This guest opinion by Oregon attorney Jeff Bachrach appeared in the March 22, 2014 Oregonian. We agree with Mr. Bachrach’s conclusion that in order to achieve the land use goals Oregon aspires to, we need to update the system.
The Oregon Legislature unanimously passed the historic land-use grand bargain bill because it was widely viewed that the state’s celebrated growth management system had broken down due to regulatory overload.
There is nothing wrong with the state’s aspirational land-use goals and the need to reconcile them with a growing population and changing economy. The problem is that the labyrinth of state laws and Land Conservation and Development Commission (LCDC) rules adopted over the years results in endless squabbles over technical details and protracted litigation that do little to create well-planned communities.
1000 Friends of Oregon disagrees. In a recent opinion piece, the organization’s executive director, Jason Miner, argues “the program is working.” The grand bargain, he writes, “was brought about by local government failure.”
The grand bargain came about as a result of a February ruling by the Oregon Court of Appeals that reversed Metro’s urban-rural reserves decision. Metro and the three counties and numerous cities it serves had spent five contentious years – plus about three more counting appellate reviews – creating a 50-year growth management map for the region.
The reserves map would have preserved 267,000 acres as rural reserves untouchable for development for 50 years, and limited all UGB expansions to 28,000 acres of urban reserves for the next 50 years. To provide perspective, utilizing all 28,000 acres of urban reserves would be an 11 percent increase in the supply of developable land to accommodate a projected 80 percent increase in population.
1000 Friends should have championed Metro’s reserves decision as a grand victory for their core message of farmland preservation and tight urban growth boundaries. But 1000 Friends and 19 other disgruntled parties filed appeals. Not surprisingly, considering the scope of the reserves decision and volume of regulations governing the process, the court issued a 126-page opinion that tossed out the map and told Metro and the local governments to start over.
Mr. Miner of 1000 Friends insists that “what happened with the reserves isn’t evidence of a broken land use system.” Rather, he blames it on Washington County for “designating high-quality farmland for sprawl.”
But that’s hardly a fair characterization of what happened. Because of the large amount of high value farmland in Washington County, as measured by soil type not actual productivity, designating a 50-year supply of potentially developable land meant that some high-value farmland had to end up as part of the urban reserves. About half of the urban reserves are located on soils qualifying as high value.
Moreover, the decision was not Washington County’s alone. The reserves map was approved in 2011 by all three county commissions, unanimously adopted by Metro and unanimously affirmed by LCDC.
Ultimately, the reserves decision was doomed by the daunting complexity of the process and the numerous parties taking legal aim at it. Blaming its collapse on Washington County is like blaming the Titanic on the sailor who saw the iceberg.
Facing the economic and political consequences of having the Portland region with no approved growth-management map or an expanded UGB for another five or 10 years, the Legislature decided to act.
It took the matter away from Metro and the courts. It disregarded land-use laws and imposed a new urban-rural reserves map and urban growth boundary for the Portland region.
Cities throughout the state have already proclaimed their expectation that the Legislature will give them the same kind of extra-legal land-use deal the Portland region got.
While many legislators were clear that passage of the bill is an acknowledgement that the statewide land-use system is broken and systemic repair is needed, that will not be easily accomplished. The fact that the grand bargain happened is not enough to shake the faith of 1000 Friends and others who believe that the land-use system should be preserved essentially as it was handed down 40 years ago.
The challenge ahead for Oregon is whether it can reclaim its mantle as a progressive national leader in land-use planning by developing a new and different kind of growth management system – one that reflects the values and goals that informed the original planning program, but is not captive to relentless regulatory schemes that do not result in good planning and policy-based outcomes.
If the Legislature is not up to the task, it may be forced to become a surrogate land-use decision-maker, brokering mini grand bargains for cities and counties around the state that are unable to plan and grow under Oregon’s current planning regime.
Portland-based attorney Jeff Bachrach specializes in land-use and development, particularly UGB and growth management issues. He currently represents and serves as a project manager for Newland Real Estate Group, which is the lead developer in the South Hillsboro expansion area.
