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Barkers Five, LLC v. Land Conservation and Development Commission

Court of Appeals of Oregon

October 9, 2019

BARKERS FIVE, LLC and Sandy Baker, Petitioners,
v.
LAND CONSERVATION AND DEVELOPMENT COMMISSION, Metro, Clackamas County, and Multnomah County, Respondents. 299 Or.App. 726 METROPOLITAN LAND GROUP, Petitioner,
v.
LAND CONSERVATION AND DEVELOPMENT COMMISSION, Metro, Clackamas County, and Multnomah County, Respondents. SPRINGVILLE INVESTORS, LLC, an Oregon limited liability company; Burnham Farms, LLC, an Oregon limited liability company; David Blumenkron, an individual; Katherine Blumenkron, an individual; and Robert Zahler, an individual, Petitioners,
v.
LAND CONSERVATION AND DEVELOPMENT COMMISSION, Metro, Clackamas County, and Multnomah County, Respondents. LANPHERE CONSTRUCTION AND DEVELOPMENT, LLC., Petitioner,
v.
LAND CONSERVATION AND DEVELOPMENT COMMISSION, Metro, Clackamas County, and Multnomah County, Respondents.

          Argued and submitted December 4, 2018

          [299 Or.App. 727] Land Conservation and Development Commission 18ACK001894, 18ACK001894, 18ACK001894, 18ACK001894

          Wendie L. Kellington argued the cause for petitioners Barkers Five, LLC, and Sandy Baker. Also on the briefs were Kellington Law Group, P.C.; Matthew D. Lowe and Jordan Ramis PC.

          Sara Kobak argued the cause for petitioner Metropolitan Land Group. Also on the briefs were Michael C. Robinson and Schwabe, Williamson & Wyatt, RC.

          Christopher James argued the cause for petitioners Springville Investors, LLC, Burnham Farms, LLC, David Blumenkron, Katherine Blumenkron, and Robert Zahler. Also on the briefs was The James Law Group, LLC.

          Jeff Bachrach argued the cause and filed the briefs for petitioner Lanphere Construction and Development, LLC.

          Patrick M. Ebbett, 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.

          Roger A. Alfred argued the cause and filed the brief for respondent Metro.

          Nathan K. Boderman argued the cause for respondent Clackamas County. Also on the brief was Stephen L. Madkour.

          Jed Tomkins argued the cause for respondent Multnomah County. Also on the brief was Jenny M. Madkour.

          [299 Or.App. 728] Before Hadlock, Presiding Judge, and Aoyagi, Judge, and Sercombe, Senior Judge.

         [299 Or.App. 729] HADLOCK, P. J.

         For the next few decades, growth in the Portland metropolitan area will be guided by the designation of urban and rural reserves.[1] Responding to a legislative charge to designate such reserves, Metro and Clackamas, Multnomah, and Washington counties jointly submitted a designation to the Land Conservation and Development Commission (LCDC) for its review in 2010. LCDC voted to acknowledge that joint submittal, as revised in 2011, and it issued an order acknowledging the submittal in 2012. On judicial review, we upheld LCDC's understanding of the foundational legal principles that govern designation of urban and rural reserves. Barkers Five, LLC v. LCDC, 261 Or.App. 259, 323 P.3d 368 (2014) (Barkers Five). However, we concluded that LCDC had erred in applying those principles with respect to certain areas in each of the three counties. See id. at 363-64 (summarizing the reasons that LCDC's order was unlawful in substance). We therefore reversed and remanded the order. After further proceedings on remand- as well as intervening legislation, which we discuss below- another joint submittal was submitted to LCDC, which issued an acknowledgement order in 2018 approving the submittal. Petitioners now challenge that 2018 acknowledgement order.[2] As in Barkers Five, petitioners' assignments of error involve (1) fundamental issues concerning the validity and application of several of LCDC's administrative rules-including the "safe harbor" provision of OAR 660-027-0060(4)-and its application of the legal principles governing the designation of reserves; (2) the correctness of [299 Or.App. 730] LCDC's substantial evidence review; and (3) general contentions that much of the decision-making involved in the reserves-designation process was impermissibly political. Having reviewed the voluminous record and considered each of the arguments presented on judicial review, we affirm.

