I. Introduction
Among the states, the role of the comprehensive plan as a prerequisite and criterion for land-use regulation is much debated, and the approaches taken by various states are diverse. This article explores the approach taken by the State of Oregon to establish the local comprehensive plan as the basis for land-use regulations and actions and advances that approach as model for other states, given its success. As will be seen, that approach began with a state system that had already accepted the primacy of comprehensive planning and that went on to specify the nature of the comprehensive plan and the process to formulate, review, and update that document. The article begins with a summary of that history, including the significant influence of planning pioneer F. Stuart Chapin Jr. The article then discusses the specifics of Oregon Statewide Planning Goal 2 in the evolution of the state’s planning and regulatory processes.
A. Planning in Oregon Between 1919 and 1969
Like most states, Oregon adopted enabling legislation similar to the Standard State Zoning Enabling Act of 1926, which enabled local governments to zone “in accordance with a comprehensive plan” without further state supervision and which allowed disputes to be taken up in the lower courts. However, when it first authorized planning and zoning for cities in 1919, the Oregon Legislature used language similar to that enacted by the New York Legislature for New York City. The relationship between city planning and zoning was not considered by Oregon’s appellate courts until 1975 in Baker v. City of Milwaukie, when the Oregon Supreme Court concluded that a city’s adopted plan limited its discretion under its zoning regulations. Oregon counties were authorized to plan and zone in 1947, though the planning element was then known as a “development pattern.” In 1963, the legislature substituted the words “comprehensive plan” for “development pattern,” making the plan an explicit requirement for land-use regulations.
B. Planning in Oregon Since 1969
In 1969, the Oregon Legislature departed from the model established by the Standard State Zoning Enabling Act. The state legislature enacted SB 10, requiring all local governments to plan and zone all non-federal lands by December 31, 1971. The voters approved the legislation in a referendum, but there was neither time nor funding to reach that objective.
With the adoption of the landmark SB 100 in 1973, the comprehensive plan became the foundation for the Oregon planning system. That legislation required the Land Conservation and Development Commission (LCDC) to adopt binding statewide planning goals to be implemented at the local level through comprehensive plans, which themselves were to be binding on land-use regulations and actions by public entities and private persons (except for the federal government). The local comprehensive plan became an “impermanent constitution” for development—changeable (with some effort) but binding.
Supplementing local government enabling legislation, LCDC moved to provide more detail and certainty in the adoption, application, and review of comprehensive plans through the enactment of Statewide Planning Goal 2: Land Use Planning, which sets out as its purpose “[t]o establish a land use planning process and policy framework as a basis for all decision and actions related to use of land and to assure an adequate factual base for such decisions and actions.”
Central to the Oregon planning system is the requirement for an “adequate factual base” that provides the foundation on which policy choices may be made. Thus, choices to preserve resource lands for farm or forest uses outside urban growth boundaries are made primarily based on soil classifications, and adoption of or changes to urban growth boundaries are made based on population projections and land needs, rather than unsupported wishes.
The goal consists of three parts: Planning Requirements, Exceptions, and Use of Guidelines as the pillars of Oregon planning. Each of these elements is examined below.
II. Goal 2, Part I—Planning Requirements
Academics do not always agree on the essential elements of an ideal comprehensive plan and planning process. The same may be said of regulators. Of particular note is the work of F. Stuart Chapin, Jr. and the various editions of his book, Urban Land Use Planning, which advances “rational planning,” a methodology that moves away from an intuitive approach to planning and makes use of experts in the physical and social sciences to formulate a comprehensive plan that reflects the integrated input of these fields. This article suggests that certain critical elements of the planning portion of Goal 2 were derived from the second edition of Chapin’s book, published in 1965. However, the use of the “rational planning” methodology in the formulation of Goal 2 in 1974 has been criticized for its reliance on top-down expertise and lack of public participation.
The Oregon Department of Land Conservation and Development (DLCD), the staff for the state’s planning agency, describes the state’s approach to comprehensive planning as follows:
Goal 2 requires each local government in Oregon to have and follow a comprehensive land use plan and implementing regulations. Cities and counties must build their comprehensive plans on a factual base, and follow their plan when making decisions on appropriate zoning. City and county plans must be consistent with one another. Special district and state agency plans and programs must be coordinated with comprehensive plans.
