HASELTON, C.J.
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 Reserve 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 the 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
This case concerns the designation of urban and rural reserves in the Portland metropolitan area that will guide its growth until 2060.
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.
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").
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 statutory and regulatory framework that governed the designation of urban and rural reserves in this case. That framework finds its origin in Senate Bill (SB) 1011 (2007).
Metro is a metropolitan service district established pursuant to ORS chapter 268,
Before the 2007 legislative session during which SB 1011 was enacted, Metro — as well as others — identified deficiencies in the process by which Metro managed and expanded the regional UGB. Specifically, Randy Tucker, Legislative Affairs Manager for Metro, explained:
Testimony, House Committee on Energy and the Environment, SB 1011, May 21, 2007, Ex C (statement of Randy Tucker).
To determine how to address those deficiencies in the current system, Metro-at some point before the 2007 legislative session — obtained partial funding from the Department of Land Conservation and Development (DLCD) and, in conjunction with DLCD, the Oregon Department of Agriculture (ODA), and Clackamas, Multnomah, and Washington counties, conducted what has become known as the "Ag-Urban Study." Id. That study examined land outside Metro's UGB and focused on three overarching questions:
Id. (boldface in original). The answers to each of those questions were ultimately embodied in three documents — summaries of which Tucker provided to the House and Senate committees that considered SB 1011: (1) a January 2007 ODA report to Metro entitled "Identification and Assessment of the Long-Term Commercial Viability of Metro Region Agricultural Lands" (the ODA Report); (2) Metro's February 2007 "Natural Landscape Features Inventory" (the Natural Landscape Features Inventory); and (3) the "Great Communities Final Report" (the Great Communities Report). Because those three documents pertain to, and provide context for, certain of the parties' contentions on review, we summarize their essential content at this point.
As a result of that analysis, ODA identified and mapped 20 agricultural subregions separated into three types of agricultural land categories — viz., "Foundation," "Important," and "Conflicted" — which the report defined as follows:
(Boldface in original.)
Metro's Natural Landscape Features Inventory examined an area that "extended from north of Salem to the North Fork of the Lewis River on a north-south axis and from the Cascade foothills to the Coast Range on the east-west axis." The inventory identified 26 "features of the landscape that influence the sense of place for the greater region and ultimately will help define the future urban form of the greater region." Examples of natural landscape features identified in the inventory include (1) the "Cascade Foothills," which, among other things, provide "a scenic panorama for Portland and the eastside of the region" and "drinking water for the majority of the population of the region" and (2) "Forest Park Connections" — that is, the area that "provides protection to key watersheds like Balch, Miller, Ennis and Agency Creeks and secures the integrity of the `big game' corridor that links the park with habitat in the northern Coast Range."
Finally, the Great Communities Report identified and described "eight essential characteristics" that "are the most important in making urbanization decisions" — viz., (1) community design, (2) complete communities, (3) ecological systems, (4) optimization of public investments, (5) governance, (6) finance, (7) economy, and (8) education and workforce development. As an example, the report explained that "community design" recognizes that
SB 1011 emerged from the Ag-Urban Study process and, consequently, incorporated some of the principles expressed in the ODA Report, the Natural Landscape Features Inventory, and the Great Communities Report. Audio Recording, House Committee on Energy and the Environment, SB 1011, May 21, 2007, at 24:28-25:31 (statement of Randy Tucker), https://olis.leg.state.or.us (accessed Feb 6, 2014). Of particular significance, the urban reserve factors specified in SB 1011 derived from the Great Communities Report and the rural reserve factors derived from the ODA Report.
During the course of the legislative hearings, a coalition that represented diverse interests continued to meet to refine SB 1011 and propose amendments to its provisions.
Four salient aspects of the existing (post-SB 1011) statutory framework are most pertinent to the designation of urban and rural reserves in this case.
ORS 195.145(1)(b) authorizes a new, alternative process for the designation of urban
Although SB 1011 continued to provide for designation of urban reserves under that existing process, ORS 195.145(1)(a), it also established a new, alternative process, ORS 195.145(1)(b), under which the reserves in this case were designated. As Representative Jackie Dingfelder explained, this "new process for designating urban reserves," which "are the first in line when land needs to be brought into the UGB," is
Audio Recording, House Floor Debate, SB 1011, June 11, 2007, at 1:48:58-1:49:40 (statement of bill's carrier Rep Dingfelder), https://olis.leg.state.or.us (accessed Feb 6, 2014).
Central to that alternative designation process is a nonexclusive set of six urban reserve factors — derived from the Great Communities Report — that Metro and a county must "consider" in designating urban reserves under ORS 195.145(1)(b). Specifically, ORS 195.145(5) provides:
In addition, the amount of land that Metro and a county can designate as urban reserves under ORS 195.145(1)(b) is limited. ORS 195.145(4) provides:
ORS 195.141 authorizes the designation of anew type of reserves — viz., rural reserves. "These are the lands that are critical to the functioning and long-term viability of the agricultural industry irrespective of soil quality, and rural reserves can also be established to protect important natural areas." Audio Recording, House Floor Debate, SB 1011, June 11, 2007, at 1:49:47-1:50:05 (statement of Rep Dingfelder), https://olis.leg.state.or.us (accessed Feb 6, 2014). Before the enactment of SB 1011, there had been "no legal authorization to protect th[o]se lands over the long term." Testimony, House Committee on Energy and the Environment, SB 1011, May 21, 2007, Ex C (statement of Randy Tucker).
Unlike with urban reserves, the legislature did not impose a limitation on the amount of land that may be designated as rural reserves. Instead, the legislature imposed a temporal restriction on the development of such reserves. Specifically, land that is designated as rural reserve (1) must be outside of a UGB, (2) "[m]ay not be designated as an urban reserve during the urban reserve planning period," and (3) may not be included in a UGB during the urban reserve planning period. ORS 195.141(2). In practical terms, this means that land designated as rural reserve is essentially not subject to urban development for up to a total period of 40 to 50 years — that is, the 20-year UGB planning period plus the 20- to 30 — year urban reserves planning period.
As with the designation of urban reserves, the process for designating rural reserves requires the "consideration" of a nonexclusive list of factors, which were derived from the ODA Report. Specifically, ORS 195.141(3) provides:
(Emphasis added.)
The designation of urban and rural reserves requires coordination and agreement between Metro and the counties. To that end, ORS 195.143(1) provides that Metro and a county "must consider simultaneously the designation and establishment" of rural reserves pursuant to ORS 195.141 and urban reserves pursuant to ORS 195.145(1)(b). As Tucker explained, the direction "to consider the establishment of rural and urban reserves simultaneously" ensures "coordination of the planning of both types of reserves and
Ultimately, the designation of reserves occurs through agreements between Metro and a county.
Of particular significance, the coalition in support of SB 1011 agreed that urban reserves may not be designated in a county unless rural reserves are designated in that county as well.
The legislature authorized LCDC to engage in rulemaking concerning the designation of urban and rural reserves. ORS 195.145(6) ("[LCDC] shall adopt by goal or by rule a process and criteria for designating urban reserves pursuant to subsection (1)(b) of this section."); ORS 195.141(4) ("[LCDC] shall, after consultation with [ODA], adopt by goal or by rule a process and criteria for designating rural reserves pursuant to this section.").
In response to that rulemaking authorization, LCDC promulgated the rules in OAR chapter 660, division 27 (the division 27 rules), which governed the designation of urban and rural reserves in this case.
(Emphasis and boldface added.)
To achieve the "best achieves" objective, "[w]hen evaluating and designating land for
Consistently with the quantitative "cap" on urban reserve designations prescribed by ORS 195.145(4), LCDC also promulgated OAR 660-027-0040(2)-which is known as the "amount of land standard." Specifically, that rule provides:
With respect to the designation of land for rural reserves, OAR 660-027-0040(9) provides that, "[w]hen evaluating and designating land" for such reserves, Metro and a county "shall apply the factors of OAR 660-027-0060." In promulgating OAR 660-027-0060, LCDC incorporated the rural reserve factors from ORS 195.141(3), see 261 Or.App. at 274-75, 323 P.3d at 380, that pertained to protection of the agricultural industry but also extended their application to the forest industry. Specifically, OAR 660-027-0060(2) provides:
Further, during rulemaking, LCDC established factors for the designation of rural reserves to protect important natural landscape features. Specifically, OAR 660-027-0060(3) provides:
In addition to amplifying the substantive standards for designating urban and rural reserves, the division 27 rules — consistently with the statutory directive, see ORS 195.143 — also require intergovernmental coordination and cooperation. For example, OAR 660-027-0040(10) provides that "Metro and any county that enters into an agreement with Metro under this division shall apply the factors in OAR 660-027-0050 [(concerning urban reserves)] and OAR 660-027-0060 [(concerning rural reserves)] concurrently and in coordination with one another." In addition, Metro and the counties with which Metro has entered into an agreement
OAR 660-027-0040(10).
Finally, there are two substantial exceptions to the overarching mandates of OAR 660-027-0040(10). The application (if any) of each is vehemently disputed by the present parties.
The first exception is OAR 660-027-0060(4) — the so-called "safe harbor provision." The "safe harbor provision" dispenses with the requirements that a county apply the factors in OAR 660-027-0060(2) in designating certain land as rural reserves and the requirement that Metro and the county explain why that land was selected as rural reserves. Specifically, OAR 660-027-0060(4) provides:
The second exception is OAR 660-027-0040(11). That provision imposes additional requirements on Metro to the extent that it seeks to designate Foundation Agricultural Land as urban reserve. Specifically, OAR 660-027-0040(11) provides:
In 2010, Metro and Clackamas, Multnomah, and Washington counties made the initial designation of urban and rural reserves that are at issue in this case. We take the undisputed procedural facts concerning the designation from LCDC's order.
The director of DLCD referred Metro and the counties' initial submittal — that is, Metro Ordinance No. 10-1238A — to LCDC for review in the manner provided for periodic review. See generally ORS 197.626(1)(c), (f) (providing for LCDC review of urban and rural reserves "in the manner provided for review of a work task under ORS 197.633"); ORS 197.628-197.650 (governing periodic review process); OAR chapter 660, division 25 (the division 25 rules) (rules implementing periodic review process).
In October 2010, LCDC held a hearing concerning the initial submittal. At that hearing, LCDC (1) "approve[d] the urban and rural reserve designations as submitted in Clackamas and Multnomah counties" and "approve[d] the urban reserves in Washington County, with the exception of two areas"; (2) reversed the urban reserve designation of one of those excepted areas and remanded the designation of the other for further findings; and (3) "remand[ed] the rural reserve designations in Washington County for further consideration in light of changes made on remand" to those two areas.
In response to LCDC's ruling at the conclusion of the hearing, Metro and Washington County adopted amendments to their planning documents to revise the reserve designations. "The Metro and Washington County re-designations," which were submitted on May 13, 2011, "adjusted the urban and rural reserve designations in Washington County" in several ways.
Ultimately, LCDC issued an acknowledgment order "approving the 2010 initial submittal [(Metro Ordinance No. 10-1238A)], as revised through the 2011 redesignation submittal [(Metro Ordinance No. 11-1255)], which together constitute the Metro Urban and Rural Reserves Submittal." This judicial review followed. ORS 197.626(2) (providing that a final order of LCDC concerning the designation of urban and rural reserves under ORS 195.137 to 195.145 "may be appealed to the Court of Appeals in the manner described in ORS 197.650 and 197.651"); ORS 197.650(2) ("Jurisdiction for judicial review of a final order of [LCDC] issued pursuant to * * * ORS 197.626 * * * is conferred upon the Court of Appeals.").
On review, 22 petitioners challenge LCDC's order.