         In this opinion, we write primarily to address two of the contentions that petitioners raise on judicial review. Described broadly, those arguments are as follows. First, petitioners MLG, Springville, and Barkers challenge LCDC's order on the ground that the joint submittal reflected a failure by Metro and the counties to properly analyze whether the designated urban and rural reserves satisfy the "best achieves standard" that applies to urban and rural reserve designations in their entirety. Second, MLG and Springville contend that, on remand from our 2014 decision, Metro and Multnomah County should have reconsidered-but did not reconsider-all of the Multnomah County reserve designations; petitioners conclude that LCDC's order is unlawful in substance because it approved the joint submittal, which reflects that purported failing. We explain below why we are not persuaded by either of those arguments.[3] We reject petitioners' remaining arguments without extended discussion.

         To provide context for the analysis that follows, we summarize the governing legal principles and pertinent aspects of the proceedings to this point. The 2007 legislature adopted a process and substantive guidelines for the designation of urban and rural reserves "to provide 'greater certainty' to commerce, industry, private land owners, and providers of public services by 'facilitat[ing] long-range planning' for both urban and rural uses." Barkers Five, 261 Or.App. at 271 (quoting ORS 195.139 (brackets in Barkers Five)). That legislation, codified in ORS chapter 195, specified certain factors that Metro and the counties must consider in the designation process. Id. at 271-75. For land proposed for designation as urban reserves, those factors relate to various [299 Or.App. 731] aspects of urban development, including density, infrastructure, urban economics, housing, education and other public facilities, walkability, and ecology. Id. at 272-73 (citing ORS 195.145(5)). For proposed rural reserves, the specified factors generally relate to whether the land is capable of and suitable for agriculture and whether it is in '"an area that is otherwise potentially subject to urbanization[.]'" Id. at 274-75 (quoting ORS 195.141(3)).

         In addition, two overarching principles guide the designations. First, an "amount of land standard" requires the designation of an amount of urban reserves sufficient to accommodate population and employment growth for "a period between 20 and 30 years beyond the 20-year [urban growth boundary (UGB)] planning period." Id. at 273 (explaining ORS 195.145(4)). Second, as articulated in an LCDC rule that describes the reasons for designating urban and rural reserves, the overriding "objective" of the designation process is:

"a balance in the designation of urban and rural reserves that, in its entirety, best achieves livable communities, the viability and vitality of the agricultural and forest industries and protection of the important natural landscape features that define the region for its residents."

OAR 660-027-0005(2) (emphasis added). That objective, discussed at length in Barkers Five, is referred to as the "best achieves standard." Barkers Five, 261 Or.App. at 311-18.

         With that context in mind, we turn to the procedural history of this case, as summarized in Barkers Five and in unchallenged parts of the 2018 LCDC acknowledgement order that is the subject of this opinion. After LCDC issued its initial 2012 acknowledgement order, 22 petitioners sought judicial review, raising both broad challenges to the legal premises underlying LCDC's decision and specific challenges to the reserves designations of particular areas of land. Barkers Five, 261 Or.App. at 264. Ultimately, we upheld the "fundamental legal premises underlying LCDC's review of the submittal," rejecting challenges to the meaning of the best achieves standard. Id. at 363. However, as pertinent here, we concluded that LCDC had erred in several respects, one that related to Washington County's [299 Or.App. 732] application of the rural reserve factors to agricultural land, one that related to Multnomah County's consideration of factors pertaining to the rural reserve designation of Area 9D, and one that related to LCDC's substantial evidence review of the Stafford's urban reserve designation. Id. at 364. Accordingly, we reversed and remanded the order for further proceedings. Id.

         Shortly after we issued Barkers Five, the legislature passed House Bill (HB) 4078 (2014), which became effective on April 1, 2014.[4] Among other things, that bill established urban reserves and rural reserves in Washington County, thus removing the question of reserves designations in that county from the scope of the task on remand from this court.[5] Overall, HB 4078 reduced the quantitative amount of urban reserves in Washington County by 3, 210 acres as compared to the amount that LCDC had upheld in the 2012 acknowledgement order.

         LCDC subsequently issued an order remanding "Rural Reserve Area 9D to Multnomah County and Metro," as well as "Urban Reserve Areas 4A, 4B, 4C, and 4D"- the areas commonly referred to as Stafford-"to Metro and Clackamas County" so those governments could take "further action consistent with the principles expressed in Barkers FiveW The order contemplated that Metro and the counties would prepare a new joint submittal and it specified that LCDC would review the new submittal for compliance with the ...


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