Marks v. Land Conservation & Dev. Comm'n

• Docket Number: A175549
• Decision Date: 07 September 2023
• Citation: Marks v. Land Conservation & Dev. Comm'n, 327 Or.App. 708, 536 P.3d 995 (Or. App. 2023)
• Parties: David MARKS, Petitioner, v. LAND CONSERVATION AND DEVELOPMENT COMMISSION, City of Lake Oswego, City of Tualatin, City of West Linn, Metro, and Clackamas County, Respondents.
• Court: Oregon Court of Appeals

327 Or.App. 708

536 P.3d 995

David MARKS, Petitioner,

v.LAND CONSERVATION AND DEVELOPMENT COMMISSION, City of Lake Oswego, City of Tualatin, City of West Linn, Metro, and Clackamas County, Respondents.

A175549

Court of Appeals of Oregon.

Argued and Submitted November 16, 2022

September 7, 2023

E. Michael Connors, Portland, argued the cause for petitioner. Also on the briefs was Hathaway Larson LLP.

Robert M. Wilsey, Assistant Attorney General, argued the cause for respondent, Land Conservation and Development Commission. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Jeffrey G. Condit, Portland, argued the cause for respondents City of Lake Oswego, City of Tualatin, and City of West Linn. Also on the brief were Jason T. Loos and Evan P. Boone and Chad A. Jacobs.

Roger A. Alfred adopted the answering brief of respondents City of Lake Oswego, City of Tualatin, and City of West Linn in its entirety for respondent Metro.

Nathan K. Boderman and Stephen L. Madkour adopted the answering brief of respondents City of Lake Oswego, City of Tualatin, and City of West Linn in its entirety for respondent Clackamas County.

Before Shorr, Presiding Judge, and Mooney, Judge, and Pagan, Judge.

SHORR, P. J.

Petitioner, a private landowner, seeks judicial review of an order of the Land Conservation and Development Commission (LCDC) denying his petition for an enforcement order related to two intergovernmental agreements (IGAs) entered into by various public agencies, including the cities of West Linn, Lake Oswego, and Tualatin (together, the Cities). At bottom, petitioner's contention is that the public agencies have unlawfully created contractual barriers to the development and urbanization of the urban reserve known as Stafford.

In the order on review, LCDC determined that the two IGAs were not " ‘decisions’ that are subject to an enforcement order under ORS 197.320(12)," because the IGAs did not qualify as "land use decisions" under the "significant impact test."¹ As described further below, even if a government decision does not meet the statutory test for being a "land use decision" under ORS 197.015(10),² under the significant impact test, a government decision that has a "significant impact on present or future land use" is a land use decision. Billington v. Polk County , 299 Or. 471, 479-80, 703 P.2d 232 (1985). Thus, in effect, LCDC's order determined that, regardless of whether the public agencies unlawfully created contractual barriers to the urbanization of Stafford, petitioner could not obtain the relief he sought from LCDC.

The first of the two IGAs at issue in this case—the "5-Party IGA"—is an agreement between the Cities, Metro,³ and Clackamas County. The 5-Party IGA provides that no part of the Stafford urban reserve will be incorporated into Metro's Urban Growth Boundary (UGB) unless the city that will be responsible for annexing that part of Stafford develops a "concept plan" for it.⁴ The 5-Party IGA further provides that the timing for completion of any concept plan for any part of Stafford will be up to the annexing city. The second IGA entered into by the Cities—the "3-Party IGA"—places a temporary moratorium on the Cities adopting concept plans for the Stafford area and on any of the Cities promoting or supporting "any expansion of the UGB into any part of Stafford."

On review before us, petitioner contends, among other points, that "LCDC erred in determining the IGAs do not qualify as land use decisions under the significant impact test."⁵ Petitioner argues that the Cities have historically been opposed to the urbanization of Stafford, and the Cities having the "ability to indefinitely delay the Stafford Area from being considered for inclusion in the UGB" by delaying concept planning "will have a significant impact on future land uses in the Stafford Area." Respondents, the Cities, Metro, and Clackamas County, take the position that the "ultimate question in terms of impacts on future land uses is the decision whether the UGB will be expanded to bring in Stafford," and "that decision, under state law, remains with Metro" notwithstanding the IGAs. Therefore, in their view, the significant impact test is not met. Respondent LCDC argues that to have a " ‘significant impact’ on future land uses, the impact of a decision cannot be merely ‘potential,’ " and petitioner's significant impact argument "contains nothing but potentialities" hinging on a "hypothetical scenario where the cities, by delaying completion of their concept plans, prevent Metro from adding the area to the urban growth boundary."