As framed by the parties' contentions, we review LCDC's order to determine whether it is "[u]nlawful in substance." ORS 197.651(10)(a).
Further, in analyzing petitioners' contentions, we note that, consistently with our typical practice, we will generally identify the proponent of a particular contention. However, given the large number of parties, the fundamental nature of many of the contentions on review, and the fact that many parties adopted arguments articulated by others, we will, in some instances, occasionally address a contention without identifying its particular proponent or proponents.
With those "ground rules" established, we turn to the merits of the parties' contentions on review. We begin by addressing, and
At the outset, we "clear the decks" by rejecting, without extended discussion, two preliminary contentions either of which, if correct, would have obviated the need to consider the parties' remaining contentions. First, we reject without discussion petitioner Springville's first assignment of error in which it contends that the division 27 rules are invalid in their entirety.
Second, in his third assignment of error, petitioner Maletis contends that Metro lacked authority to designate reserves outside of its service district boundary. That is so, Maletis asserts, because ORS 195.137 to 195.145 do not "explicitly extend the geographic scope of Metro's governing authority outside of [that boundary]."
However, as LCDC noted, a provision of Metro's charter provides, "`The Metro Area of governance includes all territory within the boundaries of the Metropolitan Service District * * * and any territory * * * subjected to Metro governance under state law.'" (First omission and emphasis in LCDC's order.) Here, the text of the statutory scheme, as a whole, clearly demonstrates that Metro is authorized to designate reserves outside its district boundary. Thus, the statutes subject such lands to Metro's governance at least for the purpose of designating them as reserves. Further, legislative history supports that understanding of the statutory scheme. The following exchange occurred during the floor debate in the House:
Audio Recording, House Floor Debate, SB 1011, June 11, 2007, at 1:51:42 — 1:52:05, https://olis.leg.state.or.us (accessed Feb 6, 2014). Although that question and response referred to rural reserves, it is clear from the exchange that the SB 1011 was intended to authorize Metro and the counties to do exactly what they did here.
Having rejected those preliminary contentions, we proceed to petitioners' more focused challenges pertaining to whether LCDC's order is unlawful in substance because, in reviewing Metro and the counties' submittal, LCDC misunderstood and misapplied the legal principles governing the designation of urban and rural reserves and circumscribing its review. We begin by rejecting four contentions pertaining to the first two pervasive challenges identified above, 261 Or.App. at 286-87, 323 P.3d at 386-87 — viz., compliance with the "amount of land standard" and particular statewide planning goals.
We begin with the contentions pertaining to whether too much land is designated as
In his fourth assignment of error, Maletis contends that LCDC erred in concluding that Goal 9, which pertains to economic development, was not applicable to the designation of urban and rural reserves and, alternatively, in concluding that, to the extent that the goal was implicated, there was substantial evidence in the record to demonstrate compliance. That goal is designed "[t]o provide adequate opportunities throughout the state for a variety of economic activities vital to the health, welfare, and prosperity of Oregon's citizens." Among Goal 9's implementing rules is OAR 660-009-0010(1), which expressly provides that the rules "appl[y] to comprehensive plans for areas within urban growth boundaries" and "do[ ] not require or restrict planning for industrial and other employment uses outside urban growth boundaries."
Before LCDC, Maletis objected that "[t]here is no substantial evidence or related findings to meaningfully assure that the Decision, as it will be implemented by the Counties is in compliance with Goal 9." LCDC denied that objection on two alternative grounds.
First, LCDC concluded that Goal 9 was inapplicable to the designation of urban and rural reserves. Specifically, relying on the goal's implementing rules, LCDC explained that, "[g]enerally, Goal 9 does not establish planning requirements for local governments outside of [UGBs]" and that "[a]ll urban and rural reserves lie outside the Metro regional UGB." LCDC also noted that Maletis had not "cite[d] any authority that requires independent findings by Metro to demonstrate compliance with Goal 9 on a regional basis."
Second, and alternatively, LCDC determined that, to the extent that Goal 9 is implicated, the submittal was in compliance with the goal. Specifically, LCDC reasoned:
(Footnote and record citations omitted.)
On review, Maletis challenges each of LCDC's alternative, and independently sufficient, grounds for rejecting his objection. In particular, relying on the requirement in the goal "[t]o provide adequate opportunities throughout the state for a variety of economic activities" as well as OAR 660-027-0080(4) and ORS 197.175(2), Maletis contends that "LCDC erred in concluding that Goal 9 was not applicable" to the designation of urban and rural reserves. Further, Maletis contends that "LCDC erred in concluding that there was substantial evidence in the whole record to support the conclusion that the
As amplified below, Maletis's first contention is incorrect. Two salient observations suffice to demonstrate why that is so.
First, the text of Goal 9 and its implementing regulations demonstrate that the goal applies solely to comprehensive plans governing land within urban growth boundaries. According to its terms, the purpose of the goal is "to provide adequate opportunities throughout the state for a variety of economic activities." That purpose is achieved by the goal's stated and limited application to "comprehensive plans for urban areas."
Further, OAR 660-009-0015 requires an "economic opportunities analysis" in comprehensive plans, but only for the relevant "planning area," which is defined to mean "the area within an existing or proposed urban growth boundary." OAR 660-009-0005(7).
That understanding of Goal 9 is also consistent with ORS 197.712, the statute authorizing LCDC to adopt and implement goals and rules to facilitate economic development. As we explained in Port of St. Helens v. LCDC, 165 Or.App. 487, 494-95, 996 P.2d 1014, rev. den., 330 Or. 363, 6 P.3d 1104 (2000), Goal 9 carries out the requirements of ORS 197.712(2)(a) to (f), which require that comprehensive plans address economic development in a variety of ways (e.g., analyze community economic patterns and potentials as they relate to state and national trends, provide for an adequate supply of land for industrial and commercial uses). In that case, the petitioners maintained that the statute "applies both inside and outside UGBs[.]" Id. at 494, 996 P.2d 1014 (internal quotation marks omitted). We rejected that contention, explaining that, by its express terms, Goal 9 applies to "[c]omprehensive plans for urban areas" and that the "Goal 9 provision is well within LCDC's broad delegative authority to refine the statutory policy." Id. at 495, 996 P.2d 1014.
In sum, even though Goal 9 pertains to the provision of "adequate opportunities throughout the state for a variety of economic activities," the specific requirements of the goal and its implementing rules apply only with respect to comprehensive plans that govern land inside urban growth boundaries. Thus, because land designated as either urban or rural reserves is outside of the UGB,
Second, the authorities on which Maletis relies to support his contention that Goal 9 applies in this context — viz., OAR 660-027-0080(4) and ORS 197.175(2) — are simply inapposite. OAR 660-027-0080(4) requires that LCDC review the submittal for "[c]ompliance with the applicable statewide planning goals" (emphasis added), and ORS 197.175(2) requires counties and cities to prepare comprehensive plans that are consistent with the goals. Neither the statute nor the rule makes Goal 9 applicable in this context.
For those reasons, LCDC did not err in concluding that Goal 9 does not apply to the designation. That conclusion obviates the need to consider Maletis's remaining contentions concerning Goal 9. Accordingly, we reject Maletis's fourth assignment of error.
In its third assignment of error, petitioner MLG challenges Metro's use of the Urban Growth Report 2009-2030 to project growth and land needs. Specifically, MLG contends that, because Metro and the counties "projected land needs on a new report that was not incorporated within Metro's acknowledged functional plan and the acknowledged comprehensive plans of the Counties," LCDC erred in concluding that the submittal did not violate Goals 2 and 14. We have considered and reject that assignment of error without discussion.
In her first assignment of error, petitioner Graser-Lindsey contends that LCDC erred in concluding that Goals 2, 3, 4, 5, 6, 8, 9, 10, 12, and 14 do not require Metro and the counties to assess "carrying capacity" — that is, the "[l]evel of use which can be accommodated and continued without irreversible impairment of natural resources productivity, the ecosystem and the quality of air, land, and water resources," Statewide Planning Goals & Guidelines, Definitions — when designating urban and rural reserves. In response to Graser-Lindsey's objection pertaining to the assessment of "carrying capacity," LCDC essentially determined that, in light of the nature and effect of the reserves decision, "carrying capacity" simply cannot be meaningfully assessed and, for that reason, the assessment of carrying capacity does not apply to the designation decision. Graser-Lindsey has failed to demonstrate why LCDC could not properly reach that conclusion.
Accordingly, we turn to petitioners' remaining contentions concerning whether LCDC's order is unlawful in substance. Although variously phrased and presented, those contentions all pertain to the final three transcendent matters described above, 261 Or.App. at 286-87, 323 P.3d at 386-87:
We address the contentions related to each of those matters, focusing first on the applicable legal principles and then on whether LCDC properly applied those principles in its review of Metro and the counties' submittal.
The bulk of those contentions are predicated, expressly or implicitly, on challenges to the correctness of one or more of nine legal premises undergirding LCDC's review of two interrelated matters — Metro and the counties' consideration and application of the reserve factors and their application of the "best achieves standard." Those contentions are essentially derivative variations on common themes. Accordingly, we begin by addressing the general "matter of law" correctness of LCDC's nine fundamental themes.
Upon considered review, we understand LCDC's reasoning concerning the proper "consideration" and "application" of the reserve "factors" to be predicated on the following five legal premises:
First, the urban and rural reserve factors are to be evaluated in the manner of the Goal 14 boundary location factors. Consequently:
Second, Metro and the counties are to apply the reserve factors to "areas" — and not to individual properties or to the county or region as a whole.
Third, generally, Metro and the counties are to apply the factors to "alternative areas" within a county, as opposed to the entire region, to determine whether to designate them as urban or rural reserves. However, when Metro designates Foundation Agricultural Land as urban reserve, it must explain why it selected that land rather than other land within the regional study area that is not Foundation Agricultural Land.
Fourth, generally, Metro and the counties need not apply both the urban reserve factors and the rural reserve factors to each area in determining whether to designate it as urban or rural reserve. However, when Metro designates Foundation Agricultural Land as urban reserve, both sets of factors must be considered and applied.
Fifth, generally, if Metro and the counties properly consider and apply the factors, the decision whether to designate land as urban reserve or rural reserve or to leave the land undesignated is left to the local government. However, when Metro designates Foundation Agricultural Land as urban reserve, it must, after consideration of both sets of factors, explain why that land is more suitable as urban reserve than other land within the regional study area that is not Foundation Agricultural Land.
As noted, many of petitioners' contentions are predicated on the correctness of those five premises. Accordingly, we address the general "matter of law" correctness of LCDC's premises in some detail.
In its order, LCDC explained that "OAR 660-027-0040(10) and (11), together with OAR 660-027-0050 (urban) and 660-027-0060 (rural), require [it] to review the submittal to determine whether Metro and the counties considered and applied the factors for urban and rural reserves." (Emphasis added.) In determining what it means to "consider and apply" the reserve factors, LCDC referred to a report authored by a DLCD analyst, Bob Rindy, that was submitted to LCDC during the rulemaking proceedings concerning the adoption of the division 27 rules.
(Emphasis added.)
LCDC essentially ratified the workgroup's understanding of the meaning of "consideration of factors." Specifically, LCDC explained that "consideration" and application of the "factors"
(Footnote omitted; first brackets and omission in LCDC's order; emphasis added.) Thus, consistently with the rulemaking history — which itself was predicated on statutory context and function — LCDC concluded that "consideration" of the urban and rural reserve "factors" requires that Metro and the counties evaluate the factors in the same manner that boundary location factors of Goal 14 are evaluated. For the reasons that follow, LCDC's construction is correct.
