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Court of Appeals rules designation was 'unlawful'

by: TIDINGS PHOTO: VERN UYETAKE - Stafford Hamlet board member Tom Lackman was nonplussed by the court's ruling, and believes development in the area is inevitable. Nearly four years after West Linn appealed Metro’s designation of the Stafford area as “urban reserve” land, the Oregon Court of Appeals reversed and remanded the designation in a ruling issued Feb. 20.

Along with 21 other petitioners, the city of West Linn claimed that the Land Conservation and Development Commission had misapplied legal principles in its review of Metro’s designations. The Oregon Court of Appeals ultimately agreed, stating that “LCDC’s order is unlawful in substance in various respects” and that, in particular, the commission failed to explain why Stafford’s designation as urban reserve property was supported by evidence.

According to Metro, urban reserves are lands that lie outside of current growth boundaries and are suitable for urban development in the next 40 to 50 years. Typically, the urban reserve designation is the precursor to being included in the urban growth boundary.

The Stafford area is nearly 4,000 acres, and of that, about 1,000 acres is considered developable. The land is a buffer of rolling hills and woodlands between Lake Oswego, West Linn and Tualatin.

West Linn and Tualatin have long said they do not wish to develop the Stafford area, citing concerns with infrastructure as well as transportation.

“This decision is a huge win for West Linn,” Mayor John Kovash said. “We’ve listened carefully to our residents over the years, and have fought in their best interests on the Stafford issue.”

When Metro made its designations in 2010, West Linn especially took issue with potential plans for the Borland Road area. Part of Stafford nearest West Linn, the Borland area was called “suitable for intense mixed use development” in Metro’s plan, while other areas of Stafford “will have little or no development.”

“The concern has always been the high cost of providing service to the area without the available funds, and the effect on livability without the infrastructure to serve it,” said Jeff Condit, a partner at Miller Nash LLP who represented West Linn during the appeal. “There are two weighty pieces of evidence in the record that suggest the designation of Stafford as urban reserve is not a good idea, at least right now.”

While contending that LCDC misapplied its review for substantial evidence, Condit cited a finding in the Regional Transportation Plan that suggests an increase in development would cause transportation in the Stafford area to function at a “failing” level.

As Condit argued before the Court of Appeals, “Metro’s own analysis conclusively demonstrates that urban development in the Stafford area will not be served at all, let alone adequately or efficiently, by existing or projected transportation investments.”

Moving forward, Condit said the findings will be remanded back to Metro and Clackamas County. Both parties will be tasked with finding new evidence to support Stafford’s designation as urban reserve.

“That will be very difficult to do under the current record,” Condit said. “Because there basically isn’t any evidence. ... In order for Metro and Clackamas County to proceed, they will not only have to make new findings, but also bolster the evidentiary record to show that the area can be served by transportation services.”

As that process moves forward, Condit and the city will also be keeping an eye on Salem, where state legislators agreed Sunday on a bill intended to ratify portions of previously approved urban and rural reserves, and subsequent urban growth boundary expansion based on them.

The bill only applies to Washington County and must be passed by the 2014 Legislature to be final. The session is scheduled to adjourn Wednesday.

“I think it’s now clear that no one’s going to have any certainty for years unless the Legislature does something,” said state Rep. Brian Clem, D-Salem, who is one of the authors of the so-called “grand bargain” deal. “There’s a deal to be had here that will meet the needs of developers, farmers, industry and conservationists.”

Metro President Tom Hughes disagreed with Clem’s assessment, saying the court asked for additional analysis and evidence that can be generated at the local level in a manner of months, not years.

“Metro has dealt with land use remands in the past,” Hughes said. “The Legislature wading into it now only adds to the confusion.”

Hughes was pleased that the court upheld the concept of the reserves, even though it did not approve all of the designations.

Metro is responsible for managing the Portland region’s urban growth boundary. Under state land use law, every Oregon city must have an urban growth boundary plan that includes at least a 20-year supply of buildable land. Because there are so many cities in the region, Metro was handed the duties of coordinating and expanding the area’s growth boundary.

As of Monday, Condit had yet to read the proposed legislative bill, but he said that limiting the agreement to Washington County would be a good sign for West Linn.

“That removes the dispute over Washington County, which has been an issue for us,” Condit said. “My concern was that in resolving the Washington County issue, they might try to resolve issues in other counties as well, and snatch defeat out of the jaws of victory.”

If the court’s ruling was seen as a victory for West Linn, some Stafford residents remain convinced that development is inevitable.

“Metro is bound and determined to push this through, so it will happen,” Stafford Hamlet board member Tom Lackman said. “The residents here know it too. There’s a few hanging on, hoping it will never happen. But that’s unreasonable.”

Lackman, for his part, is at the forefront of an initiative to bring a new “Stafford Trails” system in as part of the area’s development.

“We would like planned development that reflects compromises on everyone’s part, and has plenty of open space” Lackman said.

— Reporter Jim Redden contributed to this story.

By Patrick Malee
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