For the reasons below, we agree with petitioner that the IGAs satisfy the significant impact test and that LCDC erred in concluding that they did not. We reverse and remand.

I. LEGAL CONTEXT AND HISTORICAL FACTS

Before turning to the pertinent historical facts and procedural history, we provide an overview of the legal context in which this case arises, including the importance of concept planning in Metro's UGB analysis, because how Metro utilizes concept plans is central to our analysis.

A. Metro, the Urban Growth Boundary, and Concept Plans

Metro is a metropolitan service district established pursuant to ORS chapter 268 that includes land in Clackamas, Multnomah, and Washington counties. ORS 197.015(14) ; ORS 268.020(3). Metro is responsible for coordinating land use planning in that tri-county region. ORS 195.025 ; ORS 268.385. Among Metro's responsibilities is the justification, adoption, and securing of acknowledgement for the metropolitan area UGB.⁶ See generally ORS 268.380 - 268.390 (describing Metro's planning and land use authority); Sensible Transportation v. Metro. Service Dist. , 100 Or App 564, 567, 787 P.2d 498, rev. den. , 310 Or. 70, 792 P.2d 104 (1990). The Land Use Board of Appeals (LUBA) has observed that, in assigning Metro the responsibility for justifying, adopting, and securing acknowledgment of the metropolitan area UGB, the Oregon Legislative Assembly "presumably determined adoption and administration of the metropolitan area UGB required Metro's unique regional perspective, rather than leaving adoption and administration of the UGB to the large number of cities and counties making up the metropolitan area." Sensible Transportation , 100 Or App at 567, 787 P.2d 498 (internal quotation marks omitted).

As part of its UGB-related responsibilities, Metro must conduct a review of the metropolitan area UGB every six years to ensure that it continues to maintain a 20-year supply of urbanizable land within the UGB. ORS 197.299. If Metro determines that the land supply is inadequate, it must expand the UGB or take other measures to ensure that the identified need can be accommodated. ORS 197.296(6) ; ORS 197.299(2).

"Urban reserves" are lands outside of a UGB that will provide for "future expansion [of the UGB] over a long-term period" and ensure "[t]he cost-effective provision of public facilities and services within the area when the lands are included within" the UGB. ORS 195.137(2). ORS 195.145(4)(b) provides for designation of urban reserves to accommodate population and employment growth for at least 20 years, and not more than 30 years, beyond the 20-year land supply accommodated within the UGB. Once designated, urban reserve lands become "first priority" for inclusion within the UGB. ORS 197.298(1)(a).

In considering where to expand the UGB, Metro's analysis must comply with, among other laws, Goal 14, which includes four "location" factors that Metro must consider when determining which urban reserve land to add to the UGB. The four location factors are "(1) [e]fficient accommodation of identified land needs; (2) [o]rderly and economic provision of public facilities and services; (3) [c]omparative environmental, energy, economic and social consequences; and (4) [c]ompatibility of the proposed urban uses with nearby agricultural and forest activities occurring on farm and forest land outside the UGB."⁷

Although Goal 14 does not mention that the existence of a "concept plan" should play a role when determining which urban reserve land should be added to the UGB, Metro Code (MC) 3.07.1425 sets forth "factors and criteria for amendment of the UGB," which include "whether the area has been concept planned."

The requirements for the contents of "concept plans," as that term is used by Metro, are set forth at MC 3.07.1110(c). Among other information, as noted above, concept plans must "show the general locations of any residential, commercial, industrial, institutional and public uses proposed for the area with sufficient detail to allow estimates of the cost of [certain specified] public systems and facilities." Id. Concept plans are used to "guide, but not bind" (1) "conditions in the Metro ordinance that adds the area to the UGB" and (2) "amendments to city or county comprehensive plans or land use regulations following addition of the area to the UGB." MC 3.07.1110(d).

Under MC 3.07.1110(a), concept plans are generally required before land is added to the UGB: MC 3.07.1110(a) provides that the "county responsible for land use planning for an urban reserve and any city likely to provide governance or an urban service for the area, shall, in conjunction with Metro and appropriate service districts, develop a concept plan for the urban reserve prior to its addition to the UGB ." (Emphasis added.) The date for completion of a concept plan and the area of urban reserves to be planned under MC 3.07.1110(a) is jointly "determined by Metro and the county and city or cities."

The Metro Code provides an exception to the general requirement that concept planning occur before land is added to the UGB. Specifically, MC 3.07.1110(e) provides:

"If the local governments responsible for completion of a concept plan under this section are unable to reach agreement on a concept plan by the date set under subsection (a), then the Metro Council may nonetheless add the area to

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