Although incorporated by LCDC into its division 27 rules, the concept of "consideration" of "factors" derives from the governing statutes. To determine the meaning of those terms, we adhere to the methodology described in PGE v. Bureau of Labor and Industries, 317 Or. 606, 859 P.2d 1143 (1993), as amplified in State v. Gaines, 346 Or. 160, 206 P.3d 1042 (2009). In general, that means that "we examine the text and context of the statute and any legislative history that appears to be helpful * * *." Bell v. Tri-County Metropolitan Transp. Dist. of Or., 353 Or. 535, 540, 301 P.3d 901 (2013).
As previously described, 261 Or.App. at 271-72, 323 P.3d at 378-79, at the time SB 1011 was enacted, a process existed for the designation of urban reserves under the division 21 rules. In general terms, that preexisting process required the examination of
Through its enactment of SB 1011, the legislature created a new, alternative process for the designation of urban reserves. See ORS 195.145(1)(b) (authorizing designation of urban reserves); ORS 195.145(5) (providing factors for consideration when designating urban reserves under ORS 195.145(1)(b)). As Representative Dingfelder explained, this "new process for designating urban reserves" is "based on a set of factors that consider how well land can be woven into the urban fabric of the region rather than the current approach of selecting urban reserves based on factors that are related to their quality as farm land." Audio Recording, House Floor Debate, SB 1011, June 11, 2007, at 1:48:58-1:49:30 (statement of Rep Dingfelder), https://olis.leg.state.or.us (accessed Feb 6, 2014).
Unlike the division 21 process, the new statutory process for designating urban reserves does not expressly incorporate the Goal 14 factors or a priorities hierarchy. Although there is some conceptual similarity between the Goal 14 boundary location factors and the urban reserve factors in ORS 195.145(5), those two sets of factors are not worded similarly. Moreover, as noted, the legislative history of SB 1011 clearly demonstrates that the urban reserve factors in ORS 195.145(5) were not derived from Goal 14 — but, instead, originated from the Ag-Urban Study process generally and the Great Communities Report specifically. See 261 Or. App. at 269-70, 272 n. 5, 323 P.3d at 377-78, 378 n. 5. In sum, the urban reserve factors in ORS 195.145(5) and the Goal 14 boundary location factors are not congruent. Nevertheless, for reasons that we will explain, LCDC did not err in concluding that the legislature intended that the urban and rural reserve factors should be considered "in the manner of" the Goal 14 boundary location factors.
Although the legislature required that Metro and a county base the designation of urban reserves and rural reserves on the "consideration" of separate sets of "factors,"
Nevertheless, in the order on review, LCDC correctly reasoned that, because "consideration of factors" has a particular meaning in related land use contexts, the legislature intended for it to have the same meaning here. Specifically, as explained above, 261 Or.App. at 295-97, 323 P.3d at 391-93, LCDC ratified the workgroup's view that, because the term "consideration of factors" had been previously used by LCDC and the courts in the related Goal 14 context and there had been "precedent set by both LCDC and the courts regarding the interpretation
Consistently with that legislative intent, LCDC referred to our precedents addressing the application of the Goal 14 boundary location factors to determine the legal principles circumscribing the "consideration of factors" in this context. To that end, LCDC identified three pertinent principles from our decisions in Ryland Homes and Citizens Against Irresponsible Growth.
First, the factors are to be "applied" by Metro and the counties in evaluating and selecting land to designate as urban or rural reserve. In other words, in making its decisions, Metro and the counties must actually make use of — or employ — the factors. See generally Ryland Homes, 174 Or.App. at 408, 26 P.3d 151 (concerning, in part, whether Metro properly applied the boundary location factors of Goal 14); see also Webster's at 105 (defining "apply" to mean, among other things, "to make use of as suitable, fitting, or relevant the rule to each situation>" and "to put to use esp. for some practical purpose < knowledge>").
Second, the urban and rural reserve "factors" are not independent approval criteria such that each factor must be satisfied before a designation may be made. See Ryland Homes, 174 Or.App. at 409, 26 P.3d 151 (noting that the Goal 14 "locational factors are not independent approval criteria"); Citizens Against Irresponsible Growth, 179 Or. App. at 17, 38 P.3d 956 (reasoning that "[n]o single [Goal 14] factor is of such importance as to be determinative in a UGB amendment proceeding, nor are the individual factors necessarily thresholds that must be met"; explaining that "Metro properly did not apply the factors individually as make-or-break mandatory approval criteria").
Third, "consideration" of the factors requires that the local government (a) apply and evaluate each factor, (b) weigh and balance the factors as a whole, and (c) meaningfully explain why a designation as urban or rural reserves is appropriate. As we succinctly explained in Ryland Homes, "consideration" means that a local government "has an obligation to consider each of the [applicable] factors and to articulate its thinking regarding the factor and the role that each factor played in balancing all of the factors." 174 Or.App. at 416, 26 P.3d 151.
In sum, the new, alternative process of designating urban and rural reserves at issue here was not intended to be "congruent" with the process of designating urban reserves under the division 21 rules or the process of amending a UGB under ORS 197.298 and Goal 14. Had that been the intention, the new, alternative process developed in SB 1011 — and embodied in the statutes at issue in this case — would not have been functionally new and different. Nevertheless, relying on the statute's text and context, LCDC correctly reasoned that, when designating urban reserves under ORS 195.145(1)(b) and rural reserves under ORS 195.141, the statutory term "consideration of factors" means that the reserve factors are to be considered in the manner of the boundary location factors of Goal 14. In other words, Metro or a county must (a) apply and evaluate each factor, (b) weigh and balance the factors — which are not independent approval criteria — as a whole, and (c) meaningfully explain why a designation as urban or rural reserves is appropriate.
Having determined the meaning of "consideration" of the urban and rural reserve "factors," LCDC turned its attention to a subsidiary issue — that is, the appropriate unit of land to which the factors are to be applied — and concluded "that [the] division 27 [rules] require[ ] Metro and the counties to apply the factors to areas, not to individual properties, and not to the entire region." (Emphasis added.) Specifically, LCDC reasoned:
Unlike the meaning of "consideration of factors," which derived from the governing statutes, the correctness of the remaining legal premises underlying LCDC's reasoning are predicated on LCDC's interpretation of its division 27 rules that were promulgated to implement the statutes governing the designation of urban and rural reserves in this case. As we have previously explained, the governing statutes created a new process for the designation of suitable land as urban and rural reserves. To that end, the governing statutes require that the designation of urban reserves under ORS 195.145(1)(b) be based on the "consideration of factors" in ORS 195.145(5) and that the designation of rural reserves under ORS 195.141 be based on the "consideration of factors" in ORS 195.141(3). The statutes further require intergovernmental coordination and cooperation. Beyond that, however, the legislature authorized LCDC to "adopt by goal or by rule a process and criteria for designating" the reserves at issue in this case. ORS 195.141(4); ORS 195.145(6). Thus, the particulars of that process are embodied in LCDC's division 27 rules.
We will defer to LCDC's "plausible interpretation of its own rule[s], including an interpretation made in the course of applying the rule, if that interpretation is not inconsistent with the wording of the rule, its context, or any other source of law." DeLeon, Inc. v. DHS, 220 Or.App. 542, 548, 188 P.3d 354 (2008) (citing Don't Waste Oregon Com. v. Energy Facility Siting, 320 Or. 132, 881 P.2d 119 (1994)); see also 1000 Friends of Oregon v. LCDC (Lane Co.), 305 Or. 384, 390, 752 P.2d 271 (1988) (explaining that the legislature's entrustment of an agency "both with setting standards and with applying them can imply that the agency's view of its standards (assuming that they are within their authorizing law and consistently applied) is to be given some appropriate respect by the courts"). For reasons that we will explain, LCDC's interpretation of its rules to require that Metro and the counties apply the factors to "areas" — sometimes referred to as "study
In concluding that its rules require that the factors be applied to "areas," LCDC pointed to the requirement in OAR 660-027-0040(10) that Metro and the counties "shall adopt a single, joint set of findings of fact, statements of reasons and conclusions explaining," inter alia, "why areas were chosen as urban or rural reserves." (Emphasis added.) According to LCDC, the use of the term "areas" in that rule evinces its intent that Metro and the counties apply the reserve factors to "areas" and then explain why particular "areas" were chosen as urban or rural reserves. Further, LCDC noted that factors are applied to "areas" — as opposed to other units of land — in related contexts. See Parklane, 165 Or.App. at 9-10, 994 P.2d 1205 (describing the use of "areas" to determine the suitability of land for designation as urban reserves under the division 21 rules); see also City of West Linn v. LCDC, 201 Or.App. 419, 425, 119 P.3d 285 (2005) (West Linn) (describing the use of "areas" to determine the suitability of land for inclusion within an amended UGB); Residents of Rosemont v. Metro, 173 Or.App. 321, 324-25, 21 P.3d 1108 (2001) (same).
LCDC's interpretation of OAR 660-027-0040(10) is not inconsistent with the pertinent statutes or other division 27 rules. Nothing in the statutes prohibits Metro and the counties from employing "areas" as the unit of land to which the factors are to be applied or expressly requires the application of the factors to specific properties or a county or the region as a whole.
Moreover, LCDC's interpretation of OAR 660-027-0040(10) is not inconsistent with the pertinent statutes or other division 27 rules that define urban and rural reserves as "land" or "lands" and require that Metro and the counties base the designation of reserves on "consideration" of factors as to the "land" proposed for designation.
The distinction between the application of factors to "areas" and the designation of "land" is significant because, as to the latter, the governing statutes require that Metro and the counties base their designations on consideration of the reserve factors. As noted, consistently with the division 27 rules, Metro and the counties identified "areas" that they used to study the land. There is no reviewable challenge in this case concerning
In other words, when a landowner contends that his or her property was improperly designated as urban or rural reserves solely because of its inclusion within an "area," our task is to determine whether LCDC properly determined that the local government adequately considered the factors in making the designation that included that land. As we have explained, 261 Or. App. at 296-301, 303-05, 323 P.3d at 392-94, 396-97, legally sufficient "consideration" requires that the local government meaningfully explain why a designation as urban or rural reserves is appropriate by reference to the totality of the land encompassed within that designation. In that regard, to the extent that a property owner challenges the inclusion of his or her property within a designated area, the local government is obligated to have explained why its consideration of the factors yields, as to the totality of the designated land, a result that includes that property.
In sum, LCDC's interpretation of its rules to require Metro and the counties to apply the factors to "areas" as opposed to specific properties or a county or the region as a whole and to frame their justification for the designation of land in terms of those "areas" is plausible and is not inconsistent with the division 27 rules in context or with any other source of law. Accordingly, we defer to it.
In explaining that the factors are to be applied to "areas," 261 Or.App. at 301-06, 323 P.3d at 394-97, LCDC also concluded that, generally, Metro and the counties must apply the factors "to alternative areas within a county to decide which ones to designate as urban or rural reserves." (Emphasis added.) In reaching that conclusion, LCDC relied on its rules that require Metro and a county to jointly designate reserves.
(Emphasis added.) LCDC interpreted the italicized provision of that rule to mean that,
(Emphasis added.)
In sum, LCDC concluded that, generally, Metro and the counties are to apply the factors to "alternative areas" within a county but that, when Metro designates Foundation Agricultural Land as urban reserve, it must explain why it selected that land rather than other land within the regional study area that is not Foundation Agricultural Land. That conclusion is essentially predicated on LCDC's interpretation of its division 27 rules. Because that interpretation is "plausible" and "not inconsistent with the wording of the rule[s], [their] context, or any other source of law," we defer to it. DeLeon, Inc., 220 Or.App. at 548, 188 P.3d 354 (citing Don't Waste Oregon Com., 320 Or. 132, 881 P.2d 119).
