LCDC commissioners signal they're likely to approve UGB expansion in June
Five members of Oregon's Land Conservation and Development Commission signaled Friday that they are likely to approve Metro's 2011 urban growth boundary expansion.
Commissioners were wrapping up their second day of hearings on the expansion, which the Metro Council approved last October and is undergoing standard state review. They're scheduled to resume their deliberations on the expansion on June 14.
After hearing about 10 hours of testimony, five of the seven commissioners said they would support Metro's proposed 1,985-acre expansion if the regional government provides them with certain information by June 14.
What information? Chiefly, commissioners wanted to know how Metro decided which 9,800 acres, out of its 28,000-plus-acre urban reserve, that it would thoroughly evaluate for a possible expansion of the urban growth boundary.
Metro has said that the required analysis was done during the development of urban and rural reserves, and that data could transfer over to the boundary review. And, Metro said, it simply didn't look at areas that were far-flung from the UGB, nor areas that were unlikely to be developed anytime soon because of governance issues.
Commissioner Tim Josi summed it up: "That's the place where you had the weakest findings, and the place where you have to use common sense," he said.
The challenge for Metro staff is to point to places in the 10,000-page record on the 2011 decision that indicate how the narrowing from 28,000 to 9,800 was legal.
Commissioners seemed ready to give Metro a pass on the state's Goal 9 requirements for inventorying employment lands, thanks to a threat of a lengthy review from Metro land use attorney Dick Benner and some flexibility in the state rules.
The state regulations say that the employment lands analysis should be "appropriate for the size of a jurisdiction." State regulators had always taken that to mean that small towns don't have to go through the same level of review of employment land as a city with a dedicated planning staff.
But with 70,000 acres to inventory, Benner argued that it would be inappropriate to go through all the Portland region's employment lands and assess the factors required by state law, like how visible the site is from a freeway.
Benner said such a review could take two years.
"It's not that big of a project, is it?" Chair Marilyn Worrix asked Rob Hallyburton of the state's land conservation department.
He said he didn't know what level of analysis might be required under the "appropriate for the size" requirement.
"I can't disagree with Dick… it might very well be a lot of work," Hallyburton said.
Commissioners are now challenged with preparing a ruling that has a chance at surviving a likely challenge to the Oregon Court of Appeals. They left little doubt they were ready to head in that direction on Friday.
"I am of the mind that the additions to the urban growth boundary are OK with me, and what we're dealing with is how we justify that," said Commissioner Greg Macpherson.
Commissioner Sherman Lamb said he was moved by the argument from attorney Michael Robinson, who represented Hillsboro at the hearing. Robinson said Thursday that the best move for the process would be to let the appeals court review the boundary expansion soon, so that Metro can use the court's feedback to guide its next decision if the court rejects the expansion.
"I'd like to be able to say yes to this, but my concern is, can we make it legally defensible?" Lamb said.
Josi, a former state legislator from Tillamook, said he's wondered for years whether Metro was viable and had value for the state.
"I am of the conclusion today that Metro has a lot of value," he said. "I'm also of the conclusion that we need to make every effort we can to get to yes on this."
Worrix said she agreed.
"We should do everything we can to find a yes," she said.
Commissioner Hanley Jenkins didn't signal whether he was ready to work towards approving the boundary. And Commissioner Jerry Lidz said he might be more comfortable with a limited remand
If the commission signs off on the expansion next month, the most likely appellant would be 1000 Friends of Oregon. Its attorney, Mary Kyle McCurdy, said the group had not decided whether it would appeal a potential approval of the boundary expansion.
But, she said, Metro and the cities within it need to do more to spur development within the urban growth boundary.
"Metro and the jurisdictions in the region need to get serious about the policy and investment decisions that are going to be necessary on the land they already have," she said. Where Metro and Washington County cities heard promises of a new way of bringing about development in UGB expansion areas near Hillsboro and Beaverton, McCurdy said she heard a familiar tune.
"Every promise you heard today about South Hillsboro, we heard about Bethany," she said.