1000 Friends of Oregon v. Wasco County Court
Jurisdiction | Oregon |
Parties | 1000 FRIENDS OF OREGON, the assumed name of Oregon Land Use Project, Inc., an Oregon nonprofit corporation, Kelly McGreer, Rosemary McGreer, James G. Perkins, Shirlee Perkins, David Dickson and Melinda Dickson, Respondents-Cross-Petitioners, v. WASCO COUNTY COURT, Respondent-Cross-Respondent, David Knapp, Richard Dennis Smith, Kent Bullock, Samadhi Matthews, and Chidvalis Ra jneesh Meditation Center, Petitioners-Cross-Respondents. CA 81-132; CA A29802. . On Petitions for Reconsideration |
Citation | 686 P.2d 375,68 Or.App. 765 |
Court | Oregon Court of Appeals |
Decision Date | 20 April 1984 |
Allen L. Johnson and Johnson & Kloos, Eugene, for petitioners-cross-respondents.
Robert E. Stacey, Jr., and Mark J. Greenfield, Portland, for respondents-cross-petitioners.
Dave Frohnmayer, Atty. Gen., William F. Gary, Deputy Atty. Gen., James E. Mountain, Jr., Sol. Gen., Michael B. Huston and Jeff Bennett, Asst. Attys. Gen., Salem, for Land Conservation and Development Commission.
Petitioners Land Conservation and Development Commission (LCDC) and 1000 Friends of Oregon (1000 Friends) petition for Supreme Court review of our decision in 1000 Friends of Oregon v. Wasco County Court, 67 Or.App. 418, 679 P.2d 320 (1984) (hereafter Wasco County II), in which we reversed and remanded for reconsideration an order of the Land Use Board of Appeals (LUBA). The LUBA order held, inter alia, that the decision of respondent Wasco County Court (County) to approve a petition to incorporate the City of Rajneeshpuram was unlawful in substance because no Goal 2, Part II exception to Statewide Planning Goal 14, OAR 660-15-000(14), had been taken as required by LCDC goals and LCDC rule. We reversed, holding that LUBA erroneously interpreted 1 Goal 14 to preclude incorporation of rural land outside an established urban growth boundary. Treating the petitions as seeking reconsideration, ORAP 10.10, we grant the petitions, withdraw our former opinion and affirm LUBA's order. 2
The pertinent facts are set out in our former opinion and will not be repeated here. This case presented an interpretive issue of first impression for LCDC (and for this court)--how do the Statewide Planning Goals, and particularly Goal 14, apply to the incorporation of a city?
In this case, LCDC adopted an interpretation of Goal 14 that it considered a logical extension of, if not identical to, the agency's prior interpretations in other contexts. The interpretation also serves the clear purpose of the goal and is supported by the goal's language. We nonetheless rejected LCDC's interpretation of Goal 14 and developed our own. LCDC's petition states:
We agree.
We first consider LCDC's claim for the applicability of Goal 14 as that agency has interpreted it, which can be summarized in a relatively simple four-step analysis:
Step 1: The effect of an incorporation is to make available for urbanization land that otherwise would have to be rural.
Step 1 is derived from the language and intent of Goal 14 and the related goal definitions of urban, urbanizable and rural land. The basic aim of Goal 14 is "to provide for an orderly and efficient transition from rural to urban land use." Under the definitions, the existence of a city is a prerequisite for "urban land." Thus, in the absence of a city, there can be no urban land. Where there is no urban land, there can be no urbanizable land "needed for the expansion of an urban area." Therefore, under Goal 14, there cannot be an urban growth boundary "to identify and separate urbanizable land from rural land" in the absence of an incorporated city. Thus, the effect of incorporation is to make available for urban uses land that otherwise Goal 14 would require to be rural land. This court recognized as much in 1000 Friends of Oregon v. Wasco County Court, 62 Or.App. 75, 81-82, 659 P.2d 1001, rev. den. 295 Or. 259, 668 P.2d 381 (1983) ( ), 3 when we stated:
(Emphasis supplied; footnote omitted).
Step 2: Goal 14 prohibits urbanization of land outside urban growth boundaries.
