and submitted December 4, 2018
Or.App. 727] Land Conservation and Development Commission
18ACK001894, 18ACK001894, 18ACK001894, 18ACK001894
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.
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.
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.
A. Alfred argued the cause and filed the brief for respondent
K. Boderman argued the cause for respondent Clackamas County.
Also on the brief was Stephen L. Madkour.
Tomkins argued the cause for respondent Multnomah County.
Also on the brief was Jenny M. Madkour.
Or.App. 728] Before Hadlock, Presiding Judge, and Aoyagi,
Judge, and Sercombe, Senior Judge.
Or.App. 729] HADLOCK, P. J.
next few decades, growth in the Portland metropolitan area
will be guided by the designation of urban and rural
reserves. 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. 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.
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. We reject
petitioners' remaining arguments without extended
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
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.
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.
after we issued Barkers Five, the legislature passed
House Bill (HB) 4078 (2014), which became effective on April
1, 2014. 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. 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
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 ...