Comprehensive plans must comply with the requirements of each applicable statewide planning goal. The Land Conservation and Development Commission (LCDC) reviewed each city and county comprehensive plan for compliance with the goals, and when LCDC found that the plan, as a whole, was consistent with the goals, the commission “acknowledged,” or approved, the plan. Once a plan is acknowledged, it replaces the statewide planning goals for the purposes of local land use decision-making.
Except for federal and tribal lands, every inch of Oregon is planned and zoned. The comprehensive plan and zoning ordinances are the guiding documents for local government land use decisions. They help create predictable outcomes for the people that live and operate businesses in the community for development of homes, stores, and industries. Comprehensive plans also guide public development—streets, municipal water, sewer, and parks—and conservation of natural resources. . . [?]
Goal 2, alongside other Oregon laws, provides the process for and elements of comprehensive planning. Part I of the goal, viewed against an established legal background that reflects a preexisting state recognition of the value of planning and its primacy over regulatory activity, demonstrates continuing support for planning, as shown below.
1. The obligation to plan
SB 100 built upon the accepted consensus that planning was necessary, whether the plan be termed “well considered” or “comprehensive.” With the passage of SB 100, the obligation to plan (and to do so consistent with statewide planning goals) was established as state policy. Cities and counties adopted plans and land use regulations that bound private persons and non-federal public agencies but that were required to include the statewide goals in such plans, thereby carrying out state policies.
2. Establishment of a uniform process for comprehensive planning
Goal 2 provides for a detailed comprehensive planning process, including the following requirements:
a. Identification of issues and problems
While this requirement is discussed in academic literature, no cases have addressed it, presumably because participants in the planning process raise, and local governments demonstrably consider, significant outstanding issues for discussion and resolution as part of the planning process.
b. Inventories and other factual information for each applicable statewide planning goal
Goal 2 requires local governments to conduct land inventories as a basis for the policies and decisions set forth in the plan but only with regard to those statewide land use goals specifically requiring them, such as those concerning housing, economic development, natural hazards, open spaces, wetlands, and the like. Reviewing authorities often defer to the judgment of local governments in the conduct of necessary inventories. However, required inventories must be adopted as part of the local comprehensive plan or as a supporting document for that plan. If a land-use action involves a change to an inventory that is acknowledged to comply with a goal, then the local government must address the displacement of any inventoried site. On the other hand, if new information on an as-yet-not-inventoried Statewide Planning Goal 5 (Natural Resources, Scenic and Historic Areas, and Open Spaces) resource site becomes available, the local government need not amend its inventories until a later date. The goals contemplate a stable planning process based on incremental change, which does not require a local government to make “continuous data correction” in its inventories with every plan amendment.
c. Evaluation of alternative courses of action and ultimate policy choices, taking into consideration social, economic, energy, and environmental needs
Controversies around the application of this requirement typically concern the adequacy of the evaluation of alternatives and policy choices included in the plan or supporting documents. The separate elements of this requirement are usually combined in the comparatively few cases that interpret them beyond the bare acknowledgment that alternatives must be considered and choices must be made. Several key cases stand out.
A decision by the Oregon Court of Appeals, Nicita v. City of Oregon City, sheds light on the evaluation requirement. There, the petitioners contended, inter alia, that the city had failed to include an evaluation of alternative courses of action and ultimate policy choices in the adoption of a stormwater management plan. However, the Court read Goal 2’s requirements narrowly, concluding that they apply only to those statewide planning goals that contain equivalent requirements and that Statewide Planning Goal 6 (Air, Water, and Land Resource Quality) did not. Speaking specifically to the Goal 2 challenge, the Court explained:
Goal 2 has two main functions: to establish a process and policy framework for decisions and to assure an adequate factual base for those decisions. “[A]n ‘adequate factual base’ is synonymous with the requirement that a decision be supported by substantial evidence.” . . . In elaborating on those objectives, Goal 2, Part I, provides in part that “[a]ll 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.” That sentence directly relates to the objective of having an “adequate factual base” for decisions.
In Neuharth v. City of Salem, the Oregon Land Use Board of Appeals (LUBA) rejected a challenge to a plan amendment and zone change to accommodate a multi-family development under the “alternative courses of action” element, finding that Goal 2 does not require independent review of specific alternative sites but merely an explanation of why the city chose the subject site over others, which the city in that case provided in its findings.