Step 2 is supported by the language and clear purpose of Goal 14. It also reflects the holdings of at least four LCDC or LUBA decisions and one opinion of this court.
The purpose of Goal 14 is "to provide for an orderly and efficient transition from rural to urban land use." Toward this end, Goal 14 requires that urban growth boundaries be established "to identify and separate urbanizable land from rural land." Implicit in this purpose and requirement is a prohibition against allowing rural land to be urbanized outside a UGB. If such a prohibition did not exist, the language and basic purpose of Goal 14 would be totally undermined. That is the interpretation previously utilized by LCDC and LUBA. Ashland v. Jackson County, 2 Or. LUBA 378 (1981); Conarow v. Coos County, 2 Or. LUBA 190 (1981); Wright v. Marion County Board of Commissioners, 1 Or. LUBA 164 (1980); Sandy v. Clackamas County, 3 LCDC 139 (1979). This court also accepted that interpretation of Goal 14, albeit with little discussion, in Carmel Estates Inc. v. LCDC, 66 Or.App. 113, 672 P.2d 1245 (1983). In that case, LCDC concluded that the county's zoning of land outside an urban growth boundary for urban-level commercial development violated Goal 14's prohibition. We expressly affirmed that holding. 66 Or.App. at 117 n. 2, 672 P.2d 1245.
Step 3: Therefore, Goal 14 prohibits incorporation of a city on land outside an urban growth boundary.
The effect of incorporation is to make land available for urbanization (Step 1). Urbanization of land outside urban growth boundaries is prohibited by Goal 14 (Step 2). If Steps 1 and 2 are accepted, it necessarily follows, as a matter of simple logic, that Goal 14 prohibits incorporation outside an urban growth boundary. (Step 3).
Step 4: Because Goal 14 prohibits incorporation of a city on land outside an urban growth boundary, an exception to the goal must be taken to allow such an incorporation.
Step 4 is consistent with, if not compelled by, the language of the goal and also follows logically from the first three steps. Under former Goal 2, Part II (amended December 30, 1983), an exception is required when "it appears that it is not possible to apply the appropriate goal to specific properties or situations." 4 If the first three steps of the above analysis are correct, then it is not possible to apply Goal 14 when a city is incorporated outside an urban growth boundary, and an exception must be taken.
In our former opinion, we recognized LCDC's theory, but rejected it. Instead, we took the view--"a dramatically different" one, according to LCDC--that Goal 14 controls the conversion of rural land to urban uses only through the specific process of establishing an urban growth boundary. 1000 Friends of Oregon v. Wasco County Court, supra, 67 Or.App. at 432, 679 P.2d 320. Our conclusion was based on the fundamental assumption that "urbanization of rural land is [not] the inevitable consequence of incorporation," because Goal 14's requirements for a UGB control such conversion. 67 Or.App. at 427, 679 P.2d 320. Without that assumption, it would have been impossible for us to conclude, as we did, that incorporation does not violate the urbanization and conversion provisions of the goal. 67 Or.App. at 432, 679 P.2d 320. With specific reference to the four-step analysis described above, our assumption is a rejection only of Step 1--that incorporation makes available for urbanization land that otherwise would be rural.
On reconsideration, we now conclude that our assumption is erroneous and represents a misstatement of Goal 14's UGB establishment process. The goal's seven factors for establishing a UGB are intended to determine how much land and which land may be included in a UGB. They do not, however, address the threshold question of whether any land should be converted to urban uses. 5
The seven factors are set forth in Goal 14:
We analyzed the seven factors in City of Salem v. Families for Responsible Govt., 64 Or.App. 238, 668 P.2d 395, rev. allowed 296 Or. 236, 675 P.2d 490 (1983). There, we noted that LCDC has characterized the first two factors as the "need" factors and the last five factors as the "locational" factors. The first two require a city to show a need for the amount of land to be included in the UGB, and the last five require a city to choose and justify which land areas are to be used to satisfy that need. 64 Or.App. at 243, 668 P.2d 395. In short, the only issues are how big and where the UGB will be.
Thus, once a city exists, it is virtually a...
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