DLCD Staff Report on
Periodic Review Objections

Oregon

April 4, 2002

LCDC issue an order remanding portions of Work Tasks 1, 2, 3, 4 and 5 adopted as part of periodic review in order to comply with Statewide Planning Goals 2 and 14.

LCDC direct DLCD to issue an order establishing a submittal date to satisfy the recommended requirements described in this report. (see the conclusion at the end of the report).

This referral relates to the City of North Plains ("City") Periodic Review Work Tasks 1, 2, 3, 4, and 5 and 8 and compliance with the standards of the Statewide Planning Goals and relevant portions or Oregon Revised Statutes 197 involving expansion of urban growth boundaries (UGB).

A central outcome of the Work Tasks and Findings is the City’s projection of a population of 4,000 for the year 2021, (an increase of 250%) and a decision to expand the North Plains UGB by 164 acres in two areas: to the north of the existing city limits and to the east. Both areas are currently zoned EFU.

Work Task 1, Comprehensive Plan and North Plains Neighbor City Study Convergence, ties in previous planning efforts to the current periodic review process. It includes projected demands for housing and employment needs, and coordination under Goal 2

Work Task 3: Land Use Inventory/Needs Analysis and North Plains Neighbor City Study Analysis, includes the land use inventory; public facilities assessment; projected housing needs; and Goals 9 (Economic Development) and 10 (Housing) requirements.

Work Task 4 involves the issue of the Direction of Growth, if expansion of the UGB is justified. It also directs the City to delineate a mixed-use downtown core area with consideration of the Glencoe corridor; and to generate policies for redevelopment and infill. In addition, the final three subtasks address needed housing units, appropriate areas in which the city could accommodate the projected population and employment needs; compliance with the Goal 2 exception process; and ORS 197.298.

Work Task 5, Urban Growth Boundary Expansion Needs, calls for the development of policies to guide development of the area identified in Work Product 4 for the direction of growth consistent with an overall residential density of 8.4 units per net acre and adoption of UGB amendments, if necessary, to increase employment and population capacity.

North Plains is a city of 1605 people (2000 census) in Washington County, adjacent to State Highway 26. In the nineties, the City experienced a vigorous growth rate and currently development pressure for residential purposes is building. However, the census figure for the year 2000 is 9% below the year 1999 state’s population estimate of 1755. The City revised its earlier population projection, which had used 1755 estimate as the base year, by then using 1605 as the starting point.

The city's comprehensive plan and land use regulations were acknowledged to be in compliance with the Statewide Planning Goals on January 27, 1983. The first periodic review terminated in 1988. This is the city's second periodic review. The Department of Land Conservation and Development (the department) sent a notice to begin North Plains periodic review on January 31, 1996. The city submitted a proposed and revised periodic review work program and the department issued a final work program approval order on June 13, 2001.

After an unsuccessful bid (LUBA remand) to expand the City’s UGB in 1993 by 300 acres for commercial development, the City in conjunction with DLCD, ODOT, Metro, Washington County and others undertook an extensive review of the long term land use needs to come to a common understanding of those needs. A Transportation and Growth Management (TGM) grant funded the City of North Plains Neighbor City Study ("TGM Study") in 1996. The recommendations provided as a part of that study provided the necessary building blocks as the City began the Periodic Review process in 1998.

One outcome of the TGM Study is a recommendation for a UGB amendment of approximately 100 total acres to the North and East of the City, as well as certain policy objectives for the existing City, including the recommendation that the City increase density within the existing UGB. Exhibit 1 is a summary of other recommendation of the TGM Study, as found in a portion of the City’s Findings (see pages 2216 through 2219)

Department staff urged the city staff and their planning consultants to maximize the recommendations and policy framework of the TGM Study, for several of reasons.

First, the Study provided a superior framework for the City’s periodic review work, because it incorporated a well-defined Growth Concept. Second, the department believed that, given the rather contentious and complex process that lead to the Study’s conclusions, it would be prudent to rely on as much previous planning work as is reasonable.

We have received a total of 33 individual objections from two objectors:

1. 1000 Friends of North Plains and Citizen Participation Organization #8 (CPO 8), (Friends) whose objections address Tasks 1 though 3, inclusive.
2. Specht Development, Inc. (Specht), who has filed objections to all five of the work tasks.
3. 1000 Friends of Oregon on behalf of Friends and the Farm Bureau of Washington County.

