Barkers Five, LLC v. LCDC

LCDC order acknowledging designation of urban and rural reserves in the Metro area was unlawful in substance because it (1) approved Washington County’s misapplication of rural reserve factors, (2) incorrectly found Multnomah County’s consideration of rural reserve factors sufficient, and (3) failed to review designation of Stafford as urban reserve for substantial evidence.

In August 2012, the Land Conservation and Development Commission (LCDC) issued an order acknowledging a submission designating urban and rural reserves in the Metro area. On review, twenty-two petitioners contended LCDC erred in application of the principles which govern this designation. The Court began by rejecting, without discussion, two systemic contentions: that the rules governing the decision (OAR 660-027) were invalid, and that Metro lacked the authority to designate reserves outside of its boundaries. The Court then rejected two contentions that the order was unlawful in substance: one claim that the amount of land designated exceeded the statutory cap, and multiple claims that LCDC erred in application of statewide planning goals. Next, the Court addressed challenges to the LCDC “consideration” of urban and rural reserve factors, finding that LCDC’s construction, which required these to be evaluated, applied, and balanced as a whole in the same manner as Goal 14 boundary location factors, was correct. The Court upheld LCDC’s interpretation of its own rules, detailing five premises which it found plausible and their interpretation of the “best achieves” standard of OAR 660-027-0005(2), holding this was also valid by identifying four premises on which LCDC based its interpretation. Looking to individual challenges, the Court agreed that LCDC erred in approving Washington County’s misapplied rural reserve factors, disagreed with a similar contention regarding Clackamas County, and agreed with Barkers’ contention that Multnomah County had inadequately considered rural reserve factors. Lastly, the Court reviewed challenges to the order which contended LCDC had not supported its decision by “substantial evidence.” The Court upheld this challenge with respect to the designation of the Stafford area as an urban reserve. The Court concluded LCDC had erred on four points in the order, three of those causing the order to be unlawful in substance. Reversed and remanded.