Without belaboring the point, LCDC's interpretation of its implementing rules is not inconsistent with the governing statutes, which do not prescribe any particular alternatives analysis. Moreover, LCDC's interpretation of OAR 660-027-0040(11) to impose more stringent requirements when evaluating and designating Foundation Agricultural Land as urban reserve is consistent with one of the underlying purposes of SB 1011 — viz., making it easier to urbanize land that is not necessarily critical to the long-term viability of the agricultural industry while at the same time providing long-term protection to lands that are critical.
LCDC's interpretation of OAR 660-027-0040(11) also played a role in its determination of whether OAR 660-027-0040(10) requires that both sets of factors be applied to every area. As pertinent to that issue, OAR 660-027-0040(10) provides that "Metro and any county that enters into an agreement with Metro under this division shall apply the factors in OAR 660-027-0050 [(i.e., the urban reserve factors)] and 660-027-0060 [(i.e., the rural reserve factors)] concurrently and in coordination with one another." (Emphasis added.)
Relying in part on the juxtaposition of OAR 660-027-0040(10) with OAR 660-027-0040(11) — and contrasting the content of those subsections — LCDC concluded that the "concurrently and in coordination" requirement in OAR 660-027-0040(10) "does not require both urban and rural reserve factors
In other words, we understand LCDC to have concluded that the "concurrently and in coordination" requirement in OAR 660-027-0040(10) refers to the overall process of designating reserves and requires that Metro and the counties concurrently consider the designation of both urban and rural reserves in coordination with one another. Stated differently, except when Foundation Agricultural Land is involved, the "concurrently and in coordination" requirement does not mean that both urban and rural reserve factors must be applied to every area.
LCDC's interpretation of the "concurrently and in coordination" requirement of OAR 660-027-0040(10) appears to be its reflection of the statutory mandate in ORS 195.143(1), which requires that Metro and a county "must consider simultaneously the designation and establishment" of rural reserves pursuant to ORS 195.141 and urban reserves pursuant to ORS 195.145(1)(b).
Finally, LCDC concluded that, if Metro and the counties properly consider and apply the factors, the decision whether to designate particular land as urban reserves or rural reserves or to leave it undesignated is left to the local government. In particular, LCDC concluded that, even though "many areas could have been[ ] designated either as an urban or rural reserve," the division 27 rules and the governing statutes "grant substantial discretion to Metro and the counties in deciding which lands to designate as urban and rural reserves" and that, except when Metro designates Foundation Agricultural Land as urban reserve, if the factors are properly considered and applied, the statutes and rules do not require a demonstration "that an area is better suited as an urban reserve than as a rural reserve before [Metro] designates any land as urban reserve." With regard to Metro's designation of Foundation Agricultural Land as urban reserve, LCDC interpreted OAR 660-027-0040(11) to require that "the joint findings * * * explain" why the Foundation Agricultural Land "is more suitable as an urban reserve than other lands within Metro's study area that are not Foundation Agricultural Lands." (Emphasis added.)
LCDC's understanding is again unexceptionable. The governing statutes provide that Metro and a county may enter into intergovernmental agreements to designate
In sum, we conclude that the five fundamental legal premises undergirding and informing LCDC's review of the consideration and application of the reserve factors are individually and collectively valid. We turn, then, to the four premises informing LCDC's review of the meaning and application of the "best achieves standard."
As noted, 261 Or.App. at 276-77, 323 P.3d at 381-82, the "best achieves standard" was established by LCDC in OAR 660-027-0005(2). Specifically, that rule provides, in pertinent part, that
(Emphasis and boldface added.)
The construction and application of that rule was central to LCDC's review of the submittal. As amplified below, we understand LCDC's reasoning concerning the meaning and employment of the best achieves standard in OAR 660-027-0005(2) to be predicated on the following four legal premises:
First, the best achieves standard is a qualitative standard rather than a quantitative one.
Second, the standard applies to Metro and the counties' joint designation "in its entirety" and not to the designation of individual properties or areas.
Third, the best achieves standard allows for a range of permissible designations.
Fourth, Metro and the counties must explain how the designation satisfies the best achieves standard through their findings concerning the application of the urban and rural reserve factors.
Again, because many of petitioners' contentions on review are predicated, expressly or implicitly, on challenges to the correctness of one or more of those four premises, we begin by addressing the correctness, as a matter of law, of those four premises — all of which are predicated on LCDC's interpretation of its division 27 rules, including OAR 660-027-0005(2). Accordingly, we will defer to LCDC's interpretation of its rules if it is "plausible" and "is not inconsistent with the wording of the rule[s], [their] context, or any other source of law." DeLeon, Inc., 220 Or.App. at 548, 188 P.3d 354.
In the order on review, LCDC reasoned that OAR 660-027-0005(2) requires "a qualitative balance in terms of long-term trade-offs between the further geographic expansion of the Portland metro urban area and the conservation of farm, forest and natural areas that surround the metro area." In other words, in LCDC's understanding, "[t]his is not a balance in terms of the quantitative amount of urban and rural reserves, but a balance between encouraging further urban expansion versus land conservation."
As support for that interpretation, LCDC referred to a transcript of a January 2008 hearing concerning the adoption of the division 27 rules. During that hearing, Commissioner Worrix, who chaired the workgroup that considered the adoption of the division 27 rules, explained that, "even though there was an attempt to keep the process fluid
To that end, the best achieves standard expressly requires the balancing of three competing objectives that underscore the designation of urban and rural reserves under the division 27 rules — that is, "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). Those objectives are qualitative in nature. Moreover, nothing in the text of OAR 660-027-0005(2) — or the division 27 rules generally — suggests that there must be a quantitative balance in the amount of land designated as urban reserves and the amount of land designated as rural reserves.
Thus, LCDC's interpretation of the best achieves standard to require a qualitative balance between urban expansion and conservation is plausible and is not inconsistent with the text of OAR 660-027-0005(2), its context, or any other source of law. Accordingly, we defer to it.
LCDC also construed the best achieves standard as applying to the designation "in its entirety" and not to the designation of individual properties or areas. LCDC's interpretation is consistent with Worrix's statements at the January 2008 rulemaking hearing as well as the report that Rindy submitted to LCDC before that hearing — described above at 261 Or.App. at 296, 323 P.3d at 391. In that report, Rindy noted that the workgroup "agreed that the `best' standard applies to the designation `in its entirety,' rather than to individual areas or parcels."
Suffice it to say, by its terms, the best achieves standard applies to the designation "in its entirety." Nothing in the text of the rule — or its enactment history — suggests that it was intended to apply to the designation of individual properties or areas as urban or rural reserve. Rather, as we have described, 261 Or.App. at 293-310, 323 P.3d at 390-400, Metro or a county's decision to designate particular land as urban or rural reserve is governed by other provisions under division 27. See generally OAR 660-027-0040(8) — (11) (concerning the application of the urban and rural reserve factors in determining whether to designate land as urban or rural reserves).
Thus, LCDC's interpretation of the best achieves standard to apply to the designation "in its entirety" — as opposed to the designation of individual properties or areas — is plausible and is not inconsistent with the text and context of OAR 660-027-0005(2) or any other source of law. DeLeon, Inc., 220 Or. App. at 548, 188 P.3d 354 (citing Don't Waste Oregon Com., 320 Or. 132, 881 P.2d 119). Again, we defer to it.
LCDC further reasoned that the best achieves standard does not require a ranking of alternative areas. Specifically, LCDC explained:
It follows from LCDC's construction that, because the best achieves standard "does not require Metro or a county to rank alternative areas," the standard is not satisfied by a single, optimal designation. Instead, under LCDC's reasoning, the standard allows for a range of permissible designations.
At first blush, LCDC's understanding appears contrary to the plain meaning of the word "best." As we have noted, the best achieves standard in OAR 660-027-0005(2) requires "a balance in the designation of urban and rural reserves that, in its entirety, best achieves" the competing objectives underlying the designation of such reserves. (Emphasis added.) In that context, the word "best" is a superlative of the adverb "well" and connotes a designation that achieves the underlying objectives to the highest degree or the fullest extent. See Webster's at 208 (defining "best" to mean, among other things, "to the highest degree: to the fullest extent"). Stated differently, the plain meaning of the word "best" suggests that a comparative alternatives analysis is required to determine the highest ranked — and therefore the "best" designation.
Nevertheless, LCDC endorsed a different construction of its own rule, based primarily on the function of the best achieves standard in the context of the statutory scheme and the division 27 rules as whole. As noted, the division 27 rules implement the governing statutes, which established a new, alternative process under which Metro and a county may designate suitable land as urban and rural reserves based on their consideration of factors rather than on the application of a priorities hierarchy essentially predicated on the agricultural quality of land.
Consistently with the enabling statutes, the division 27 rules permit Metro and a county to determine which land is suitable for designation as urban or rural reserve. In particular, the rules permit Metro and a county to enter into an intergovernmental agreement to designate urban and rural reserves in that county. Further, the rules generally require that, in designating such reserves, Metro and the county must apply the reserve factors to alternative areas within a county to determine whether and how to designate land. See 261 Or.App. at 305-08, 323 P.3d at 397-98 (describing alternatives analysis)
Ultimately, the designations made by Metro and each county with which it has entered into an agreement are compiled into a single, joint designation that is submitted to LCDC for its review. The best achieves standard applies to that regional designation of urban and rural reserves in its entirety.
In light of that regulatory scheme, LCDC construed the best achieves standard to allow for a range of permissible regional designations, rather than to require a comparative analysis so as to identify a single, permissible — that is, "optimal" — designation. In other words, consistently with the statutory design and the concomitant consideration of the reserve factors, "best achieves" partakes of legally circumscribed discretion such that Metro and the counties can properly reach a range of joint, regional designations.
LCDC's construction of the best achieves standard is consistent with appellate decisions addressing the concept of discretion in a variety of contexts. Those cases demonstrate that the essence of discretion requires the decision-maker — as opposed to a reviewing agency or court — to resolve evidentiary conflicts and draw inferences consistent with the record and to ultimately weigh and apply the various factors in reaching its ultimate decision. See, e.g., Sjomeling v. Lasser, 251 Or.App. 172, 285 P.3d 1116, rev. den., 353 Or. 103, 295 P.3d 50 (2012) (explaining that "best interests" of the child is a discretionary standard).
Further, LCDC's construction essentially ratified the workgroup's understanding of the standard. As Rindy noted in his report, the best achieves standard was "not intended to necessitate a numeric `ranking' of alternatives for reserve designation in order to determine
Richard Whitman, the director of DLCD when the division 27 rules were promulgated, also spoke at the January 2008 hearing. Consistently with Worrix's explanation, Whitman explained that the best achieves standard is not an "optimization standard" such that "there's only one best" regional designation. (Emphasis added.) Whitman explained that "best" is used in the context of a "balance" in the designation of urban and rural reserves that "in its entirety looking at the region as a whole * * * best achieves three different things" — that is, "livable communities, viability and vitality of agricultural and forest industries and protection of important natural landscape features." As Whitman explained, "[t]hose three things are in some tension obviously and so the balancing in between those is going to require a fair amount of judgment[]" — that is, "there is substantial discretion initially for Metro and [the] counties to make their decisions." Thus, according to Whitman, "because of the context" in which "best" is used, the standard allows for "a range of possible outcomes that Metro and the counties can come to."
Thus, LCDC's interpretation of the best achieves standard to permit a range of permissible designations by Metro and the counties is plausible and is not inconsistent with the division 27 rules, their context, or other sources of law. Accordingly, we defer to it.