To characterize the interests and nature of the objection and objectors in general terms, Friends support compact urban form, have methodological concerns about the population growth forecast, believe additional residential capacity can be found in the existing city and concern that the City has overstated its need to grow. Specht has interests in the properties to the south of the City and State Highway 26, which are exception lands. Their objections are based on their belief that the City has failed to meet Goal 14 factors for UGB expansion and also failed to follow the priorities of inclusion of lands under the statute (ORS197.298). Their position is that the City must expand unto the exception lands first. The City is not interested in any UGB expansion across the highway, citing reasons of livability.

The complete set of letters and objections are found in Attachment A of this staff report.

Under the rules for the submittal of objections, OAR 660-025-0140 states that an objection must be in writing and: (a) be received within 21 days from the date the noticed was mailed by the local government; (b) be clearly identify an alleged deficiency in the work task; (c) suggest specific revisions that would resolve the objection; and (d) demonstrate that the objecting party participated at the local level orally or in writing during the local process.

On June 5, 2001, the City issued a notice that addressed Work Tasks 1 and 2. On June 25, the Department received written objections from Stoel Rives, Attorneys, representing Specht. On June 26, the Department received objections from 1000 Friends of North Plains and CPO 8.

On November 1, 2001, the City mailed notices of the adoption of Ordinance No.288, which addressed Work Tasks 3, 4, and 5, and adopted comprehensive plan amendments which incorporated Work Tasks 1 and 2. The Department received objections on November 21 in writing from Stoel Rives, representing Specht and Bob Jossy, landowner of properties in the South exception area. Also on November 21, the agency received a letter from 1000 Friends of Oregon, who objected on behalf of Friends, and the Farm Bureau.

The objections by Specht were received within 21 days from both dates notice was mailed by the City. The objection by Friends for Work Tasks 1, 2, and 3 were also received in a timely way under the rule.

The letter of objection from 1000 Friends of Oregon/Farm Bureau received on November 21, 2001, although filed in a timely manner for Work Tasks 3, 4 and 5, fails to meet the criteria for filing a valid objection because there is no evidence on the record that the objection meets criteria (c) and (d), referenced in the first paragraph of this section.

In summary, the Department finds the above two sets of objections (Specht, Friends) meet the test for filing a valid objection under OAR 660-025-0140.

The valid objections are numbered in this staff report, e.g., (#1) for reference purposes.

OAR 660-025-0150(1)(c) provides that the director may refer a periodic review work task to the Commission for review and action.

Following a referral, OAR 660-025-0160(7) provides that the Commission shall issue an order, which does one or more of the following:

(a) Approves the work task;

(b) Remands the work task to the local government, including a date for resubmittal;

As stated above, the department is recommending that the Commission issue an order remanding certain portions of the work tasks under Subsection (b) and establish a new work schedule to address the remand under Subsection (e).

The Record for this Proceeding includes the submittals of the first five work tasks; the local record of the City’s decisions, the valid objections and other notices received by the Department from the City.

The specific purpose of Task 1 is to analyze and incorporate the TGM Study’s recommendations in the city’s comprehensive plan, as necessary, including the North Plains 2040 Growth Management Concept from the Study. The idea is to add goals and policies to the City’s Comprehensive Plan.

Both objectors filed objections to Task 1, one from each.

The Specht objection (#1), in two parts, states that: (a) no reconciliation of TGM Study and Plan provisions has occurred; and (b) that the Task incorporates TGM Study data, rather than policies. They then specifically identify 5 polices in Work Task 1 that should be eliminated.

The Department partially agrees with a). The City drafted Work Task 1 in 2000. The draft was prepared without benefit of the planning work contained in subsequent tasks. On its face, the proposed plan amendments and supplemental comp plan policies are very general and not specific with regard to how the TGM Study’s 2040 Growth Concept for North Plains would be implemented. The City should be more specific with the policies developed for the convergence document and the Department recommends that Work Task 1 be remanded for additional specific policy work. Concepts for these policies are found in the findings pgs. 2-10 and throughout the work tasks completed later (i.e., Work Tasks 3,4,5). Better reconciliation of study and plan provisions will occur in conjunction with more specific policies as part of the remand.

The Department disagrees with b). There is merit to the City’s use of data from the Study as a factual basis, as well as its use as general policy guidance.

The Friends objection (#2) faults the Task because a proposed Plan Policy encourages a minimum of 25% of the total new housing types be attached housing, whereas the TGM Study called for a minimum of 50% of the total new housing types to be attached housing.

Department response: This objection is discussed below under the issue heading of "accommodation of growth" below, and is also relevant to our response to Friends objection #12.