In Tipperman v. Union County, the petitioners challenged the county’s future population projections and allocations, which would have formed the basis for the growth of the cities and unincorporated areas within the county. The petitioners contended, inter alia, that the county did not evaluate alternative population scenarios under Goal 2 in making the allocations. In rejecting the challenge, LUBA distinguished an older case, Gruber v. Lincoln County, which had sustained a challenge on the same ground. Gruber involved a county’s choice to plan and zone the rural Olalla Valley to allow for dispersed residential uses on five-acre lots without justifying that choice. The Tipperman decision found Gruber of “little assistance” to the petitioners, as the county’s decision and findings in this case were “more than sufficient” to satisfy Goal 2’s “alternative courses of action” requirement.
LUBA also rejected a Goal 2 challenge on this ground in Columbia Pacific Building Trades Council v. City of Portland. That case arose out of a city’s adoption of an ordinance that prohibited new fossil fuel terminals and limited expansion of existing terminals. Petitioners claimed, inter alia, that the city had not properly evaluated alternative courses of action under Goal 2. LUBA rejected the contention, pointing to the extensive evaluative findings in the record that considered alternatives.
d. Required information shall be contained in the plan document or in supporting documents, and the plans, supporting documents, and implementation ordinances shall be filed in a public office or other place easily accessible to the public
The first portion of this requirement calls for justification of policy choices with identifiable factual information, while the remaining portion deals with public access to that information. In light of the requirement for an adequate factual base, discussed above, and Oregon’s public records statutes, these provisions are relatively uncontroversial, and there has been little litigation on them.
e. Implementing measures that are consistent with and adequate to carry out plans
As LUBA has noted, “implementation measures” are frequently land-use regulations, and it is important to understand the subordinate nature of those measures to the plan. Land-use regulations and actions cannot contradict the plan, which is a “floor” for subsequent land-use regulations and actions but is not a “ceiling” for those that do not directly contradict the plan.
f. Each plan and related implementation measure shall be coordinated with the plans of affected governmental units
One of the most demanding features of the Oregon land use system is its insistence on public agency coordination, which is a feature of Goal 2, as well as state law. From the early days of the system, the state has required notice to, an exchange of information with, and consideration of the concerns of other public agencies (though not necessarily accession to all requests).
In Rajneesh Travel Corp. v. Wasco County, a rural fire protection district was not given an opportunity to review or make comments on a pending comprehensive-plan amendments that affected it. With respect to the statutory and goal requirements for coordination, LUBA said:
We read [these requirements] to place the burden of coordination on the county. To carry out this obligation, the county must at least take steps to invite an exchange of information between the governmental bodies. The record does not show the county made any effort to elicit the views of the district or to engage it in a dialogue about how the proposed amendments might affect the district. . . . [T]he burden on the county to coordinate its plan requires more than a passive reception of comments. . . . If the district had been invited to comment on the proposed amendments, and did so, its input may or may not have been accommodated in the county’s plan amendment. Without the district’s comments, however, the county was not able to balance the needs of the district with other considerations of the county, i.e., to accommodate the needs of all levels of governments, agencies, and citizens.
State agencies have been largely successful in insisting on such coordination. Metro, the planning agency for the Portland region, has been relatively unsuccessful in satisfying the coordination requirement, particularly with respect to regional urban growth boundary changes.
The coordination requirement has also provided a basis for challenges of a public agency action by other public agencies. Cities have made use of this requirement to challenge actions of counties and regional planning agencies. Special districts have also raised the coordination requirement to further their interests, although not always successfully. And, in one case, a citizen successfully challenged the actions of a special district that violated this requirement.
Coordination is mainly procedural, normally requiring little more than notice and active engagement in a discussion of concerns of other public agencies. However, that requirement has proved elusive in some cases where the outreach is inadequate or an agency is unresponsive.
g. All land-use plans and implementing ordinances shall be adopted by the governing body after public hearing
This requirement is relatively uncontroversial, as cities, counties, and the regional planning agency, Metro, must already comply under other state law.
h. All land-use plans and implementation ordinances shall be reviewed and, as needed, revised on a periodic schedule contained in the plan
There are no cases interpreting this requirement, probably because the Oregon legislature has provided, albeit ineffectively, for periodic review of plans and land use regulations and of housing needs for larger urban areas by statute.
i. Opportunity shall be provided for review and comment by citizens and affected governmental units during preparation, review, and revision of plans and implementation ordinances
This requirement is infrequently controversial. In Manning v. LCDC, the Oregon Court of Appeals, citing this requirement, held that LCDC erred in remanding a periodic review work task to Marion County without allowing landowner to comment during the remand process.
