Homebuilders Ass'n v. Metro

57 P.3d 204, 184 Or. App. 663, 2002 Ore. App. LEXIS 1724
CourtCourt of Appeals of Oregon
DecidedNovember 4, 2002
Docket2001-197; A118382
StatusPublished

This text of 57 P.3d 204 (Homebuilders Ass'n v. Metro) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Homebuilders Ass'n v. Metro, 57 P.3d 204, 184 Or. App. 663, 2002 Ore. App. LEXIS 1724 (Or. Ct. App. 2002).

Opinion

DEITS, C. J.

Petitioner seeks review of a Land Use Board of Appeals (LUBA) final opinion and order affirming a Metropolitan Service District (Metro) ordinance amending its Regional Framework Plan (RFP) and the Metro Code (MC). The amended provisions specify the available processes for changing the Metro Urban Growth Boundary (UGB). The effect of the amendments is that only Metro may initiate a change in the UGB to accommodate housing needs. Petitioner challenges LUBA’s conclusion that the new enactments do not violate certain constitutional, statutory, and regulatory requirements. We affirm.

The basic facts and statement of the applicable statutory law are not in dispute. Metro is a regional government that is responsible for the urban growth boundary for a number of cities, including Portland. As a land use planning jurisdiction, Metro must submit its RFP to the Land Conservation and Development Commission (LCDC) for review for compliance with Statewide Land Use Planning Goals. ORS 197.274. Goal compliance is an ongoing responsibility, and Metro also must submit its plan and implementing ordinances to LCDC for periodic review. Periodic review is governed by ORS 197.628 to 197.650.

In 1995, the legislature adopted ORS 197.296.1 Or Laws 1995, ch 547, § 3. That statute provides that, at periodic [666]*666review under ORS 197.628 to 197.650 or at any other legislative review of a comprehensive plan or regional plan that concerns the UGB and affects buildable lands available for residential use, the comprehensive or regional plan must provide sufficient buildable lands within the UGB to accommodate estimated housing needs for 20 years.

In 1997, the legislature adopted ORS 197.299. Or Laws 1997, ch 763, § 2. That statute imposes additional requirements on Metro. Under ORS 197.299,2 Metro must undertake the evaluation called for in ORS 197.296 no later than January 1, 1998, and reconduct that analysis at least every five years. In addition, ORS 197.301 requires that “at least” once every two years, Metro must report to LCDC on the “performance measures” taken to consider facts relevant to housing, vacant land, and related matters. Further, Metro must take “corrective action” to increase the supply of build-able land available for housing between the five-year periods if its previous actions to increase land supply have not been effective. ORS 197.302. In sum, the statutes call upon Metro [667]*667to continually monitor the supply of buildable land for housing and other needs and take action as needed to ensure a 20-year supply of such land within the UGB.

Metro adopted the ordinance that is challenged here, Ordinance 01-929A, to implement the requirement of ORS 197.299 that Metro inventory and analyze its supply of land every five years. Ordinance 01-929A amended RFP section 1.9.3 in ways discussed below. 184 Or App at 668. The preamble to the ordinance explains its purpose: namely, that Metro wants to ensure the availability of a procedure to amend the UGB between the required five-year reviews in order to address unanticipated needs that cannot wait until the next review. The ordinance adds that it takes effect immediately, “because processing and reviewing major amendments and locational adjustments under the current code is drawing staff and Council resources away from Metro’s legislative review of the UGB, which Metro must complete to meet the requirements of ORS 197.299 and periodic review before LCDC.” In other words, the change was made because the existing scheme inhibited Metro’s ability to fulfill its statutory responsibilities relating to the establishment and maintenance of the UGB.

Ordinance 01-929A makes significant changes to available procedures for making adjustments to the UGB. LUBA accurately describes this change:

“Prior to the challenged decision, Metro’s code authorized five ways in which the Metro UGB might be amended: a legislative process initiated by Metro and four distinct types of quasi-judicial procedures, initiated by cities, counties, special districts or property owners. Quasi-judicial amendments included, in relevant part, major amendments and locational adjustments. Under former MC 3.01.033, applications for quasi-judicial major or locational amendments could only be filed between February 1 and March 15 each year. Under former MC 3.01.030, nothing prohibited a local government, special district or property owner from filing an application for a quasi-judicial UGB amendment in order to address housing needs.”

(Footnote omitted.)

[668]*668Ordinance 01-929A does not change the legislative process for amending the UGB. MC 3.01.015. However, as LUBA noted, only two quasi-judicial processes for amending the UGB remain, and neither allows local governments, special districts, or property owners to seek a UGB amendment to satisfy housing needs. Section 1.9.3 of the RFP now provides that a quasi-judicial process may be employed to add land to the UGB by a local government, special district, or property owner but only for certain nonhousing needs, specifically,

“to add land to the UGB for public facilities, public schools, natural areas and those nonhousing needs that (a) were not accommodated in the most recent five-year analysis of land supply pursuant to ORS 197.299(1) and (b) must be addressed prior to the next five-year analysis.”

RFP § 1.9.3G).3

A quasi-judicial process may also be employed for “minor adjustments” to the UGB, but the minor adjustments permitted are limited to “siting public facility lines and roads, for land trades and to make the UGB coterminous with nearby property lines or natural or built features in order to make the UGB function more efficiently and effectively.” RFP § 1.9.3(2).4 As LUBA concluded, “[t]he net effect of* * * amendments is that the only vehicle to amend the UGB to address housing needs under Metro’s code is by means of a legislative amendment initiated by Metro, pursuant to MC 3.01.015.”

[669]

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Bluebook (online)
57 P.3d 204, 184 Or. App. 663, 2002 Ore. App. LEXIS 1724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/homebuilders-assn-v-metro-orctapp-2002.