Update Study Analysis of demographic data and projected demands for housing and employment needs for the next 20 years in keeping with the Neighbor City Study. Coordinate, as necessary, with Washington County and METRO on such projects.

Specht: (#14). Data from more recent study (2000) authorized by the objector indicates that "a reasonable projection of the City’s 2020 jobs/housing ratio is 1.5 jobs per household, not 1.2" as shown in the Plan and Findings; in contrast to a 1996 study relied upon by the City.

Department response: The Department disagrees with their primary assertion that 1.5 jobs per household is the most accurate forecast tool. The City used reasonable data and assumptions to derive a 1.2 ratio; therefore, made a reasonable policy choice in using the ratio to forecast the number of new City jobs.

Friends: They submitted eleven objections to Work Task 2. Two of them are primary:

• Adopted population projections do not meet requirements of the law and lack an adequate factual basis. (#3)
• Because the work product 2 and the Findings contain significant errors that misrepresent the facts, the potential for population growth is overstated in the City of North Plains, in violation of Statewide Planning Goals 2 and 14. (#10)

The remaining nine are sub-objections in support of these. They challenge underlying technical assumptions about the population and employment forecast, land needs outside the existing city.

Friends (sub-objection) #4:

Population projections are not based on the most accurate figures available to the City.

Specifically: That the population baseline of 1755 for 1999 seriously overstates actual population as found in the year 2000 census.

The Department disagrees. The objection relates to a previous draft. The 2001 draft of Work Task 2 does use the 2000 census figure of 1605. Hence the objection is moot.

Friends (sub-objection) #5:

Population projections are not based on the State Office of Economic Analysis (OEA) projections for Washington County. Specifically, using unrefined TGM Study population projections conflicts with provisions of Executive Order 97-22.

The Department disagrees. It has never been the position of the Department that data used for population projections must come from OEA. It is more important that the forecast be coordinated with the County and that the County agree that some portion of the overall county population growth be allocated to North Plains.

Friends (sub-objection) # 6:

The Findings and Work Task 2 erroneously assume that the TGM Study provided a 20 year growth rate independent of any specific number or year. Specifically: the TGM Study growth rate was based on a planning period from 1995 to 2015. Study Participant Washington County agreed only to a population projection of 3000 for 2015 and nothing beyond. TGM Study documents indicated that study decisions applied only to the Study and nothing beyond.

The Department disagrees. The objection was likely drafted prior to September 2000.

As stated above, the coordination requirements between North Plains and Washington County are of paramount importance for a population forecast as required by statute.

Coordination efforts span a tine period from February to the end of April 2000. The record contains a series of letters between Washington County and the City regarding population coordination. See pages 692, and pgs.676 through 686. Further, in September, the City received a letter from the Director of Washington County Department of Land Use and Transportation "concur(ring with a 4.5% growth rate for the current periodic review work. This letter (9/19/200, pg 1770 of the Record, signed by John Rosenberger) represents the culmination of the correspondence from Washington County.

Based on that evidence, the population forecast of 4,000 people for the City is justified.

Friends (sub-Objection) # 7: 8, 9 and 10

#7: Work Task 2 and Findings overstate the rate of growth during the 1990s by arbitrarily omitting the data for the year between July of 1989 and July 1990. Specifically, overstated growth rates do not constitute an adequate factual basis, as required by Goal 2 and Goal 14, factor 1.

(sub-Objection) # 8: TGM Study’s projections were partially justified by invalid assumptions about the Study Area. Supporting documentation [Traffic Analysis Zone (TAZ data)] is incomplete and misinterpreted. Specifically, an error was made in using one incorrect (TAZs) and assuming all growth in TAZ 270 will occur in the City.

(sub-Objection) # 9: Several flaws exist in the process by which the population projections contained in work task 2 were derived. Specifically, the work task cites erroneously calculated TAZ data. It then uses the miscalculated data as a basis for dismissing it. More accurate forecasting is gained by correcting errors and using a METRO-derived forecast for the correct TAZs.

(sub-Objection) # 10

Specifically, the Findings cite the Land Use Board of Appeals Case, DLCD vs. Douglas County, 37Or LUBA (LUBA no.98-119) in support of the City’s decision to base population projections on the recent 10 year trend. This citation does not apply to population projections, but cite comes from section in the Decision re: employment projections. Further, more accurate forecast is obtained by using the ratio of the actual North Plains’ population estimates compared to Washington County’s actual population estimates.