Finally, LCDC concluded that "best achieves" is "a standard that Metro and the counties must demonstrate has been met, through their findings." Specifically, LCDC reasoned:
Reduced to its fundamental core, LCDC's reasoning appears to be predicated on its understanding that "best achieves" is a standard that ultimately allows for a range of permissible joint designations. As we understand LCDC's reasoning, Metro and the counties' discretion is not unbridled but, consistently with the statutory and regulatory scheme, is guided by their consideration of the urban and rural reserve factors and the need for "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). Thus, LCDC's interpretation of the best achieves standard to require Metro and the counties to demonstrate that the best
In sum, we conclude that the four legal premises informing LCDC's review of the best achieves standard are individually and collectively valid — as were the five premises informing LCDC's review of the consideration and application of the reserve factors. Thus, to the extent that petitioners' contentions hinge on the abstract invalidity of those legal premises, we reject them.
Nevertheless, several petitioners raise other challenges to LCDC's review of particular aspects of Metro and the counties' designation. We turn now to those particular (often site-specific) "as-applied" challenges.
Before addressing the parties' particularized contentions on a county-by-county-basis, we begin by rejecting an overarching contention — pertaining to LCDC's application of the principles circumscribing its review — that was raised by several petitioners. Specifically, they contend that LCDC erroneously understood the designation of urban and rural reserves to be a "political" decision materially unconstrained by legal requirements — and, as a result, impermissibly deferred to Metro and the counties in its review of the urban and rural reserves submittal. That contention finds ostensible support in the following statement from a 2010 DLCD report that LCDC quoted in its order: With the exception of the "best achieves" and "amount of land" standards, "`[DLCD] believes that the statutes and rules that guide this effort replaced the familiar standards-based planning process with one based fundamentally on political checks and balances[.]'" (Emphasis added.)
That emphasized language notwithstanding, it is evident from the totality of the context of LCDC's review, including its construction of the governing statutes, ORS 195.137-195.145, and its own implementing rules, OAR 660-027-0005-660-027-0080, that LCDC fully and correctly understood that the designation of urban and rural reserves is not a "political" decision, materially unconstrained by legal requirements. As we have already explained in detail, 261 Or.App. at 292-319, 323 P.3d at 390-404, LCDC identified nine legal principles circumscribing its review of the designation of urban and rural reserves. Although (as we will now proceed to explain) particular aspects of LCDC's review and analysis — including its application of those legal principles — are susceptible to reasoned challenge, petitioners' "political" deference complaint is unavailing. Accordingly, we proceed to petitioners' more focused challenges.
Because our resolution of petitioner Friends' second assignment of error obviates the need to consider petitioners' remaining contentions pertaining to Washington County's designation of reserves, we begin there. In that assignment, Friends contends that LCDC erred in approving Washington County's misapplication of the rural reserve factors. As explained below, we agree with Friends.
In setting the stage for our consideration of Friends' specific contentions, we describe the process by which Washington County applied the rural reserve factors. The county
To assess suitability, Washington County identified "land attributes" that "represent[ed] or define[d] the LCDC factors identifying Urban and Rural Reserves." Many of those attributes reflected principles embodied in the ODA Report (e.g., ODA's identification of land as Foundation, Important, or Conflicted and soil classifications). The county then mapped those attributes using a geographic information system (GIS) application. Washington County further explained that the
Ultimately, land was assigned a numeric value from 1.7 (least suitable) to 8.4 (most suitable) indicating its suitability for designation as rural reserves. In the end, the suitability assessment indicated that all the studied lands "remain[ed] candidates for potential Rural Reserves."
For that reason, Washington County "began more detailed evaluations" to identify candidate rural reserve areas for the protection of the agricultural industry. Noting that the ODA Report was the basis for its evaluation of such land, Washington County explained that most of the land that it sought to study was identified as either Foundation Agricultural Land or Important Agricultural Land. Further, Washington County explained that, because "the majority of the existing UGB [in Washington County] abuts Foundation Agricultural Land," there "will be serious consideration of adoption of Urban Reserves on the valley floor near existing cities." For those reasons, the county concluded that it was "necessary" to evaluate "additional characteristics (beyond the [ODA Report]) for each [f]actor."
In general terms, Washington County divided the "entire reserve study area * * * into 41 sub-areas" and, in applying the factors, assessed four attributes: (1) "[t]he degree to which the sub-area was subject to urbanization"; (2) "[t]he productivity rating of the area"; (3) "[t]he degree to which the area has multiple parcels"; and (4) "[t]he physical features of each area."
In sum, contrary to the county's apparent assertions on review, we do not understand that its initial suitability assessment — which incorporated principles from the ODA Report — played any role in its eventual identification of candidate rural reserve areas — which was fundamentally predicated on the assessment of the four attributes described above. As a practical matter, the county used those four, narrowly focused attributes as inexact surrogates for the statutorily prescribed rural reserve factors. Thus, the attributes functioned as "pseudo" factors.
The county's use of those attributes (or pseudo factors) is at the heart of Friends' contentions on review. Accordingly, we describe in detail Washington County's employment of those attributes in relation to its application of two of the statutorily prescribed rural reserve factors.
As to the statutory factor pertaining to whether land has "suitable soils and available water where needed," ORS 195.141(3)(c),
(Footnotes and internal quotation marks omitted.)
Even though the statutory factor pertaining to soil suitability and water availability was derived from the ODA Report and its concomitant reliance on the NRCS classifications, the county discounted the first three rating systems (which were all predicated on NRCS classifications), primarily because — in the county's view — they were not useful tools for determining which Foundation Agricultural Land in the county was most suitable for designation as rural reserves. Instead, the county determined that the rating system described in the Huddleston Report was the most useful because "future water availability will be a significant limiting factor" and that this ranking system "highlights the importance of irrigation" and allows for a more refined analysis. Thus, as a practical matter, the county's analysis of "suitable soils and available water where needed," ORS 195.141(3)(c), essentially reduced to a single attribute (or pseudo factor)-that is, whether land is irrigated (i.e., whether land is in an irrigation district or has an existing agricultural water right based on "place of use"). As the county explained,
The county then turned to the statutory factor concerning whether land is "suitable to sustain long-term agricultural operations" taking into account, among other things, "[t]he existence of a large block of agricultural or other resource land with a concentration or cluster of farms" and "[t]he agricultural land use pattern, including parcelization, tenure and ownership patterns." ORS 195.141(3)(d). As to that statutory factor, the county explained:
In sum, although the statutory "suitability" factor contemplates the assessment of a variety of attributes, the county's analysis essentially reduced to a single attribute (or pseudo factor) — that is, the degree to which an area was parcelized.
Before LCDC, Friends objected to the reserves designation, asserting that Washington County's analysis of the rural reserve factors was "legally flawed" and resulted in their misapplication. Specifically, Friends asserted:
(Footnote omitted.)
Friends notes that "the legislative and administrative records demonstrate" that the rural reserve factors in ORS 195.141(3) and OAR 660-027-0060(2) "are derived from the [ODA Report]" and reflect the "substantive policy" reflected therein. For that reason, Friends explained that, in analyzing the factors, Metro and the county cannot "undermine" the policy reflected in the ODA Report.
Stated simply, Friends contended that, because the statutorily prescribed rural reserve factors derive their meaning from the ODA Report — which was based on particular assumptions and the use of particular methodologies — the principles embodied in that report circumscribe the application of the factors and, to the extent that Washington County departed from those principles, its application of the factors was legally erroneous. According to Friends, Washington County did just that in assessing whether land "[h]as suitable soils and available water," ORS 195.141(3)(c), and whether the land "[i]s suitable to sustain long-term agricultural operations" by taking into account "[t]he existence of a large block" of agricultural land, ORS 195.141(3)(d)(A).
LCDC rejected Friends' contentions. Specifically, LCDC reasoned: "Contrary to ODA's and 1000 Friends' arguments,[
On review, Friends contends that LCDC erred in approving "Metro's use" of Washington County's "alternate agricultural analysis to evaluate land for rural reserves designation," which was "simply a misapplication of the factors * * * under another name." Friends, essentially reiterating its contentions before LCDC, challenges, in particular, the county's application of the two rural reserve factors that were foreshadowed above.
Friends first points to ORS 195.141(3)(c), the "suitable soils and available water" factor. With regard to the county's analysis of soil suitability, Friends contends that the county used an "alternative ranking system
Friends also points to ORS 195.141(3)(d), which concerns whether land is "suitable to sustain long-term agricultural operations" by taking into account various considerations, including "[t]he existence of a large block of agricultural or other resource land with a concentration or cluster of farms," ORS 195.141(3)(d)(A). Specifically, Friends contends that, contrary to the substantive policy embodied in the ODA Report, the county "equates `large block' with large `parcel,' and `parcelization' with `ownership'" and "considered an area `parcelized,' and therefore too small for farming, if the `majority of tax lots * * * were generally 35 acres or less,' regardless of whether the `parcels' were in agricultural use, or part of a larger farming area."
Washington County remonstrates that, because much of the land in the county is Foundation Agricultural Land, it was "justified" in further refining its analysis "to explore other qualities not noted in the [ODA Report]." Moreover, the county emphasizes that its "analysis did not replace the factors; it enhanced the level of detail so that [it] could make more refined determinations as it applied the factors. Thus, the analysis was more rigorous, and not irrelevant, inaccurate, or contrary to the factors as Friends states." As amplified below, we disagree with Washington County and conclude that LCDC erred in approving a designation that was predicated on the county's legally flawed application of ORS 195.141(3)(c) and ORS 195.141(3)(d).
At the outset, we reemphasize two points. First, the rural reserve factors in ORS 195.141(3) were derived from the ODA Report. 261 Or.App. at 269-70, 272 n. 5, 323 P.3d at 377-78, 378 n. 5. Second, in promulgating OAR 660-027-0060(2), LCDC simply incorporated the rural reserve factors from ORS 195.141(3) that pertained to protection of the agricultural industry. 261 Or.App. at 274, 323 P.3d at 380. Thus, resolution of the parties' competing contentions depends on the proper construction of the statutory factors in ORS 195.141(3). Accordingly, we apply the familiar methodology in PGE, 317 Or. 606, 859 P.2d 1143, as amplified in Gaines, 346 Or. 160, 206 P.3d 1042, which requires an examination of "the text and context of the statute and any legislative history that appears to be helpful * * *." Bell, 353 Or. at 540, 301 P.3d 901.
We begin with the text of the statutorily prescribed rural reserve factors. Again, ORS 195.141(3) provides:
Although we generally turn to dictionary definitions to determine the ordinary meaning of undefined statutory terms such "capable" and "suitable," doing so here would be of limited usefulness.
As previously explained, 261 Or.App. at 268-69, 323 P.3d at 376-77, the ODA Report described an analysis of agricultural lands based primarily on "an examination of both the capability (ability of the land to produce an agricultural product) and the suitability (ability to conduct viable farm use) of any given tract of land to be utilized for farm use." (Emphasis added.) Thus, in the context of the ODA Report, "capability" and "suitability" are qualitatively distinct concepts whose content derives from ODA's use of particular methodologies and assumptions in examining agricultural lands.
"Capability" refers to the "[t]he physical ability of land to produce an agricultural product." (Emphasis added.) According to ODA, the "capability" of land "is a key and dominant factor in any assessment." Further, ODA explained that, in assessing "capability," the "[q]uantity and quality of soils and water play a significant role."
Turning first to the quantity and quality of soils, ODA relied on NRCS classifications concerning "agricultural capability" and "importance." In terms of "agricultural capability," NRCS places soils into eight agricultural capability classes. As ODA noted, "[t]he better the agricultural capability (decreasing from I-VIII), the less management (input) is required by the operator to produce a crop." In terms of "importance," NRCS classifies farmland as "prime" (i.e., "land that has the best combination of physical and chemical characteristics for producing food, feed, forage, fiber and oilseed crops") or "unique" (i.e., "land other than prime farmland used for the production of specific high value food and fiber crops"). In turn, NRCS's agricultural capability and importance classifications are used to define "high-value farmland." ORS 215.710; OAR 660-033-0020(8). As ODA summarized, "high-value farmland" is "land in a tract composed predominantly (50.1%) of certain specified soils," including those classified by NRCS as "Prime, Unique, Capability Class 1, or Capability Class 2 not irrigated" or "Prime Unique, Capability Class 1, or Capability Class 2 if irrigated[.]" (Underscoring in original.)