3. Relationship of the statewide planning goals with other policy objectives
The statewide planning goals are not the only consideration in public agency decisions affecting land use. LUBA and Oregon’s appellate courts have been careful to limit application of the goals to matters that relate to land use, as opposed to, for example, fiscal policy or where state law takes a policy direction at odds with the goals. In State Housing Council v. City of Lake Oswego, the Oregon Court of Appeals affirmed an LCDC final order dismissing a challenge to the city’s establishment of systems development charges on the grounds that they conflicted with the city’s obligations to accommodate housing under Statewide Planning Goal 10 (Housing), due to their cost impacts. The Court rejected that view:
We simply cannot imagine that the legislature intended that all local taxation, budget and fiscal policy had to comply with the statewide planning goals. A county might decide that it will or will not expend money to pave graveled roads. A city might adopt either a very modest or very grandiose budget for acquisition of park land and construction of parks. A city might set sewer and water rates relatively high or relatively low. A school district might adopt a bare-bones budget, or it might decide to build heated swimming pools and indoor tennis courts at all the schools. All of these decisions would affect land use interests like transportation, recreation and the efficient provision of public services. All of these decisions could result in higher or lower fees and taxes, thereby increasing or decreasing the cost of housing. Yet if the legislature contemplated that all of these decisions are exercises of land use planning responsibility that must comply with the goals, there is little or no local government action that is not land use planning.
However, the inclusion of taxation, budgetary, or fiscal policy matters in a challenged decision does not thereby exempt that decision from review by LUBA if the matter meets the statutory definitions of a “land use decision” or “limited land use decision” or if it has “significant impacts” on land use.
Conflicts between the goals and other statutory policies played a role in Springer v. LCDC, in which LCDC certified state agency rules and procedures that the petitioners contended were inconsistent with the statewide planning goals. LCDC relied on advice from the Attorney General that those rules and procedures were the product of separate legislative action and thereby were not required to be consistent with the goals under the State Housing Council case. The Oregon Court of Appeals dryly noted its opinion in the State Housing Council case that “[a]fter detailing the anomalies—or havoc—that any effort to coordinate the two schemes could entail, we stated that ‘the legislature created LCDC to be part of the state government, not to be the state government. . . .’”
Two cases stemming from various actions taken by the City of Springfield to establish a public facilities plan and apply its provisions in the local comprehensive plan are illustrative of the dichotomy between land-use decisions subject to the goals and those areas carved out from what would otherwise be a land-use decision, if not for statutory exemption. In Home Builders Ass’n v. City of Springfield, the city’s adoption of a public facilities plan, a long-range facility planning document and project list with a methodology for financing these public works projects, was exempted from LUBA’s jurisdiction, as it was declared by statute not to be a “land use decision.” The Oregon Court of Appeals upheld LUBA’s dismissal of that case. But, in a parallel case involving the same parties, the Oregon Court of Appeals affirmed a trial court dismissal of a challenge to the city’s methodology to determine service needs and project financing on the merits.
III. Goal 2, Part II—Exceptions
Much, perhaps too much, of the political and legal focus on Goal 2 over the years has been on the exceptions process, which allows for departures from the requirements of a statewide goal that otherwise must be applied. There are three types of exceptions.
The first two types of exceptions are increasingly rare and typically apply to lands that were physically developed for or committed to a use not permitted by the goals when the goals first took effect in the mid-1970s. The standard for physical development is “demanding.” The cases involving lands that are committed but not developed tend to be older. These exceptions are akin to the concepts of “nonconforming use” and “vested rights,” and the cases often deal with the minutia of the nature and extent of the claim against fairly strict standards.
