56 (2002), a city attempt to remove fifteen parcels from its urban growth boundary was remanded. However, the city succeeded on its second try. Manning v. City of St. Paul, 45 Or. LUBA 1 (2003). In Manning v. City of St. Paul, 33 Or. LUBA 193 (1998), the city prevailed in a moratorium case as the petitioner attempted to challenge the basis for the same in a proceeding to extend the moratorium, and it was too late to do so. Subsequent challenges to city development restrictions were the subject of unreported stipulated remands in two consolidated cases, Smith v. City of St. Paul and Manning v. City of St. Paul, LUBA No. 97-207, 1997 WL 33120441 (Or. LUBA Oct. 14, 1998).
- In a letter to Marion County dated March 4, 2009, the city proposed that its year 2030 population be reduced by 25%, from 747 to 556. See Forecast Analysis for Aumsville, Aurora, Hubbard, St. Paul, Silverton and Sublimity, MARION COUNTY OREGON (2008), http://www.co.marion.or.us/PW/Planning/ Documents/exhibitb.pdf.
- See Marion County, Or., Ordinance No. 1291, (Oct. 7, 2009), available at http://www.co.marion.or.us/PW/Planning/zoning/Documents/Ordinance%201291.pdf (revisions made by the County in the final projections, compared with other projections for St. Paul and other Marion County cities are available at http://www.co.marion.or.us/PW/Planning/Documents/exhibit background inventoryskugb.pdf). The analysis demonstrates that Marion County deferred to the growth wishes of its cities and granted additional population to those cities that desired it, and reduced the forecasts of those cities that desired that result.
- See OR. REV. STAT. §§ 197.319–.335 (2015) (setting forth the powers granted to DLCD to enforce planning obligations). There is some question as to whether this failure is comprehended by the grounds for an enforcement order in OR. REV. STAT. § 197.320 (2015). It may well be that the coordination obligations under OR. REV. STAT. § 195.025(1) (2015) may be enforceable only by mandamus, in which case it may be the State that is the only viable petitioner in such a case.
- Moreover, the tendency of LUBA and appellate courts in Oregon to affirm local judgment calls, even with regard to state law, also made challenges to population allocations difficult. For example, in Polk County v. Department of Land Conservation and Development, 176 P.3d 432 (2008), county zoning for certain unincorporated communities at odds with their own population projections were affirmed because the County was acting as the coordination body and was not restricted by population projections for such unincorporated communities under state law.
- 44 Or. LUBA 98 (2003).
- As LUBA described the facts:
ORS 195.025 and 195.036 require that a county establish and maintain a population forecast for the county for use in maintaining and updating city and county comprehensive plans, and shall coordinate the forecast with the local governments within the county. In 1997, the county began discussions to update the population forecast in its existing comprehensive plan, which dates to 1983. That 1983 forecast predicted a county population of 41,596 persons by the year 2000. According to the 2000 U.S. Census, the county’s 2000 population was 24,530. The 2000 population figure represents an increase of 932 persons from the 1990 Census count of 23,598. That historical population increase represents an annual average growth rate (AAGR) of 0.39 percent. Based on that historical rate of growth, the state Office of Economic Analysis (OEA) advised the county that the AAGR for the period 2000-2020 should be 0.39 percent, which would result in a 2020 population of 27,971.Id. at 100-01.
The county and most of the cities in the county were not satisfied with the OEA’s forecast and, in 2001, the county hired a consulting firm, Benkendorf, to prepare a population forecast through the year 2020, called the Union County Population Analysis and 2020 Forecast (UCPAF). The initial UCPAF, dated January 25, 2002, predicts a 1.0 percent AAGR for the entire county over 2000-2002. Assuming a 1.0 percent AAGR, the UCPAF predicts that the county’s population will increase by 5,406 persons, for a 2020 total of 29,956.
The January 25, 2002 UCPAF also allocated the predicted growth among the county’s eight cities and its unincorporated areas. For unincorporated areas, the UCPAF assumed a .66 percent AAGR, or a total increase of 873 persons. For most of the cities in the county, the UCPAF assumed that population would increase at the same rate as the county as a whole, 1.0 percent AAGR. However, for the City of Island City (Island City), the UCPAF assumed a 3.0 percent AAGR, predicting that the population of Island City would increase from 945 to 1,691 persons by the year 2020.
On February 7, 2002, the county submitted an application to the planning commission, proposing that the county incorporate the UCPAF into the county’s comprehensive plan as the population projections required by ORS 195.036. At the hearings before the planning commission, representatives from Island City argued that the estimated growth for Island City was too low, and the estimated growth for unincorporated areas was too high. Island City argued that the county should adopt a 6.0 percent AAGR for Island City, and reduce the AAGR for unincorporated areas accordingly. The planning commission agreed to allocate a 5.0 percent AAGR to Island City, which would result in an increase of 1,529 persons, for a 2020 total of 2,454 persons in the city. The reallocation to Island City left the unincorporated areas of the county with a predicted increase of 90 persons, or a .07 percent AAGR.