The Department disagrees. What is most determinative of the validity of a population forecast is that the City and the County have fulfilled their respective responsibility for coordination under the statute, as opposed to the methodological nuances. We find that these objections do not render the coordinated forecast of 4000 people invalid. For example, a ratio of city to county population is simply a comparative statistic, there is no rule that requires the city to use a comparison statistic as the basis for its population forecast.

Friends (sub-Objection) # 11:

The adopted growth rate, based on employment growth that is planned to occur inside the Metro UGB violates Goal 14. Specifically, the City makes the case that a higher growth rate is appropriate because of the city's location proximate to Washington County's "silicon forest". The City errs when it fails to recognize that these jobs and the attendant growth in population created fall under METRO jurisdiction.

We disagree. In the narrowest sense, it is Washington County's responsibility, under ORS 195.036, to coordinate the city's population forecast with the overall forecast for the county and the region. The city has coordinated with the county through the Neighbor Cities' Study and the agreement on a future growth rate (see above). Further coordination with the county will occur later in periodic review work program when the city asks Washington County to take final action to adopt the city's UGB amendment.

In a larger sense, there is nothing which prevents the city and county from considering North Plains' place in the region. While the city recognizes that some of its future residents will likely be employed in neighboring communities, the city has provided adequate land for commercial and industrial development. Part of the city's consideration of "livability" is that the city needs a larger population base to support a viable downtown and to improve and maintain the level of public services. At some point in the future (beyond the 2020 forecast), the need to protect farm land in Washington County and the need for an efficient pattern of growth in the region may argue for a slower rate of growth for cities such as North Plains. However, at present, the city's population forecast and land needs are very small in comparison to the region as a whole and as explained above, the city's population forecast is valid

Friends (sub-Objection) #12:

The City erred when it adopted a household size of 2.5 persons.

Specifically, the City failed to use the more recent and specific assumption of household size developed by METRO (in 1999), which projects a household size of 2.77 persons for the City of North Plains in 2020.

The Department disagrees. The City’s use of its selected household size is appropriate based on other data that show a decreasing household size over time as demographics change. Further, North Plains is not under METRO’s jurisdiction, and is not obligated to use METRO’s household size statistic. However, our agreement is balanced with our response to another of the Friends objections (# 18), which is related. If the City’s does not agree to achieving a 50/50% split between single and multifamily housing for new development, then a household size of 2.75 is appropriate, in light of a policy choice of 75% of new housing to be single family.

Friends (sub-Objection) # 13:

a) Elements of work task 2 were adopted without adequate specific findings in support of its conclusions.

b) Specifically, the Findings cite data about aging population in the Metro area, without reference to data specific to the City.

The Department agrees with a) in general terms, but not with the conclusion of b)

The City will need to re-adopt findings in support of their adoption of Work Task 2. The Findings that are found in the record (starting on pg. 627 of Record) were adopted prior to the official work program approval in 2001. The same is true for Work Task 1.

These three Work Tasks are so inter-related that the objections to these will be grouped together under several themes and as a way to sort through key. Some of these themes relate to the need and location factors of Goal 14.

The City makes findings that use the concept of livability as a basis for a policy choice to grow in certain directions, East and North, away from placing urban development in the exception lands to the South, crossing State Highway 26. The City determined that it would have a "livability problem" if the City added land to straddle the highway, creating what they term as "South Plains".

Goal 14, Urbanization, states that changes to urban growth boundaries shall be based on seven factors; the first two are associated with need, the other five with location.

Under Factors 1 and 2 of Goal 14, livability is included as a consideration for determining need, along with housing and employment opportunities. Such "need" factors, provide:

The City argues that this consideration allows the City broad discretion to "manage its own destiny to enable it to plan to avoid the freeway, and focus development toward the central and existing City and its amenities ... rather than to be forced to make the freeway the City’s centerpiece." (Findings, page 10).

In several places in the Findings, the City also includes other arguments for a growing North Plains a vision deemed "livable". The following is a sample of such findings:

• Therefore, in evaluating alternative areas, important factors for consideration included the potential for integration with the existing city street system and the eventual town center, minimal impacts to natural resource areas as well as the opportunity to integrate natural features into the livable City, the proximity to schools and the potential for economic and efficient serviceability with urban infrastructure. Moreover, areas promoting a sense of place by providing residential neighborhoods near existing and future employment centers and in proximity to the eventual town center were included in identifying the City’s needs for livability under Goal 14.

• … providing the (residential) 20-year land supply in a pedestrian scale, well connected community, supportive of the existing downtown.

• … pedestrian and bicycle travel between the South and North areas would be inconvenient because of out-of-direction travel

• The freeway physically disconnects the North and South from one another and, importantly, disconnects the South from the town center that exists to the North.