Most extensively used and most controversial, the third type of exception requires that “[r]easons justify why the state policy embodied in the applicable goals should not apply.” The reasons exception is the most demanding of the three types, closely hedged about with a set of complex, interpretive rules and a large body of case law, which has been left largely undisturbed even by legislative changes that have eased Goal 2’s original (1974) requirement that “compelling reasons and facts” demonstrate that it is “not possible to apply” one or more goals. This type of exception is not directly based on recognized planning instruments but rather acts like a political and social safety valve to deal with special cases. The 1983 Legislature replaced the 1974 goal language with the following statutory requirements for “reasons exceptions”:
(a) Reasons justify why the state policy embodied in the applicable goals should not apply;
(b) Areas that do not require a new exception cannot reasonably accommodate the use;
(c) The long term environmental, economic, social and energy consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located in areas requiring a goal exception other than the proposed site; and
(d) The proposed uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts.
The cases often result in a remand of a local decision, given the exacting standards to be applied, and may involve a residential subdivision adjacent to a rural golf course, a claim based on rural market demand, a “wine hotel” outside an urban growth boundary, a liquid natural gas terminal and associated facilities, the use conditions imposed in granting an exception for a rural truck stop, and a solar power generation facility. However, taking a goal exception is not an impossible task. For some, the relative scarcity of exceptions allowed over the decades serves the double purpose of reenforcing existing state policies embodied in the goals and providing a means by which necessary uses that do not meet the goals may be allowed. For others, that same scarcity exposes the Goal 2 exceptions process as window dressing used more to signal than to enable flexibility in the application of state land-use policy.
IV. Goal 2, Part III—Guidelines
As DLCD explains, “Most goals are accompanied by guidelines, which are suggestions about how a goal may be applied. As noted in Goal 2, guidelines are not mandatory.” The text of Goal 2, Part III, referring to the guidelines, makes their use clear:
Governmental units shall review the guidelines set forth for the goals and either utilize the guidelines or develop alternative means that will achieve the goals. All land-use plans shall state how the guidelines or alternative means utilized achieve the goals.
Guidelines [] are suggested directions that would aid local governments in activating the mandated goals. They are intended to be instructive, directional and positive, not limiting local government to a single course of action when some other course would achieve the same result. Above all, guidelines are not intended to be a grant of power to the state to carry out zoning from the state level under the guise of guidelines. (Guidelines or the alternative means selected by governmental bodies will be part of the Land Conservation and Development Commission’s process of evaluating plans for compliance with goals.)
The Oregon Court of Appeals most recently reaffirmed the subordinate and non-binding nature of the guidelines in Nicita v. City of Oregon City. Goal 2, Guideline C, is titled “Plan Content,” and it has two sections titled “Factual Basis for the Plan” and “Elements of the Plan.” One of the elements that the guideline recommends including in the plan is “[a]pplicable statewide planning goals.” Faced with an argument that the city did not include the text of Goal 6 in its plan, the Court found no goal violation:
As a starting point, nothing in the text of Goal 2, Part III or the guideline for plan content requires that the full text of a goal be restated in a plan or amended plan. Rather, the governmental unit is directed to state how it used the guidelines to achieve the goal or alternative means to achieve the goal. LUBA concluded that the city did that by referencing the mandatory design standards, which in turn also reference applicable municipal code provisions. . . .
Guidelines play the role of suggesting ways for local governments to demonstrate compliance with state land use goals, but they do not offer any guarantees or “safe harbors” guaranteeing approval if followed.
V. Conclusion
Goal 2 is essentially a plan for planning. It carries out the statutory direction requiring local governments to undertake comprehensive plans that bind land-use regulations and actions, state and local public agencies, and private landowners. The goal does so in a specific, uniform manner that requires an adequate factual base, choices among competing alternatives, and coordination between local governments, public agencies, and utilities. Those plans must be accessible to the public and reviewed periodically to assure that policies embodied in the statewide planning goals are met, as well as a process for deviating from those policies in appropriate cases. In practice, the goal has had some shortcomings, particularly in not assuring general planning coordination among public agencies, in coordinating regional urban growth boundary changes, and, most tellingly, in the failure of periodic review. Regardless, Goal 2 has been useful in establishing a generally agreed-upon state planning process.
Along with the public participation and the urban growth boundary process goals and the Oregon Land Use Board of Appeals, Goal 2 is Oregon’s most significant contribution to planning theory and law, providing policy direction, recognizing that unique circumstances may require deviation and providing that flexibility within limits. In one sense, Goal 2 mirrors the nature of good planning in that it envisages a system based on fact, on alternatives, on public participation, and on review and revision to develop a rational planning product. Professor Chapin would be proud.