In addition to capable soils, ODA noted that the availability of water is "key to the production of many high-value crops." Nonetheless, although acknowledging the importance of available "water for irrigation of agricultural crops and livestock watering," ODA explained that "many crops, including high-value crops, can be produced using dryland
By contrast, "suitability" does not concern the physical capability of land (e.g., whether the land has suitable soils and available water). Instead, "suitability" refers to the ability of a tract of land to be utilized for long-term farm use based on other factors (e.g., adjacent and area land use patterns; agricultural land use patterns; parcelization, tenure, and ownership patterns; agricultural infrastructure; zoning; location in relationship to adjacent lands zoned for nonresource development; location and availability of edges and buffers to insulate and protect agriculture operations from nonfarm uses). In particular, with regard to "parcelization," ODA explained that,
Ultimately, ODA explained:
In sum, the principles articulated in the ODA Report circumscribe the essential content of three of the four statutory factors. In particular, the concept of "capability" — the physical ability of the land to produce an agricultural product — is reflected in two of the statutory factors — viz., ORS 195.141(3)(b) (whether land "[i]s capable of sustaining long-term agricultural operations") and ORS 195.141(3)(c) (whether land "[h]as suitable[
With that understanding of the ODA Report and its relationship to the statutory factors, we turn to Friends' specific challenges concerning the county's application of two of the rural reserve factors — that is, ORS 195.141(3)(c) and ORS 195.141(3)(d). As explained below, we agree with Friends that the county misapplied those factors.
Friends first contends that the county's analysis of "suitable soils and available water where needed," ORS 195.141(3)(c), was contrary to meaning of that factor as reflected in the methodology underlying the ODA Report. We agree. The ODA report demonstrates that an examination of "suitable soils and available water where needed to sustain long-term agricultural operations," ORS 195.141(3)(c), refers to an evaluation of the quantity and quality of soils by reference to NRCS classifications concerning "agricultural capability" and "importance" and the
Friends also contends that, in determining whether land "[i]s suitable to sustain long-term agricultural operations," ORS 195.141(3)(d), the county impermissibly assessed the existence of "large block[s]" of agricultural land, ORS 195.141(3)(d)(A), by analyzing a single attribute — viz., the degree to which an area was parcelized. Again, we agree with Friends. Simply stated, pursuant to ORS 195.141(3)(d), the legislature clearly intended that an examination of "parcelization" for purposes of ORS 195.141(3)(d)(C) was distinct from an examination of "[t]he existence of a large block of agricultural land" for purposes of ORS 195.141(3)(d)(A). Moreover, as the ODA Report demonstrates, those two concepts are qualitatively different. The concept of "large blocks" refers to the functional relationship of agricultural land to other agricultural or resource lands and the identification of large, intact agricultural areas. By contrast, evaluating "parcelization" — that is, the number and size of parcels within an area — does not concern the functional relationship of a parcel to other lands. Thus, the county misapplied ORS 195.141(3)(d).
The county's attempt to "justif[y]" its application of those factors on the ground that it was necessary "to explore other qualities not noted in the [ODA Report]" because much of the land in the county is Foundation Agricultural Land is unavailing. Because the meaning of the statutory factors derives from the ODA Report, the county may permissibly evaluate quantitative attributes that are consistent with the assumptions, principles, and methodologies described in that report. See Parklane, 165 Or.App. at 24, 994 P.2d 1205 (affirming LUBA's rejection of Metro's reliance on URSA-matic data — that is, data generated from a computer application that examined various attributes — to measure the suitability of land for designation as urban reserve under the division 21 rules "at least in the absence of a showing that the data was responsive to the considerations required by [the applicable] rule"). However, as we have explained, that is not what the county did here. Instead, the county predicated its assessment on narrowly circumscribed pseudo factors that did not meaningfully engage with the content of the statutorily prescribed factors as derived from the ODA Report.
Accordingly, we conclude that, because Washington County's analysis of the rural reserve factors was legally impermissible, it necessarily misapplied the rural reserve factors and LCDC erred in concluding otherwise. Thus, LCDC's order is unlawful in substance in that regard and must be reversed and remanded. ORS 197.651(10)(a) (providing that we shall reverse or remand an order if, among other things, it is "[u]nlawful in substance").
Washington County's erroneous application of the rural reserve factors is significant and, as we will explain, obviates the need to consider many of petitioners' remaining contentions. We begin by noting that, because the designation of urban and rural reserves are interrelated — particularly where Foundation Agricultural Land is involved
Thus, our disposition of Friends' second assignment of error — which requires a remand of Washington County's designation of urban and rural reserves and a remand to Metro and the counties to assess whether any new joint designation satisfies the best achieves standard — obviates the need to further consider petitioners Friends', Save Helvetia's, and Chesarek's remaining contentions pertaining to Metro and the county's application and consideration of the factors as they pertain to the designation of reserves in Washington County. Further, our disposition obviates the needs to consider any of petitioners' remaining contentions pertaining to whether the joint submittal satisfied the best achieves standard. Accordingly, we turn to the contentions pertaining to Clackamas County's and Multnomah County's application and consideration of the factors in designating urban and rural reserves in those counties.
In his second assignment of error, Maletis contends that LCDC erred in approving Clackamas County's application of OAR 660-027-0060(4) — that is, the "safe harbor provision" — in designating Maletis's property rural reserves. As previously noted, 261 Or. App. at 281, 323 P.3d at 384, that rule provides:
In particular, Maletis asserts that the safe harbor provision contravenes the requirement in ORS 195.141(3) that, "[w]hen designating a rural reserve under this section to provide long-term protection to the agricultural industry," Metro and a county "shall base the designation on consideration" of a nonexclusive list of factors. That is so, according to Maletis, because "the `safe harbor' provision * * * effectively carves out an administratively-created exception to the mandatory requirement" that Metro and a county must "consider the delineated reserves factors under ORS 195.141(3)."
However, under the circumstances of this case, we need not resolve Maletis's contention that application of the safe harbor provision excuses Metro and the counties from considering the reserve factors. To explain why that is so, a brief explanation of the procedural history underlying Clackamas County's designation of rural reserves is necessary.
In the initial designation of reserves that was submitted to LCDC for review, Clackamas County essentially relied on the safe harbor provision in designating Area 4J — which includes Maletis's property — as rural reserves. However, after LCDC remanded Washington County's designation, Clackamas County — without amending its underlying ordinance — revised its findings concerning the designation of reserves in the county. In those revised findings Clackamas County again relied on the safe harbor provision in designating Area 4J as rural reserves but, in doing so, also explained why that land should be so designated based on the county's own consideration of the rural reserve factors.
On review, consistently with his objection before LCDC, Maletis, in his fifth assignment of error, contends that Clackamas
We sustain LCDC's rejection of Maletis's objection. Even if we assume for the sake of argument that Maletis is correct that Clackamas County's process in adopting the revised findings was deficient, Maletis did not contend, much less explain and establish, before LCDC that, in the circumstances of this case, he suffered cognizable prejudice as a result of those deficiencies. See ORS 197.633(3)(b) (LCDC's standard of review "[f]or procedural issues[ ] is whether the local government failed to follow the procedures applicable to the matter before the local government in a manner that prejudiced the substantial rights of a party to the proceeding"). For example, as Clackamas County noted, Maletis failed to "explain why the county's failure to hold public hearings and two readings affected [his] ability to argue against French Prairie's rural designation" — the area in which Maletis's property is located — and "[did] not state what they would have done at a hearing or between the two readings to affect the [county's] decision which had already been approved by LCDC." Thus, LCDC did not err in denying Maletis's objection to the validity of Clackamas County's revised findings.
In sum, we reject Maletis's contention pertaining to Clackamas County's revised findings, and, having done so, we need not address Maletis's contentions pertaining to the county's application of the safe harbor provision to designate his property rural reserve. That is so because, even if LCDC erred in approving Clackamas County's application of the safe harbor provision to Maletis's property, the county's rural reserve designation is alternatively and independently based on its consideration of the factors as explained in the revised findings.
We conclude our review of Clackamas County-specific "application" matters by addressing Graser-Lindsey's contentions pertaining to the county's application of the rural reserve factors. Specifically, in her second assignment of error, Graser-Lindsey contends that LCDC erred in approving Clackamas County's misapplication of the rural reserve factors. As she had before LCDC, on review Graser-Lindsey contends that, in determining whether to designate land as rural reserves, the county had "rel[ied] primarily on the ODA [R]eport mapping categories" — that is, Foundation, Important, and Conflicted — and "neglected the mandatory consideration of the OAR 660-027-0060(2) factors," which resulted in the impermissible discounting of the agricultural value of Conflicted Agricultural Land.
As support for her contention, Graser-Lindsey refers to a matrix created by county staff in which the discussion of each rural reserve factor generally mirrored the information in the ODA Report. The matrix was a product of the analysis of "[e]xpert groups" identified by the county's Technical Advisory Committee. Each group analyzed the suitability of the study areas in relation to particular rural reserve factors. An introduction to the matrix indicates that the underlying analysis "relie[d] heavily" on the ODA Report. Ultimately, the matrix was provided to the Policy Advisory Committee to assist in its discussions and recommendations pertaining to rural reserves.
Graser-Lindsey's contentions on review pertaining to the county's application of the
In its first assignment of error, MLG contends that LCDC erred in failing to determine whether Metro and the counties (including Multnomah County) "balanced" the factors as part of their "consideration." Specifically, MLG contends that, in summarizing its review function, LCDC "fail[ed] to recite the `balancing' requirement" and that LCDC failed to apply that requirement in addressing its objection concerning the designation of its property as rural reserve. MLG acknowledges that it did not raise that contention before LCDC but asserts that it is reviewable as "plain error."
First, as we reiterated in 1000 Friends of Oregon v. LCDC, 244 Or.App. 239, 268, 259 P.3d 1021 (2011) (McMinnville), "the focus of our review is on the issues presented on appeal that have been preserved before LCDC." MLG acknowledges that it did not preserve the contention that it seeks to raise on review.
Second, even assuming, without deciding, that plain error applies in this context and that the purported deficiency qualifies as such, we can review it and correct it only if we affirmatively exercise our discretion to correct the error after identifying our reasons for doing so. Ailes v. Portland Meadows, Inc., 312 Or. 376, 381-82, 823 P.2d 956 (1991). Generally, it is incumbent on the party requesting such review to explain "why we should exercise our discretion to correct [the] error." State v. Tilden, 252 Or.App. 581, 589, 288 P.3d 567 (2012). Here, MLG proffers no reasoned explanation — indeed, none at all — as to why we should exercise our discretion to remedy the purported plain error, and we are not obliged to search the record in an effort to hypothesize putative justifications sua sponte. Accordingly, we reject MLG's contention without further discussion.
As part of its first assignment of error, petitioner Barkers contends that LCDC erred in concluding that it was legally permissible to designate its property as rural reserve. Barkers owns approximately 62 acres in Multnomah County. The property is south of Skyline Boulevard and is bisected by Germantown Road at Kaiser Road. As we understand it, part of the property abuts the
Barkers' property was studied for designation as rural reserve as part of Study Area 6 and for designation as urban reserves as part of Study Area 6b. Our understanding is that Study Area 6 is part of what was later denominated as Area 9D, which Multnomah County designated, in its entirety, as rural reserves.