• … expanding across the freeway would create a 2021 North Plains with a stagnant downtown, transportation problems and a poor sense of community.

• … support for the compact community concept, that celebrates the existing town

• The City’s new downtown revitalization policies would be next to impossible to implement if the downtown were not allowed to play the focus role the City envisions. Accordingly, the freeway poses a serious livability problem that the City wishes to overcome over the 20 year planning horizon.

• … efficiency (gained) to extend urban development into areas where development has already begun, some urban services already exists, and additional services are planned. Here, the South freeway exception area while developed, does not have urban services such as water and sewer and is already developed with land use patterns that are contrary to the urban form which marks the City’s livability needs described in the TGM study and herein.

Department response:

The agency is not aware of any other time when a City has used the concept of "livability" as it is defined by the City and as a basis to avoid crossing a freeway as a need factor under Goal 14. Nor is the Department aware of a pre-established definition of "livability" that could be used by the agency or the Commission as guidance in reviewing the Periodic Review work tasks as presented by the City. The situation here is fairly unique, because of the policy choices to be made in light of a state highway being one of the City’s boundaries.

Further, the definition of livability is in the eye of the beholder. Objector Specht holds another view of what livability could mean for North Plains, including new development in a closer proximity to the downtown core, with a ped/bike bridge providing for access and safety. Another reasonable person may not recognize what one person may consider as a livable situation. What livability means for North Plains is so subjective it is hard to make a determination whom may be "right".

Therefore, for these reasons, the Department finds itself on new ground. The issue is in essence a policy call. Be that as it may, the Department is not deterred from addressing the issue.

The Department believes that the Commission has the authority to allow the arguments put forth by the City for its livable future as meeting Factors 1 and 2 of Goal 14. The Department agrees with the City that it may make its own choice about community form, and we recognize the special uniqueness of the decisions about what direction of growth to pursue, given the highway separation and the exception lands issues. The City’s choice provides discernable weight to an otherwise subjective decision with regard to whether this vision of livability meets Factor 2.

The Department recommends that the Commission make a policy choice to allow the City’s to grow in a direction that avoids going to the south exception lands. The agency’s recommendation is based on the City’s findings under Factor 2, Goal 14 (see Findings, internal pages 2 through 10; pgs. 2112 through 2167, Record). The City’s findings are exhaustive and broadly based, giving multiple reasons in establishing their argument and vision for livability in North Plains (see bulleted points, above). The findings include an evaluation of the probable positive and negative livability impacts that might occur if the UGB is expanded to in one direction or another. The City goes further to explain why the positive impacts growing east and north outweigh the negative impacts. (see LUBA No. 89-036, 1000 Friends of Oregon vs. METRO and Zucker et. al.) Even though the south exception area may be adjacent to the UGB under the statute’s definition of adjacency [see ORS 197.298(1)(b)], the south exception lands nevertheless are inadequate to accommodate the unique livability "need" as identified by the City.

The Department, however, rejects the argument that "livability" is a " need" being a "specific type" use under ORS 197.298(3)(a), or that such need cannot be "reasonably accommodated" on the potential South expansion area.

Friends Objection # 19:

Object to adoption of Industrial Land Need, as referenced on pg. 7 of the Findings.

Specifically, the City erred when it added 6 acres for transit facilities, when in fact, such a land need was recognized under the TGM Study as an "Institutional Use". Adding another 6 acres for this purpose is redundant and is an inefficient use of land.

We disagree. The City has not identified any further need for industrial land (except for 0.02 gross acres in the City’s Table 4, which is moot, since the actual need in net acres is zero).

Friends Objection #20:

Object to the adopted Parks Need, as referenced on pg.8 of the Findings.

Specifically, the Findings do not address specifically how many acres of the 57 acres of floodplain could be used to meet the need for additional parks. 15.64 acres mentioned in the City’s findings for greenways and trails could be meet by using floodplain areas. The Findings make no reference to the possibility of co-locating one park with a new school. They allege that this is not consistent with Goal 14’s requirement for "maximum efficiency of land uses".

Department response: The Department partially agrees. The City only indicates that some 5 acres+/- associated with the greenway (floodway) are dedicated to open space/parks in the expansion area. The City is looking to the expansion area to solve all park needs, for the existing and future population. Surely there should be a greater degree of use of the greenway inside the City for parks needs, perhaps with active recreational uses.