With that modification, the planning commission voted to recommend approval of the proposed amendments to the board of county commissioners. The county commissioners held three hearings, and voted to incorporate the final UCPAF, dated June 21, 2002, into the county’s comprehensive plan, as the county’s official population forecast. This appeal followed.
- See id. at 101-05.
- LUBA determined that the building permit data was incomplete and thus lacking substantial evidentiary support as it did not deal with loss of dwellings by replacement, destruction, and the like over the planning period and assumed that every residential building permit applied for would result in a new dwelling. Id. at 109-13. Regarding employment data, although LUBA upheld the County’s optimistic findings that certain development would indeed occur, the employment data failed to deal with the job losses in the timber industry and displacement of retail jobs by a projected Wal-Mart expansion in the county’s largest city. See id. at 113-18.
- Id. at 126. On remand, LUBA obliquely dealt with the suggestion that the City of Island City, another city within Union County, had an inordinate share of projected future population:
We have sustained a number of subassignments of error that generally challenge the county’s conclusion that the countywide population will increase at a 1.0 percent AAGR. That conclusion requires that the county reevaluate its countywide population projection in light of this opinion. Although we did not sustain petitioners’ arguments regarding allocation among the county’s cities and unincorporated area, if on remand the county revises its countywide projection, that will by necessity require revisions to its allocations.Id. at 125-26.
- See 1995 Or. Laws 1499. Additionally, the term “Christmas Tree” bill refers to legislation that seeks to satisfy multiple interest groups (as opposed to only one), concerns multiple unrelated matters within a broad subject area, and usually appears at the conclusion of a legislative session.
- See OR. REV. STAT. § 195.025(1) (2015).
- See 1973 Or. Laws 138. The revised version of this section (before its repeal in ch. 547, sec. 6, Or. Laws 1995) is set out in note 22, supra.
- 1995 Or. Laws 1399.
- Id. (codified as former OR. REV. STAT. § 197.034).
- See OR. REV. STAT. § 197.319–.335 (2008).
- See 2007 Or. Laws 1825, (former OR. REV. STAT. 195.034 (2011)).
- See OR. REV. STAT. § 195.025(1) (2011). This statute was subsequently amended to change these responsibilities.
- Former OR. REV. STAT. § 195.034(1), which resulted from this legislation provided:
If the coordinating body under ORS 195.025(1) has adopted, within 10 years before a city initiates an evaluation or amendment of the city’s urban growth boundary, a population forecast as required by ORS 195.036 that no longer provides a 20-year forecast for an urban area, a city may propose a revised 20-year forecast for its urban area by extending the coordinating body’s current urban area forecast to a 20-year period using the same growth trend for the urban area assumed in the coordinating body’s current adopted forecast.
- Id. § 195.036. This provision, which contained population-forecasting obligations for coordinating bodies, was subsequently amended to remove those responsibilities.
- Id. § 195.034(2). This section provided:
If the coordinating body has not adopted a forecast as required by ORS 195.036 or if the current forecast was adopted more than 10 years before the city initiates an evaluation or amendment of the city’s urban growth boundary, a city may propose a 20-year forecast for its urban area by:
(a) Basing the proposed forecast on the population forecast prepared by the Office of Economic Analysis for the county for a 20-year period that commences when the city initiates the evaluation or amendment of the city’s urban growth boundary; and
(b) Assuming that the urban area’s share for the forecasted county population determined in paragraph (a) of this subsection will be the same as the urban area’s current share of the county population based on the most recent certified population estimates from Portland State University and the most recent data for the urban area published by the United States Census Bureau.
- Id. § 195.034(3). This section provided:
(a) If the coordinating body does not take action on the city’s proposed forecast for the urban area under subsection (1) or (2) of this section within six months after the city’s written request for adoption of the forecast, the city may adopt the extended forecast if:
(A) The city provides notice to the other local governments in the county; and
(B) The city includes the adopted forecast in the comprehensive plan, or a document included in the plan by reference, in compliance with the applicable requirements of ORS197.610 to 197.650.
(b) If the extended forecast is adopted under paragraph (a) of this subsection consistent with the requirements of subsection (1) or (2) of this section:
(A) The forecast is deemed to satisfy the requirements of a statewide land use planning goal relating to urbanization to establish a coordinated 20-year population forecast for the urban area; and
(B) The city may rely on the population forecast as an appropriate basis upon which the city and county may conduct the evaluation or amendment of the city’s urban growth boundary.
- See id. § 195.034(4). This section of the legislation provided:
The process for establishing a population forecast provided in this section is in addition to and not in lieu of a process established by goal and rule of the Land Conservation and Development Commission.This 1995 legislation was, for the most part, not used by cities to deal with inaction by counties. Rindy Personal Communication, supra note 6.