Before LCDC, Barkers objected to the propriety of the designation of its property as rural reserve to protect important landscape features. LCDC denied that objection — as well as nine other objections pertaining to the propriety of the designation of particular properties — reasoning as follows:
(Emphasis added.) In other words, in denying Barkers' objection, LCDC concluded that, in designating Area 9D as rural reserve, the county had adequately considered the pertinent factors.
On review, Barkers essentially challenges that conclusion.
The county, however, disputes Barkers' characterization of the issue for three reasons. As we will explain, each of those reasons is unavailing.
First, we disagree with the county's assertion that Barkers' contention raises only "the narrow question of the validity of the study area within which the Barkers Five property is located — that is, whether this study area complied with the standards for identifying `areas' for evaluation as urban and rural reserve." As did LCDC, we understand Barkers' contention to pertain to the propriety of designation of its property and not to the propriety of composition of the study area of which it was a part.
Second and relatedly, the county asserts that the propriety of designating Barkers' property as rural reserve "is irrelevant to this court's review of the lawfulness of LCDC's review of the various areas designated as reserves." (Emphasis and underscoring in original.) However, as we have already explained, the gravamen of Barkers' contention that its property was improperly designated rural reserve solely because of its inclusion within Area 9D is that the county inadequately considered the reserve factors with regard to the land that it actually designated as rural reserves — that is, all of the land in Area 9D. See 261 Or.App. at 298-301, 323 P.3d at 392-94. Resolution of that challenge requires an examination of the legal sufficiency of the county's "consideration" of the factors as to the "land" that was ultimately designated under the standards described above at 261 Or.App. at 305, 323 P.3d at 397 (describing "consideration").
Finally, the county contends that Barkers' contention should be understood as a substantial evidence challenge to the designation of its property as rural reserve. Again, we disagree. As we have just noted, Metro and the counties' "consideration" of the factors is reviewed for legal error.
Thus, we agree with Barkers that the issue on review is whether the county adequately considered the pertinent factors in designating all of the land in Area 9D as rural reserves. Further, as amplified below, we agree with Barkers that LCDC erred in concluding that the county's consideration was adequate. Before turning to our evaluation of the county's "consideration" of the pertinent rural reserve factors, we revisit the legal principles that govern our review.
As we have described, the legislature required that the designation of reserves be based on "consideration" of the pertinent reserve factors. ORS 195.141(3); ORS 195.145(5). Further, as we have explained, 261 Or.App. at 301, 323 P.3d at 394, "consideration" of the reserve factors requires that Metro and the counties (a) apply and evaluate each factor, (b) weigh and balance the factors as a whole, and (c) meaningfully explain why a designation as urban or rural reserves is appropriate. In other words, "consideration" of the reserve factors is a legal requirement that Metro and the counties must demonstrate in order for the designation of reserves to be sustained.
That demonstration must be made in Metro and the counties' joint and concurrent submittal to LCDC. OAR 660-027-0040(10) (providing, in part, that Metro and the counties "shall adopt a single, joint set of findings of fact, statements of reasons and conclusions explaining why areas were chosen as urban or rural reserves"). LCDC reviews the submittal for "[c]onsideration of the factors in OAR 660-027-0050 or 660-027-0060, whichever are applicable." OAR 660-027-0080(4)(c). In turn, we review LCDC's order
Thus, in this case, the pertinent legal inquiry reduces to whether LCDC failed to correctly assess whether Multnomah County adequately "considered" the rural reserve factors in designating all of the land in Area 9D as rural reserves. As we have explained, legally sufficient "consideration" in this context, among other things,
261 Or.App. at 306, 323 P.3d at 397. Accordingly, as did LCDC, we assess the legal sufficiency of the county's explanation as to why all the land in Area 9D — including Barkers' property — was designated rural reserve by turning to the submittal itself.
In that regard, Metro and the counties' submittal explained why Area 9D was designated as rural reserves in conjunction with the explanation pertaining to another area (i.e., Area 9F). In its entirety, the explanation pertaining to Areas 9D and 9F states:
We conclude that, because the county failed to meaningfully explain why its consideration of the rural reserve factors yields a rural reserve designation of all land in Area 9D, LCDC erred in concluding that the county's "consideration" of the factors was legally sufficient. Two salient conjunctive observations suffice to explain why that is so.
First, in the submittal, Metro and the county both referred to the part of the county record in which the Citizen Advisory Committee and county staff applied each of the rural reserve factors to evaluate all of the land in Study Area 6 which included Barkers' property — and then ranked how the land in that study area fared under each of the factors. The application of the reserve factors to Study Area 6 often yielded different results as to the land in the area that is north of Skyline Boulevard and the land that is south of Skyline — including Barkers' property. Nevertheless, in the description in the submittal as to how Areas 9D (which encompasses all of Study Area 6) and 9F "fare under the factors," only a single sentence pertains to the land in Study Area 6 south of Skyline Boulevard: "Landscape features mapping south of Skyline includes both Rock Creek and Abbey Creek headwaters areas that abut the [C]ity of Portland on the east and follow the county line on the west." Nothing more.
Second, the submittal's description of why Areas 9D and 9F were designated as rural reserve consists of a single paragraph with broad, unqualified declarations that appear to relate to some of the factors in OAR 660-027-0060(3) pertaining to the designation of rural reserves to protect important natural landscape features. However, it does not meaningfully explain why consideration of the pertinent factors yields a designation of all of the land in Area 9D — including Barkers' property — as rural reserve. That is so, because, as noted above, the application of the factors to Study Area 6 often yielded different results as to the land in the area that is south of Skyline Boulevard — including Barkers' property. For example, staff ranked the land in the study area south of Skyline Boulevard as having a high potential for urbanization and the land north of Skyline as having a low potential for urbanization.
To be clear, as explained above, the county was not required to justify the designation of Barkers' property. Instead, the county was obligated to meaningfully explain why its consideration of the factors yielded a rural reserve designation of all of the land in Area 9D. Where, as here, a significant amount of land in an area — that is, in this case, the land in Area 9D south of Skyline Boulevard — is dissimilar from the rest of the land in that area as demonstrated by the county's application of the factors, the county must meaningfully explain why, notwithstanding the ostensible differences, it designated all of the land in that area as it did.
Such an explanation need not be elaborate but should acknowledge the dissimilarities and explain why, nonetheless, the county opted for the reserves designation that it did. For example, a county could acknowledge the qualities of dissimilar land within an area (e.g., differences in potential for urbanization, slopes, or the importance of wildlife habitat compared to other land) but explain nonetheless that, despite those dissimilar qualities, the land should be designated along with the other land in the area (e.g., on balance dissimilar land will serve as a buffer so as to reduce conflicts between urban and rural uses).
We thus conclude that LCDC erred in concluding that the county's "consideration" of the factors pertaining to the rural reserve designation of Area 9D was legally sufficient. Accordingly, we must remand LCDC's order in that regard. On remand, LCDC must determine the effect of that error on the designation of reserves in Multnomah County in its entirety.
Finally, we turn to petitioners' contentions that LCDC's order is unlawful in substance because LCDC erred in concluding that the designation of particular areas as either urban or rural reserves was supported by substantial evidence in the whole record. See ORS 197.633(3)(a) (providing that LCDC's standard of review "[f]or evidentiary issues[] is whether there is substantial evidence in the record as a whole to support the local government's decision").
A factual finding is supported by substantial evidence when the record, viewed as a whole, permits a reasonable person to make the finding. Younger v. City of Portland, 305 Or. 346, 360, 752 P.2d 262 (1988). Stated differently,
Garcia v. Boise Cascade Corp., 309 Or. 292, 295, 787 P.2d 884 (1990).
To the extent that the parties contend that the order on review is unlawful in substance because LCDC misapplied its standard of review for substantial evidence, our role is not to review Metro and the
Although it would be "helpful and desirable," LCDC "need not always address in detail whether or not the conflicting evidence rendered the supporting evidence no longer substantial and why." Id. at 360, 752 P.2d 262 (internal quotation marks omitted). However, "where the evidence in the record is such that it would appear to [us] that [LCDC] has misunderstood or misapplied" substantial evidence review, LCDC "courts reversal if it does not explain its decision in more detail than a simple statement that it finds, upon consideration of all the evidence in the record, that the local government's decision is or is not supported by substantial evidence." Id. In other words, if conflicting evidence in the record gives rise to an inference that LCDC misunderstood its standard of review, LCDC "courts reversal" if it fails to provide a meaningful explanation as to why — even in light of the conflicting evidence — the local government's decision is supported by substantial evidence.
In its order, LCDC articulated its standard of review under ORS 197.633(3), which requires, among other things, that, "[f]or evidentiary issues," LCDC reviews for "whether there is substantial evidence in the record as a whole to support the local government's decision." LCDC also explained its general understanding of what substantial evidence review entails:
(Second emphasis in original; first and third emphases added.)
Further, OAR 660-027-0080(4)(a) provides that, in reviewing whether the submittal "compli[es] with the Goal 2 requirement for an adequate factual base," LCDC "shall consider whether the submittal is supported by substantial evidence. Under ORS 183.482(8)(c) substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding[.]" In applying that standard, LCDC noted in its order that,
(Emphasis in original.)
We readily conclude that LCDC properly articulated the substantial evidence standard of review. Accordingly, to the extent that particular petitioners contend that the order on review is unlawful in substance because LCDC misapplied its standard of review for substantial evidence, we will affirm unless the evidence is "so at odds" with LCDC's evaluation that we can infer that LCDC "misunderstood or misapplied" the proper standard. Younger, 305 Or. at 359, 752 P.2d 262. With those standards in mind, we turn to petitioners' specific contentions on a county-by-county basis.
As explained above, 261 Or.App. at 326-34, 323 P.3d at 408-12, because Washington County misapplied the rural reserve factors, the designation of urban and rural reserves in that county must be remanded. As a prudential matter, given the potential pervasive consequences of the remand, our disposition in that regard obviates the need to consider any of the substantial evidence challenges pertaining to particular properties in Washington County.
In his first assignment of error, Maletis contends that LCDC's order is unlawful in substance because it misapplied its substantial evidence standard of review and, as a consequence, approved the designation of his property as rural reserve even though that designation was not supported by substantial evidence.
Maletis's property is located in Area 4J, which Clackamas County designated as rural reserve and LCDC described as follows:
(Record citations omitted.) According to Maletis, he owns "approximately 385 acres" within Area 4J that is
(Record citations omitted.)
Before LCDC, Maletis objected to the designation of his property as rural reserve. As noted by LCDC, the gravamen of Maletis's objection was that "substantial evidence in the record supports designating [Maletis's] property `urban reserve' and conversely does not support the current designation as `rural reserve.'" In denying that objection, LCDC reasoned:
(Record citations omitted; emphasis added.)
On review, Maletis's primary contention is that LCDC failed to properly engage in substantial evidence review.
(Record citations omitted; emphasis in original.) Relatedly, Maletis contends that LCDC's reasoning is inadequate to respond to its objection because, although LCDC "identified the issue and supplied its legal conclusion," LCDC failed to "reference * * * facts or evidence" and failed to provide a "meaningful explanation of [its] reasoning, other than a reference to Clackamas County's findings (which are not themselves evidentiary)." We disagree with Maletis's contentions.
As we have explained, LCDC properly articulated the substantial evidence standard of review. 261 Or.App. at 348-50, 323 P.3d at 420-21. Further, LCDC acknowledged that Maletis had identified evidence that would support an urban reserve designation of his property. Nevertheless, LCDC explained that the existence of that evidence did not, in and of itself, provide a basis for it to remand the decision because,
(Emphasis in original.) Ultimately, LCDC determined that substantial evidence existed in the record to support a designation of Area 4J generally — and Maletis's property specifically — as rural reserve.