The City has set a standard for neighborhood parks that would result in a neighborhood park need of 8 acres to serve a future population of 4,000. The City has set aside some 30-31 acres in the expansion area, including one 20 acre municipal park. The TGM Study called for 23 acres. Apparently in response to the objection, the City has a policy to explore the "opportunity to co-locate one (neighborhood) park with a new elementary school". The City work task should be remanded to reduce overall park need in the expansion area by including the application of approximately 10 more acres of greenway to overall park need within the existing city limits to meet overall future park need. The Findings must be revised to address how some of the park needs can be accommodated within the existing city limits

Friends Objection #21:

Object to the adopted "Other Institutional Needs" as referenced on pg. 9 of the Findings.

Specifically, the City errs when it indicates a need for 10 net additional acres for the year 2020, and another 10 acres for the year 2040, for a total of 20. By adding these together, the land need is artificially inflated. Not consistent with table in TGM Study "Land Needs Outside of Current City Limits" on pg. 23 of the TGM Study.

Department response: The Department agrees. The City has added land that could be developed in an institutional use beyond the current planning period. The City shows 10 acres for "institutional" uses and 10 acres for "schools" in the expansion area. Presumably, a place of worship could be accommodated on the institutional use land. The addition of another 10 acres for such use (and it is questionable if a place of worship needs such an area, unless it consumes acres of parking) is more appropriately accomplished at the City's next periodic review, when there is more of a population base and hence, a larger "need" for such a use.

Specht: Objection #27:

The City errs in its conclusion that future urban services cannot be "reasonably provided" to the south exception area that are precluded due to topographical or other physical constraints. Specifically, the Findings regarding ORS 197.298(3)(b) are conclusionary, fail to cite supporting evidence in the record or to discuss opposing evidence; and thus inadequate to support the City's conclusion that future urban services cannot be reasonably be provided to the south exception area due to physical constraints.

Department response: This objection is moot because, as described above, the city has determined that south exception lands are inadequate to accommodate the amount of land needed and under the priority scheme of ORS 197.298(1), the city is permitted to use lands of "lower priority."

Specht: Objection #28:

The City's Goal 14 Findings are not supported by Substantial Evidence in the Record as a whole. This objection is further argued in Objections Numbers 29 through 33, below.

Department response: We disagree for the reasons set forth under the specific objections, below.

Specht: (sub-objection) #29:

The Goal 14, Factor 3 Public Facilities and Services Cost Estimates are erroneous and incomplete. Specifically, the existing water and sanitary sewer systems which serve North Plains are inadequate to serve the needs of the City residents and business during the current planning horizon to year 2021. The City errs in not including the cost of a new water source in estimating the total cost of providing public services to the UGB growth alternatives, since the City has identified water service costs as the primary public facilities cost difference among the UGB expansion alternatives. Further, because infill and additional water service costs are not included in the City's analysis of needed public improvements to serve future needs, cost estimates are erroneous. The city should not have included the cost of a looped waterline in the south exception area. The City also errs when it does not include costs of providing facilities across McKay Creek to the East expansion area.

Department response: We disagree. The city has addressed goal 14, factor 3 (North Plains Direction of Growth, pages 10-43). The city set out the facts which are believed and relied upon and explained how those facts lead to the city's decision. The lengthy findings show that the city analyzed the evidence presented and made a reasonable choice when confronted with conflicting expert studies regarding the orderly and economic provision for public facilities and services.

The objections raised by Specht at best highlight that there is conflicting evidence regarding the provision of water. The city made adequate findings that explained why it chose between conflicting evidence.

The city identifies needed water system improvements and three options for future water sources. The city then compares and analyzes the costs of each potential direction of growth that includes all capital system improvements required to service each expansion area. On page 28, the city finds that based on its Water System Master Plan:

The city establishes a valid public safety reason (fire fighting flows) for preferring looped water systems. Also, the objection does not establish that it would be necessary to cross McKay Creek; without establishing that need, the assertion that the city failed to include such costs provides no basis for remand.

Issue 4 Maximum Efficiency of Land Uses (Factor 4 of Goal 14)

Factor 4 of the Urbanization goal: "Maximum Efficiency of Land Uses within and on the fringe of the existing urban area"

Friends Objection 2: Work Task #1 Summary (Executive Summary item #14) "The City of North Plains will expand the availability of attached housing and shall encourage a minimum of 25% of the total new housing types be attached housing. The TGM Study central conclusion was a rate of 50% attached housing. Further, the City did not adopt any specific findings in support of a change to only 25%.