- Informational Briefing on Coordinated Population Forecasts from the Oregon Department of Land Conservation and Development (June 18-20, 2008), available at http://www.oregon.gov/LCD/docs/rulemaking/061808/item_10_sr.pdf [hereinafter 2008 Informational Briefing].
- See id. at 3-6.
- See former OR. ADMIN. R. 660-024-0030(2):
The forecast must be developed using commonly accepted practices and standards for population forecasting used by professional practitioners in the field of demography or economics, and must be based on current, reliable and objective sources and verifiable factual information, such as the most recent long-range forecast for the county published by the Oregon Office of Economic Analysis (OEA). The forecast must take into account documented long-term demographic trends as well as recent events that have a reasonable likelihood of changing historical trends. The population forecast is an estimate which, although based on the best available information and methodology, should not be held to an unreasonably high level of precision.
- 2008 Informational Briefing, supra note 57, at 3. While the PSU Population Research Center did not issue long range forecasts that were recognized by LCDC as binding forecasts, as that agency was neither authorized nor funded for that purpose, it was nevertheless a major player before 2013 as it would undertake long range population forecasts if contracted by cities or counties, which occurred with some frequency. Rindy Personal Communication, supra note 6.
2008 Informational Briefing, supra note 57, at 4.
- See id. at 4-6.
- See 2013 Or. Laws 1499. In describing the problems of population forecasting, Department of Land Conservation and Development staff said:
Population forecasts are essential for long range land use planning. Under current Oregon law, each county is required to adopt a “coordinated population forecast” for the urban and rural areas in that county (except for jurisdictions in the Metro area—those jurisdictions receive population forecasts from Metro. This concept does not affect Metro’s forecasting program and responsibilities). For a variety of reasons many counties have not adopted population forecasts or have not updated their forecasts for long periods of time. This has detrimental effects on planning for cities in those counties. State law currently requires cities to use the county’s forecast for land use planning purposes, including amendments to urban growth boundaries (UGBs). Cities cannot update plans and UGBs without a reasonably current coordinated forecast, and in several counties the lack of up-to-date county forecasts has delayed critical land use planning for cities. A regular PSU forecast would solve this problem.Oregon Department of Land Conservation and Development, HB 2253 One-Pager, http://www.oregon.gov/LCD/docs/meetings/lcdc/012413/Item_7_Attachment_B_HB_2253_One-Pager.pdf.
In addition, population forecasts are often expensive, controversial and subject to prolonged litigation, in large part because forecasting is connected to land use issues such as UGB planning. Population forecasting is costly to counties and cities, and to the state (the state provides grants to individual local governments for forecasts). These costs greatly increase with litigation, and there are additional undetermined costs due to delay of critical local planning. Currently, forecasting is done for multiple purposes by a large number of jurisdictions and agencies, resulting in duplication of effort and other cost-inefficiencies. Counties cite costs and delays as one of the reasons their required forecasts are done infrequently; often ten or more years will elapse between forecasts. Establishing a PSU program to issue forecasts on a regular four-year cycle will be much more cost effective for state and local governments.
- See 2013 Or. Laws 1501.
- See id.
- Id. (repealing OR. REV. STAT. § 197.034).
- See id. at 1500 (providing for transitional means through which the new system would take effect).
- See id. at 1501.
- See id. at 1500. Time will tell whether this insulation will be effective.
- See OR. REV. STAT. § 195.036 (2015).
- See OR. REV. STAT. § 195.033 (2015).
- The Portland State forecasts are often based on the amount of vacant, buildable land within an acknowledged urban growth boundary. See Portland State University College of Urban & Public Affairs, Methods and Data for Developing Coordinated Population Forecasts, POPULATION RESEARCH CENTER, http://www.pdx.edu/prc/sites/www.pdx.edu.prc/files/Forecast_Methods_201506.pdf. Thus, if a city has little land available for urban growth, it likely will receive a lower population allocation (and also lower public facility and employment needs projections). Moreover, the accuracy of forecasting methods decreases with the size of the urban area. E-mail from Greg Winterowd, former DLCD staff member, to author (Nov. 2, 2015, 12:51 CST) (on file with publisher).
- OR. ADMIN. R. 660-032-0000 (2015). These rules require the use of the Metro population forecast with respect to planning for cities and counties (as well as state agencies and special districts) within Metro’s boundaries. OR. ADMIN. R. 660-032-0020(2) and -0030 (2015). The rules require use of Portland State University Population Research Center’s forecasts for other areas of the state. OR. ADMIN. R. 660-032-0020(1) (2015).
- As of the publication date, the Population Research Center has completed estimates for ten counties and the cities within those counties. The Center projects to complete estimates for fourteen more counties and their cities in 2016, and complete the remaining twelve Oregon counties and their cities in 2017. See Oregon Population Forecast Program (OPFP), COLLEGE OF URBAN & PUBLIC AFFAIRS: POPULATION RESEARCH CENTER, www.pdx.edu\prc\opfp (last visited Nov. 26, 2015).