Barkers Five, LLC v. Land Conservation

• Decision Date: 20 February 2014
• Docket Number: A152351.,12ACK001819
• Citation: 261 Or.App. 259,323 P.3d 368
• Parties: BARKERS FIVE, LLC; Sandy Baker; City of Tualatin; City of West Linn; Carol Chesarek; Cherry Amabisca; Save Helvetia; Robert Bailey; 1000 Friends of Oregon; Dave Vanasche; Bob Vanderzanden; Larry Duyck; Springville Investors, LLC; Katherine Blumenkron; David Blumenkron; Metropolitan Land Group; Chris Maletis; Tom Maletis; Exit 282A Development Company, LLC; LFGC, LLC; Elizabeth Graser–Lindsey; and Susan McKenna, Petitioners, v. LAND CONSERVATION AND DEVELOPMENT COMMISSION, Metro, Washington County, Clackamas County, Multnomah County, State of Oregon, and City of Hillsboro, Respondents.
• Court: Oregon Court of Appeals

261 Or.App. 259
323 P.3d 368

BARKERS FIVE, LLC; Sandy Baker; City of Tualatin; City of West Linn; Carol Chesarek; Cherry Amabisca; Save Helvetia; Robert Bailey; 1000 Friends of Oregon; Dave Vanasche; Bob Vanderzanden; Larry Duyck; Springville Investors, LLC; Katherine Blumenkron; David Blumenkron; Metropolitan Land Group; Chris Maletis; Tom Maletis; Exit 282A Development Company, LLC; LFGC, LLC; Elizabeth Graser–Lindsey; and Susan McKenna, Petitioners,
v.
LAND CONSERVATION AND DEVELOPMENT COMMISSION, Metro, Washington County, Clackamas County, Multnomah County, State of Oregon, and City of Hillsboro, Respondents.

12ACK001819; A152351.

Court of Appeals of Oregon.

Argued and submitted Jan. 16, 2013.
Decided Feb. 20, 2014.

[323 P.3d 372]

Wendie L. Kellington argued the cause for petitioners Barkers Five, LLC, and Sandy Baker. With her on the brief were Wendie L. Kellington, P.C., and Kristian Roggendorf, Matthew D. Lowe, and O'Donnell Clark & Crew LLP.

Jeffrey G. Condit argued the cause for petitioners City of Tualatin and City of West Linn. With him on the brief was Miller Nash LLP.

Michael F. Sheehan argued the cause and filed the brief for petitioners Carol Chesarek and Cherry Amabisca.

Carrie A. Richter argued the cause for petitioners Save Helvetia and Robert Bailey. With her on the brief were Edward J. Sullivan and Garvey Schubert Barer.

Mary Kyle McCurdy argued the cause and filed the brief for petitioners 1000 Friends of Oregon, Dave Vanasche, Bob VanderZanden, and Larry Duyck.

Christopher James argued the cause for petitioners Springville Investors, LLC, Katherine

[323 P.3d 373]

Blumenkron, and David Blumenkron. With him on the brief were Cameron Soran and The James Law Group, LLC.

Steven L. Pfeiffer argued the cause for petitioner Metropolitan Land Group and petitioners Chris Maletis, Tom Maletis, Exit 282A Development Company, LLC, and LFGC, LLC. With him on the briefs were Seth J. King and Perkins Coie LLP.

Elizabeth Graser–Lindsey and Susan McKenna filed the brief pro se.

Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondents Land Conservation and Development Commission and State of Oregon. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Roger A. Alfred argued the cause for respondent Metro. With him on the brief were Alison Kean Campbell and Office of Metro Attorney.

Alan A. Rappleyea, County Counsel, argued the cause for respondent Washington County. With him on the brief were Jacquilyn Saito–Moore, Assistant County Counsel, and Office of Washington County Counsel.

Rhett C. Tatum, Assistant County Counsel, argued the cause for respondent Clackamas County. With him on the brief was Stephen L. Madkour, County Counsel.

Jed Tomkins argued the cause for respondent Multnomah County. With him on the brief was Jenny M. Morf, County Attorney.

Christopher D. Crean argued the cause for respondent City of Hillsboro. With him on the brief were Pamela J. Beery, Chad Jacobs, and Beery, Elsner & Hammond, LLP.

Before HASELTON, Chief Judge, and SERCOMBE, Judge, and DEITS, Senior Judge.

HASELTON, C.J.

TABLE OF CONTENTS

I.	Introduction	374
II.	Statutory and Regulatory Framework	375

A.	Senate Bill 1011 (2007)	375
B.	The Statutory Framework (ORS 195.137–195.145)	378

1.	Process for Designation of Urban Reserves	378
2.	Process for Designation of Rural Reserves	380
3.	Intergovernmental Coordination and Cooperation	380
4.	LCDC Rulemaking Authority	381

C.
The Regulatory Framework (OAR chapter 660, division 27)
381

III.	Procedural History	384
IV.	Preliminary Contentions: “Clearing the Decks”	387
V.	Unlawful in Substance Contentions: Compliance with “Amount of Land Standard” and Statewide Planning Goals	387

A.	“Amount of Land Standard” in OAR 660–027–0040(2)	387
B.	Statewide Planning Goals	388

1.	Application of Economic Development Goal (Goal 9)	388
2.	Use of Urban Growth Report to Project Land Needs (Goals 2 and 14)	390
3.	Assessment of Carrying Capacity (Goals 2, 3, 4, 5, 6, 8, 9, 10, 12, and 14)	390

