May 20, 2024

Can NIMBY Activists Advance Voter Initiatives to Overturn UGB Expansions?



Despite legislation and a looming election, Washington County Superior Court punts matter to an uncertain date

Since the times of Governor Tom McCall, Oregon cities both large and small have been obligated to periodically plan for growth in a highly structured and controlled manner. Long gone are the days when cities would merely work with property owners and residents to decide where future growth should go.

Instead, cities now follow a detailed and prescriptive set of state laws and administrative rules that limit where, when, and by how much they can grow. At the same time, another set of state regulations require cities to plan for growth and expand their boundaries in order to accommodate future jobs and housing (the amount of which the state also has final say in determining). This has led to a de facto system whereby cities merely follow a prescribed path when expanding housing and employment opportunities, as well as urban growth boundary expansions.

These processes have become substantially administrative in nature, and cities lack the general legislative and policy-making authority they exercise over other subjects. Instead, these local decisions implement policy decisions that have already been made at the state level.

After a city or Metro adopts an urban growth boundary (UGB) decision pursuant to this regulatory framework, they must submit all changes to the Department of Land Conservation and Development (DLCD) for review and approval. The DLCD director must either approve the local decision, send the decision back to the local government for revision, or refer it to the Land Conservation and Development Commission (LCDC) for a hearing and decision. In addition, a director’s decision to approve or remand a local UGB decision may be appealed to LCDC by parties who participated in hearings at the local level. Thus, the state has mandated the substantive rules and prescribed a state review process for all important decisions about growth.

For over 15 years, North Plains, a semi-rural city located west of Hillsboro in Washington County, has studied its potential growth, and decided to follow state requirements for expanding its urban growth boundary. There is little- to no-usable vacant land within the city boundaries, housing is scarce, and the city lacks commercial and industrial land desperately needed to support jobs, provide amenities for local residents, and stabilize the city’s tax base.

Earlier attempts to expand sputtered, but the city kept trying. The most recent attempt at growth included months of community engagement, hundreds of thousands of dollars in costly analysis, and communitywide effort to craft consensus on a series of challenging questions.  After all was said and done, and with broad based resident support, the City Council voted to expand the North Plains Urban Growth Boundary in 2023.

Despite all the city’s years of hard work, not everyone was satisfied. A group of people who mostly live outside the city – many of them in unincorporated Washington County and well beyond the proposed expansion area – challenged the expansion, because it might eventually bring housing and people closer to them. Their challenge would go nowhere in the state-prescribed appeal process because the city did everything the state required, from accepting its share of new people, to holding many public meetings, to gaining state endorsement of $275,000 to fully concept plan the proposed areas.

When the state legislature heard that these opponents were calling for a vote on the expansion, it acted decisively: it adopted a statute that said that because the legislature and agencies have already established state-wide policy for UGB decisions, the city’s decision is simply an administrative decision that implements those policies and thus cannot be referred to the ballot without violating those very policies. As a result, the election should not be held.

Always resourceful, the opponents sued to keep the election going forward. The judge did what most judges would do: preserved the status-quo and told the city to keep the election on the ballot, at least until a final decision is made in the courts.

So now the issue may go to trial long after the election date.  To be clear, if local decisions that implement statewide planning laws can be referred to the ballot, then the Oregon land use system will be rocked – in the direction of local control and not the public’s interest in consistent planning laws that benefit the whole state. If not, then local governments will be able to point to the state when citizens complain and redirect the hostility to the state.

Tags: Construction, Real Estate and Land Use, Construction and Development, Homebuilding, Local Governments and Special Districts

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