Marks v. L.C.D.C.

The IGAs are likely to have a significant impact on land use in Stafford and the surrounding area within the meaning of the significant impact test due to the control over expansion of the UGB and timing of concept planning. See, e.g., Hemstreet v. Seaside Improvement Commission, 93 Or App 73, 75, 761 P2d 533 (1988) (articulating significant impact test).

Petitioner seeks judicial review of the Land Conservation and Development Commission's ("L.C.D.C.") order that determined Intergovernmental Agreements ("IGAs") do not qualify as land use decisions under the "significant impact test." "Metro," is a metropolitan service district that includes land in Clackamas, Multnomah, and Washington counties. ORS 197.015(14); ORS 268.020(3). In 2010, Metro designated "the Stafford area" as an urban reserve. Upon judicial review the Court concluded the order did not demonstrate adequate review of Stafford's urban designation with substantial evidence, and therefore was unlawful in substance. Barkers Five, LLC v. LCDC, 261 Or App 259, 275, 362, 323 P3d 368 (2014). After remand, Metro entered into an IGA with Clackamas County and the three cities of West Linn, Lake Oswego, and Tualatin (the "5-Party IGA"), and the three cities entered into another agreement as to the Stafford area (the "3-Party IGA"). Petitioner filed a petition for an enforcement order with LCDC alleging Metro violated its Regional Framework Plan ("RFP"), that requires Metro to include a "concept plan" as part of its functional plans and that the 3-party IGA, which put off the concept plan for at least 10 years, prevented consideration of urban development in Stafford. The L.C.D.C. hearings officer determined that the 5-Party IGA and the 3-Party IGA were land use decisions under the significant impacts test, and on the merits determined that neither the 5-Party IGA nor the 3-Party IGA violated the RFP. There are two tests to determine whether a decision is a "land use decision:" (1) ORS 197.015(10), and (2) the significant impact test, that governs decisions not expressly covered in a land use norm. A decision which has a “significant impact on present or future land use” satisfies the test and is a land use decision. Hemstreet v. Seaside Improvement Commission, 93 Or App 73, 75, 761 P2d 533 (1988). However, decisions that "have potential impact,” “would affect,” or “would have any impact” on current or future land uses, do not necessarily qualify. Billington v. Polk County, 299 Or 471, 479, 703 P2d 232 (1985). Here, petitioner's single assignment of error alleged that L.C.D.C. erred in determining the IGAs do not qualify as land use decisions under the significant impact test. Petitioner argued that L.C.D.C. did not consider the full impact of the IGAs on future land use. The Court held that, under the circumstances, IGAs are “land use decisions” under the significant impact test. The Court reasoned that future land uses are significantly impacted because (1) the 3-Party IGA prevents the Cities from “promot[ing] or support[ing] any expansion of the UGB into any part of Stafford," and (2) the 5-party IGA will "also likely" have a significant impact because it controls the timing of "concept planning." Reversed and remanded.