VI. Unlawful in Substance Contentions: “Consideration” and “Application” of the Reserve Factors and the Meaning and Application of the “Best Achieves Standard”
390

A.
Validity of LCDC's Legal Premises: “Consideration” and “Application” of the Reserve Factors
390

1.	“Consideration” of “Factors” in the Manner of Goal 14	391
2.	Application of the Factors to “Areas”	394
3.	Application of the Factors to Alternative Areas within a County	397
4.	Application of Rural Reserve Factors, Urban Reserv e Factors, or Both to Each Area	398
5.	Determination Whether to Designate an Area As Urban or Rural Reserves or to Leave It Undesignated	399

B.
Validity of LCDC's Legal Premises: The “Best Achieves Standard”
400

1.	Standard Is Qualitative Not Quantitative	400
2.	Standard Applies to Designation “In Its Entirety' ‘ Not to Designation of Individual Properties or Areas	401
3.	”Best Achieves Standard” Allows for a Range of Permissible Regional Designations	401
4.	Satisfaction of Standard Is Demonstrated through Findings Concerning Application of the Reserve Factors	403

VII. Petitioners' Particularized Challenges
404

A.	LCDC Properly Understood That Designation Was Not a “Political” Decision	404
B.	Washington County	404

1.	Misapplication of Rural Reserve Factors	404
2.	Effect of Washington County's Misapplication of th e Rural Reserve Factors	411

C.
Clackamas County
412

1.	Application of OAR 660–027–0060(4), aka the “Safe Harbor Provision,” to Area 4J and Clackamas County's Revised Rural Reserve Findings on Remand	412
2.	Clackamas County's Application of the Rural Reserve Factors	413

D.
Multnomah County
414

1.	”Balancing” of the Factors	414
2.	Adequacy of Multnomah County's Consideration of Rural Reserve Factors Pertaining to Area 9D	414

VIII. Unlawful in Substance Contentions: LCDC's Substantial Evidence Review
419

A.	Standard of Review for Substantial Evidence	419
B.	LCDC's Understanding of Substantial Evidence Review	420
C.	Petitioners' Particularized Challenges	421

1.	Washington County	421
2.	Clackamas County	421

a.	Designation of Area 4J As Rural Reserve	421
b.	Designation of Areas 4A to 4D As Urban Reserve	424
c.	Remaining Contentions	428

3.
Multnomah County
428

IX. Conclusion
428

[323 P.3d 374]

I. INTRODUCTION

This case concerns the designation of urban and rural reserves in the Portland metropolitan area that will guide its growth until 2060.¹ Metro, in conjunction with Clackamas, Multnomah, and Washington counties, designated such reserves under a new process that had been established by the legislature in 2007, and, in June 2010, they submitted their designation to the Land Conservation and Development Commission (LCDC) for review. See generallyORS 197.626(1)(c), (f) (providing for LCDC review of urban and rural reserves). Ultimately, in August 2012—approximately one year after LCDC voted to acknowledge a revised submittal—

[323 P.3d 375]

LCDC issued its 156–page, single-spaced acknowledgment order.

Twenty-two petitioners—including property owners, nonprofit and citizen groups, and municipalities—seek judicial review of that order. In hundreds of pages of briefing, they raise 25 assignments of error that are predicated on a record that consists of approximately 36,000 pages.² Collectively, petitioners' assignments of error range from fundamental methodological issues pertaining to LCDC's understanding and application of the legal principles that govern the designation of reserves to the correctness of LCDC's substantial evidence review of Metro and the counties' designation of particular land as either urban or rural reserves. Simply stated, petitioners contend that LCDC's order is unlawful in substance because, in reviewing Metro and the counties' designation, LCDC misapplied the legal principles governing the designation of urban and rural reserves and circumscribing its review.

As explained in greater detail below, we reject petitioners' contentions pertaining to, among other things, (1) the validity of the rules governing the designation of urban and rural reserves in this case (OAR chapter 660, division 27); (2) Metro's authority to designate reserves outside of its service district boundary; (3) whether too much land was designated as urban reserve under OAR 660–027–0040(2); and (4) whether the designation complies with particular Statewide Planning Goals. We also uphold nine fundamental legal premises underlying LCDC's review of the designation—that is, legal premises concerning Metro and the counties' “consideration” and “application” of the reserve factors and the meaning and application of OAR 660–027–0005(2) (otherwise known as the “best achieves standard”). Further, we reject most of petitioners' contentions concerning whether LCDC properly applied the substantial evidence standard of review.

Nevertheless, we conclude that LCDC erred in four respects. In particular, LCDC erred in (1) approving Washington County's misapplication of the rural reserve factors pertaining to agricultural land; (2) concluding that Multnomah County had adequately “considered” the rural reserve factors pertaining to Area 9D; (3) concluding that it has authority to affirm a local government's decision where its findings are inadequate if the evidence “clearly supports” the decision; and (4) failing to meaningfully explain why—even in light of weighty countervailing evidence—Metro and the counties' designation of Areas 4A to 4D (commonly referred to as Stafford) as urban reserves is supported by substantial evidence.

Accordingly, because LCDC's order is unlawful in substance in various respects, we reverse and remand LCDC's order for further action consistent with the principles expressed in this opinion. ORS 197.651(10)(a) (providing that “[t]he Court of Appeals shall reverse or remand the order only if the court finds the order is[,]” among other things, “[u]nlawful in substance”).

II. STATUTORY AND REGULATORY FRAMEWORK

To provide necessary context, before turning to the procedural history of this case and the parties' specific contentions on judicial review, we describe the general...