Again, our role is not to review Metro and the counties' submittal for evidentiary support. Instead, we determine whether LCDC understood and applied the substantial evidence standard correctly. Younger, 305 Or. at 358-59, 752 P.2d 262. The gravamen of LCDC's reasoning is that, where, as here, evidence in the record would support either an urban or rural designation, the choice of designation is left to Metro and the counties. In other words, LCDC essentially accepted the fundamental premise underlying Maletis's contentions — viz., that substantial evidence supported the designation of his property as urban reserve. Nevertheless, LCDC explained that, because there was also substantial evidence to support Metro and the county's rural reserve designation, the choice of designation must be made by the local government. Further, as we previously explained, 261 Or.App. at 305-08, 323 P.3d at 397-98, except in circumstances not present here, determinations of relative suitability — that is, determinations that land that is suitable for either urban or rural reserve designation is better suited for one designation over the other — are not required by the pertinent statutes and rules. Under those circumstances, we cannot infer that LCDC "misunderstood or misapplied" the substantial evidence standard of review. Id. at 359, 752 P.2d 262.
Further, although Maletis would have preferred that LCDC provide a more detailed response to his objection, such a response is not required here. In describing an appellate court's review of a LUBA decision, the Supreme Court in Younger explained:
305 Or. at 360, 752 P.2d 262 (emphasis added).
Thus, we conclude that LCDC correctly understood and applied the substantial evidence standard of review and that it adequately responded to Maletis's objection that the designation of its property was not supported by substantial evidence. Accordingly, we reject Maletis's first assignment of error.
In its second assignment of error, West Linn contends that "LCDC's misinterpretation and misapplication of its legal and evidentiary scope of review resulted in misapplication of the [f]actors and other applicable law" to four urban reserve areas in Clackamas County — viz., Area 4A (Stafford), 4B (Rosement), 4C (Borland), and 4D (Norwood), which West Linn collectively refers to as "Stafford." LCDC described those areas as follows:
Before LCDC, West Linn objected to the designation of Stafford as urban reserve on a number of grounds. In general terms, West Linn deconstructed the evidence in relation to each of the urban reserve factors and contended that the designation of Stafford as urban reserve did not "comply" with the factors, either individually or collectively, and, thus, that the designation of Stafford as urban reserve is not supported by substantial evidence.
Because it is ultimately dispositive, we focus on LCDC's resolution of West Linn's objections pertaining to the provision of transportation to Stafford. Specifically, West Linn contended that the designation of Stafford as an urban reserve did not demonstrate compliance with OAR 660-027-0050(1) and (3)
(Footnotes omitted; emphasis added.)
LCDC's response to West Linn's objection began by explaining that
Specifically, LCDC noted that "[t]he cities * * * assert that the designation does not comply with OAR 660-027-0050(1) or (3) * * * or the 2035[RTP]." As LCDC further explained, the cities
(Third brackets in LCDC's order.)
LCDC then addressed West Linn's objections pertaining to each of the other urban factors. Ultimately, in rejecting West Linn's objection that "the decision to designate the Stafford Area as an urban reserve does not demonstrate that the factors as a whole support designation of the Stafford Area as an Urban Reserve," LCDC reasoned:
West Linn's first contention is unavailing. Although West Linn contends that the designation of Stafford as urban reserve does not comply with the various urban reserve factors, we agree with LCDC that "compliance" with the factors is not required. As we explained above, the statutes require that Metro and the counties must base its designation on "consideration" of the pertinent reserve factors — and the "factors" themselves are not independent approval criteria such that each factor must be satisfied before a designation may be made. 261 Or.App. at 298-300, 323 P.3d at 393-94. Accordingly, the issue reduces to whether LCDC's order is unlawful in substance because it misapplied its review for substantial evidence.
In that regard, we conclude that LCDC's order is unlawful in substance because the evidence to which West Linn points, indicating that the transportation facilities serving Stafford will be failing by 2035, is "so at odds" with LCDC's determination that the designation of Stafford as urban reserves is supported by substantial evidence that it gives rise to an inference that LCDC misunderstood its standard of review. Younger, 305 Or. at 359, 752 P.2d 262. Thus, it was incumbent on LCDC to provide a "meaningful explanation" as to why — even in light of that conflicting evidence — the designation of Stafford as urban reserve is supported by substantial evidence. LCDC did not do so.
Here, West Linn pointed to evidence demonstrating that "the RTP indicates that almost all of the transportation system that would provide access to the Stafford Area will be functioning at service level F (for `failing') by 2035." Again, Metro and the county's findings in the submittal pertaining to that evidence — which LCDC essentially adopted without further explanation — state that the
(First brackets in LCDC's order.)
In other words — and significantly — Metro and the county do not take issue with the correctness of the evidence to which West Linn points — viz., that the RTP indicates that, by 2035, almost all of the transportation facilities serving Stafford will be failing. Instead, they reason that the evidence is immaterial because (1) the RTP is only a prediction of traffic flows for a 25-year period; (2) the urban reserves planning period extends to 2060, which is 25 years beyond the time frame addressed in the 2035 RTP; and (3) the transportation system will necessarily change (e.g., a new light rail line in the vicinity of I-205 has been identified as a "`next phase'" of regional priority). Stated simply, Metro and the county's reasoning reduces to nothing more than the proposition that the transportation system will change — and presumably improve — by 2060. However, Metro and the county do not explain, by reference to the evidence in the record, why that is so. Bluntly: Metro and the county's reasoning — which LCDC essentially adopted in resolving the substantial evidence challenge — is impermissibly speculative.
Although the designation of land as urban reserve must be based on consideration of the factors, which requires, among other things, that the factors are weighed and balanced as a whole — and although Metro and the counties need not demonstrate "compliance" with any factor — the provision of adequate transportation facilities is critical to the development of urban areas. Evidence
In sum, West Linn has pointed to weighty, countervailing evidence that is squarely at odds with LCDC's determination that the designation of Stafford as urban reserve is supported by substantial evidence, and LCDC has failed to meaningfully explain why — even in light of that conflicting evidence — Metro and the counties' designation of Stafford as urban reserve is supported by substantial evidence. See Younger, 305 Or. at 360, 752 P.2d 262.
Given that circumstance, we must conclude that LCDC's order is unlawful in substance because LCDC has failed to demonstrate that it adequately reviewed Stafford's urban reserve designation for substantial evidence. Because on remand, LCDC must demonstrate that it properly reviewed Stafford's designation as urban reserve for substantial evidence, we need not address West Linn's other contentions in its second assignment of error.
Under the legal principles described above, 261 Or.App. at 346-49, 323 P.3d at 419-20, we have considered and reject without discussion MLG's fourth assignment of error, contending that LCDC misapplied its substantial evidence standard of review. We also reject without further discussion Graser-Lindsey's substantial evidence-based contentions in her second assignment of error.
We have considered and reject without discussion MLG's second assignment of error and Springville's third assignment of error, contending that LCDC misapplied its substantial evidence standard of review.
As we have explained in detail above, we reject many of petitioners' contentions. Among others, we reject petitioners' contentions pertaining to (1) the validity of the division 27 rules; (2) Metro's authority to designate reserves outside of its service district boundary; (3) compliance with the amount of land standard in OAR 660-027-0040(2); and (4) compliance with particular Statewide Planning Goals. We also uphold nine fundamental legal premises underlying LCDC's review of the submittal that concern Metro and the counties' "consideration" and "application" of the reserve factors and the meaning and application of the best achieves standard in OAR 660-027-0005(2). 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, including in concluding that it has authority to affirm a local government's decision where its findings are inadequate if the evidence "clearly supports" the decision. 261 Or.App. at 340 n. 44, 323 P.3d at 415-16 n. 44. Further-and most significantly-LCDC's order is erroneous in the following three respects:
First, LCDC's order is unlawful in substance to the extent that it approved Washington County's legally impermissible application of the rural reserve factors pertaining to agricultural land. Thus, on remand, LCDC must, in turn, remand Washington County's reserves designation as a whole for reconsideration and remand the submittal to Metro and the counties so that they can ultimately assess whether any new joint designation, in its entirety, satisfies the best achieves standard.
Second, LCDC's order is unlawful in substance to the extent that it concluded that Multnomah County's "consideration" of the factors pertaining to the rural reserve designation of Area 9D was legally sufficient. On remand, LCDC must determine the effect of
Third, LCDC's order is unlawful in substance because LCDC has failed to demonstrate that it adequately reviewed Stafford's urban reserve designation for substantial evidence. On remand, LCDC should meaningfully explain, why — even in light of the evidence that the RTP indicates that, by 2035, almost all of the transportation facilities serving Stafford will be failing — the designation of Stafford as urban reserves is supported by substantial evidence.
Accordingly, because LCDC's order is unlawful in substance in those respects, we reverse and remand the 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").
Reversed and remanded for further action consistent with the principles expressed in this opinion.
Testimony, House Committee on Energy and the Environment, SB 1011, May 21, 2007, Ex C (statement of Randy Tucker).
Audio Recording, House Committee on Energy and the Environment, SB 1011, May 23, 2007, at 1:11:40-1:12:12 (statement of Randy Tucker), https://olis.leg.state.or.us (accessed Feb 6, 2014).
To the extent that the 2011 amendments to ORS 197.633 conflicted with the May 15, 2006, version of the division 25 rules, LCDC applied the statute to its review of the redesignation submittal. In that regard, LCDC specifically explained that, although it was permitted under its rules to consider new evidence and did consider and receive such evidence when reviewing the initial submittal, its review of the redesignation submittal — following the statutory amendments — was confined "to the local record," ORS 197.633(3), and, for that reason, it did not consider new evidence in reviewing that submittal.
The report acknowledged that the workgroup had relied on case law — e.g., Ryland Homes and Residents of Rosemont — decided before LCDC's amendment of Goal 14, which had generally become effective in April 2006. However, the report explained that, "although the amended goal includes fewer factors than the original, the intent and operation of [the] factors was not intended to change under the amended goal."
Audio Recording, Senate Floor Debate, SB 1011, May 10, 2007, at 38:48-39:38, https://olis.leg.state.or.us (accessed Feb 6, 2014).
In its order, LCDC reasoned:
According to Barkers, LCDC relied on that authority in claiming that "the `evidence in the record clearly supports' a finding that Area[s] 9A-D (nearly all of the land in unincorporated Multnomah County) should be a rural reserve."
As LCDC noted, the Land Use Board of Appeals has express statutory authority to affirm a local decision in the absence of adequate findings if the evidence "clearly supports" it. ORS 197.835(11)(b) ("Whenever the findings are defective because of failure to recite adequate facts or legal conclusions or failure to adequately identify the standards or their relation to the facts, but the parties identify relevant evidence in the record which clearly supports the decision or a part of the decision, the board shall affirm the decision or the part of the decision supported by the record and remand the remainder to the local government, with direction indicating appropriate remedial action."). Although LCDC purports to have the same authority as LUBA, LCDC has not pointed to any statute — and we are not aware of one — that grants LCDC equivalent authority. Moreover, LCDC has not otherwise explained the origin of such authority. Thus, we agree with Barkers that LCDC lacks authority to affirm a local decision if evidence in the record "clearly supports" it. Nevertheless, as explained above, LCDC relied on an independently distinct ground to support the designation — viz., that the county had adequately considered the pertinent factors.
(Footnote omitted.)
In its second assignment of error, Barkers raises an issue that it contends might arise on remand — that is, the county could apply the safe harbor provision, OAR 660-027-0060(4), to designate Barkers' property as rural reserve. We decline to address Barkers' contentions pertaining to that issue.
Although West Linn's contentions pertaining to the provision of transportation to Stafford point to both factors, we express no opinion as to the scope of their application.