Department response: We agree that the City did not present any findings as to why they made the policy choice of 25% multifamily vs. the anticipated 50% which would further the ability of the City to meet an overall density goal of 8.4% net. The purpose of what was termed "balanced density" in the Study was to increase the existing density (5.5 units/net acre) "while providing additional housing capacity through zone changes for key sites". This relates to the larger issue of whether the City should make additional attempts to provide zoning to increase the overall housing density. However, if the City were to choose to provide only 25% of new housing as attached, then the City should use a larger household size than the present one of 2.5. See Friends objection #12.

On balance, we recommend that the City adopt revise policies and goals to achieve an the single family/multifamly ratio of 50/50%.

Friends Objection # 22:

Their objection indicates: Specific findings of the City’s need to grow (i.e., UGB expansion) are premature and misrepresent the TGM Study’s findings (pg. 15 of the Findings).

Specifically, because all of the previous 19 objections filed by 1000 Friends of North Plains regarding the underlying assumptions, support of an UGB expansion may or may not be upheld. Whether or not it will is dependent on re-evaluation and validation of the TGM Study’s assumptions, and resolution of the issues raised in the 19 objections.

Further, while the Findings state: "While the direction of growth issue is not determined in these findings, the conclusion about the City’s need to grow is" (Findings, pg. 14-15), 1000 Friends of North Plains believes they do so without an adequate factual basis.

Department response: The department agrees with some, but not all of the Friends objections. See discussion, below.

Friends Objection #15: Object to adoption of the Land Use Inventory and Needs Analysis in work task 3. Specifically, because population needs drive land needs, requested changes to Tasks 1 and 2 above relating to population projections should be made and are incorporated into objections to Task 3.

Department response: The department agrees to the extent that we have agreed or partially agreed to objection 2, 12, and 13 and therefore to some extent with one of the Friends’ primary objection/assertion that the potential for growth, hence land needs, is overstated.

The Department has an important concern over how the land needs for residential uses were calculated. The City uses an "under build" factor for the development in the expansion area, in addition to the gross to net conversation factor. The 20% under build factor is not justifiable under the premise of fulfilling the recommendations of the TGM Study to achieve an overall 8.4 units per acre net density. The result would be an actual 6.7 density! Although the Department allowed the use of a 20% under build factor for refill and redevelopment of existing housing stock, permitting it for calculation of land needs is not appropriate

To allow such a factor, the land needs become overstated. The other comment we have is that other categories of land use needs, aside from residential, have a 25% net to gross conversion factor added when none is necessary. This applies only residential development where land is to be subdivided. Institutional uses, like places of worship, schools, or public facility buildings are developed as single uses on single sites. The same holds true for parks and greenways. Internal roads and utilities do not account for 25% of the site, they are incorporated within the physical development as part of the built environment.

Therefore, the Department recommends the following revisions to the City’s summary table of land needs by uses (third column). The other two columns are taken from the City’s comprehensive plan amendments – (pg. 1929, Record):

The table below is the same as above, except for a further breakdown for the residential

Commissioners will note that as a result of allowing for a net to gross factor only for residential lands, in combination with taking out the "underbuild" factor for residential^, then the result is a land need for all uses of 135 acres, about 130 of which will be on EFU land^.

In addition to the use of a 20% under build factor in the land needs methodology, the City has formalized it as a city policy to guide actual development. Work Task 3 includes amendments to the North Plains Comprehensive Plan.

Policy (3) under Housing in part states:

Either the City must delete the second sentence OR designate the residential portions of the expansion area for 12.6 gross density, from which would result in a net density of 10.5, then further reduced by the last sentence in the policy to be 8.4.

We recommend remand for the revision of this policy, for amendments to the Housing Policy section of the new Comprehensive Plan section that contains outdated language about housing needs and population projections, and reworking of land need as recommended in our responses to Objections #20 and 21, below.

Friends Objection # 16:

Object to the Current Housing Inventory referenced in the Findings, pg. 3.

Specifically, the City failed to count 26 housing units developed on land zoned for commercial and industrial uses.

Department response: We recommend that the City be directed to add these units to the housing inventory.

Friends Objection #17:

Object to the adopted Infill and Redevelopment Potential as referenced in the Findings, pg. 4.

Specifically, the City erred by not fully considering the potential mixed-use areas identified by the TGM Study, which showed more than 25 acres within the current UGB as mixed-use corridors. Objector’s analysis concluded as many as 351 units could be accommodated, this analysis incorporated into this objection by reference (October 27, 1999 letter to North Plains Planning Commission).

Department response. We agree to some extent, but not the extent suggested by Friends.

