As hearing opens, LCDC weighs regulation versus precedent
Reporting from Salem
Members of Oregon's Land Conservation and Development Commission were faced with a fundamental choice on Thursday – are they policymakers or regulators?
In the opening seven hours of a multi-day review of Metro's 2011 urban growth boundary expansion, commissioners heard advocates of both sides try to sway their decision.
On one side were representatives from Metro, Hillsboro and development firms, who argued that the commission should override its staff and approve the boundary expansion. They said the expansion, without question, met the spirit of the law, and it was likely to survive under legal review from the courts.
Those who were trying to get the commission to reject the expansion said Metro's expansion was illegal on a variety of counts.
As for the commission? After an opening discussion that indicated at least some members were thinking that Oregon's land use process has become too cumbersome, commissioners did little to tip their hand as to how they might ultimately rule on the boundary expansion.
They did, however, generally agree that MetroScope resembles Willy Wonka's chocolate factory.
Reminder of the lead-up
The question of regulation versus policy stemmed from a series of court cases, most notably the July 2011 ruling by Oregon Court of Appeals in a case of land conservation advocates versus McMinnville and LCDC.
At a Wednesday appearance in Portland, the acting director of LCDC's staff work, Jim Rue, said the agency was hamstrung in being forced to comply with the regulations set in Appeals Court Justice Timothy Sercombe's ruling.
"We don't like being in this position," Rue said. "We have to use that opinion as part of our analysis."
Several of the speakers at Thursday's LCDC hearing disagreed.
Laying down the law
Metro Council President Tom Hughes said LCDC would be making a mistake if it allowed itself to get bogged down in process – a mistake that would hurt the economy of the Portland region, and would end with the same result after many more years of process.
Hughes recently returned from a recent economic development trip to Japan, and said companies from that country are looking at Oregon.
"We are desperately in need of additional land," Hughes said. "We need to be flexible, we need to be nimble and we need to be able to have the timing to take advantage."
Dick Benner, Metro's senior land use attorney and a former director of Oregon's land use review department, said the McMinnville case shouldn't even be part of the conversation.
"It has nothing to do with us whatsoever," he said. "There's nothing in that part of the appeal that has to do with your situation."
In essence, proponents were asking the commission to declare that Metro's expansion was legal, and use their own judgment and insight to bolster the case for inevitable appeals.
Not so fast
But 1000 Friends of Oregon attorney Mary Kyle McCurdy, who successfully argued the McMinnville appeal, said there was too much wrong with Metro's boundary expansion to justify approval.
She also called on the state to reject the staff report – because it was too lax on planning requirements.
Chiefly, McCurdy said, that an expansion now lets cities and the region off the hook for the bad decisions of the past. She said statewide rules require cities to plan to accommodate as much development as zoning will allow, and cities have a responsibility to do whatever it takes to make that development happen.
"We need to focus on the infrastructure and policy investments to make it happen," she said. Metro had argued that it was unrealistic to expect "maximum zoned capacity" to happen in much of the region.
Benner, in his testimony, pointed to zoning in downtown Hillsboro that allowed for eight story buildings. He said that was unlikely to happen, if only because those buildings are so expensive to build that they'd be unlikely to attract tenants and be profitable.
That proved to be a key concern for Commissioner Greg Macpherson, who worried about precedent. Often, he said, rural cities come to LCDC to argue that they have to expand their urban growth boundary because the market won't support the types of housing required by regulations. He wondered why Metro should be let off the hook for that maximum zoned capacity requirement.
Benner said Metro is trying to influence the market to make that requirement more affordable – but that can't happen overnight.
McCurdy wasn't the only objector. Cornelius city manager Rob Drake said Metro's selection process was flawed, and didn't demonstrate that it complied with state law. And Forest Grove Mayor Pete Truax made a similar argument, that more research needed to be done before Metro could legally eliminate a proposed growth boundary expansion near his city.
A chocolate factory and an implosion
The meeting wasn't all questions about on-the-ground results and Oregon's land use planning goals. Commissioners seemed mystified by MetroScope, the regional government's economic modeling software that is used to test planners' assumptions on growth and development.
It was often called a Black Box, or Willy Wonka's Chocolate Factory. Expect MetroScope to come back up in LCDC's future meetings on the 2011 UGB decision, scheduled for May 11 and June 14.
By the end of the day, Macpherson seemed ready to call off the latter meeting.
"I would like to see us act now rather than remanding," he said.
Why the rush? Hillsboro land use attorney Michael Robinson argued that a remand would delay the process for years – with negative results.
If LCDC approves the boundary expansion, Robinson and others argued, and the Court of Appeals rejected it, it would leave behind a clear list of what Metro needed to do to comply with state law – a so-called road map. That would likely come out in time for Metro to prepare that information and more for its next scheduled urban growth boundary review, set to begin in 2014.
That, however, acknowledges the rabbit hole that Oregon land use planning has become. That planning system, Commissioner Tim Josi said near the start of the hearing, is in danger of imploding on itself.
"What latitude do I have as a commissioner in making my considerations, so that we can make sure that our land use system continues to be viable?" Josi asked.
Commissioner Bart Eberwein was more blunt. "What's the worst case scenario if we approve this?" he asked.
That brought back an answer from staffer Rob Hallyburton that was sure to frighten everyone in the room.
"In my mind, that (LCDC's) approval is appealed to the Court of Appeals that is remanded with new case law that is even worse than what we have now," Hallyburton said.
The hearing is scheduled to continue Friday at 8 a.m.
Note: An earlier version of this story misidentified Hillsboro land use attorney Michael Robinson. This version has been corrected.