The Department believes that the City must make a good faith attempt at balancing its desire for expanding the UGB with the necessity to look inward and increase residential capacity to some level higher than what currently exists.

Factor 4 of Goal 14, Urbanization, directs that jurisdictions anticipating an UGB expansion must: otherwise…

Under this current heading:

• Infill and redevelopment potential
• Downtown Revitalization
• Upzoning
• Existing and Proposed Density
• lack of residential designations

Infill and Redevelopment.

At the planning study and technical level, the City performed an excellent analysis of existing and potential housing stock by identifying an absolute number of units of infill. At the plan level, however, the City has likely underplayed the importance of the vital role of what redevelopment performs for a city’s viability. An example of this is the downtown redevelopment area as designated by the City.

The City’s proposed policies in Work Task 5 which relate to Downtown North Plains (Exhibit D, propose comprehensive plan amendments under Growth Management, the Goals are admirable, the policies speak to future actions. The are very few specific implementation measures t which would provide public policy guidance for a healthy, vibrant downtown. No decision has been made by the City as to floor area ratios or density in the downtown area. The City has designated a downtown area, small in extent, one half block on either side of Commercial St. (see Exhibit 5). The City has indicated there is a potential of 28 residential units. The City should enlarge the designated downtown area to some extent, by adding more blocks on the south side (the north side is constrained by a railroad). At issue is whether such a scant residential mix will enable a viable downtown to survive.

The TGM Study contemplated larger areas, both for downtown and areas on either side of Glencoe Road (see Exhibit 4. The Department anticipated that there might be additional opportunity for more intensive "nodal" mixed use areas along Glencoe, which is a "gateway" to the City. We provided grant monies for such a plan. By reviewing the City’s existing zoning map, there are large blocks of commercial zoned land that could be converted to either denser residential or mixed use districts.

The TGM Study, in addition to recommending a modest UGB expansion, also looked to redevelopment of the downtown as a tool to "promote infill development, and mitigate the need to expand the UGB" (any further). The concept, already in the City’s vision, was to support a more vibrant business district, and to provide additional housing close to services.

We recommend that the Work Task 5 be remanded so that the additional infill and redevelopment opportunities be included in a larger downtown core.

Friends Objection # 18:

Object to chart on page 5 of the Findings, entitled: "Estimated 2020 Residential Housing Needs. Related to objection to Task One (Objection #2). Specifically, no findings were adopted to support reducing the 50% attached housing target in the TGM Study to 25% of new housing units.

We agree, household size of 2.5 is much more justifiable with this component of multi-family, if the City was to build out at 75% single family, then the household size should be revised upward to 2.75.

Specht: (sub-objection) # 30:

The Goal 14, Factor 4 Requirement that Maximum Efficiency of Land Use Occur when expanding a UGB is not satisfied by Work Task 4. Specifically, the City has selected a growth alternative that is 1 ¼ to 1 ¾ miles from the existing center of North Plains, compared to the north and south expansion areas which are within ¾ mile from the city center. Expansion to the East will promote sprawl and will adversely affect the promotion of a compact urban form.

Department response: We disagree. All other things being equal, land which is closer to the city center would be more efficient for urbanization. However, the city has determined that due to the location of the limited access highway, lands to the south are not equal to the lands to the east. The city has determined that under Goal 14, factors 1 and 2, the lands to the south do not meet the need for a livable community. In effect, the inefficiency of crossing the highway outweighs the efficiency gain by closer proximity to the city center. This objection hinges on the commitment to construct a pedestrian bridge over the highway to create a compact, walkable city. The city's findings state (North Plains direction of Growth, page 10):

The city's findings are adequate to address the objection and the city adequately addresses Goal 14, factor 4 in the findings on pages 43 to 44.

Specht: Objection #23

The City has misapplied ORS.197.298 (self-identified as the first deficiency by the objector)

The City proposes to expand the UGB onto resource land north and south of the City instead of to exception land to the south of the City ("the south exceptions land ") and south of Highway 26 in alleged violation of the priority rules in this statute.

This objection is further argued in Objections numbers 24 through 26.

Specht (sub-Objection) #24:

ORS 197.298 is not subordinate to the Statewide Planning Goals.

Specifically, the City errs by concluding that "once a need [to expand the UGB] is identified, the City must then evaluate expansion alternatives consistent with Goal 14. (Findings, pg. 52). Further, the City errs when it further concludes that once Goals 2 and 14 are applied, the City must then apply ORS 197.298.

Department response: We disagree with the objector’s proposition that the City has subordinated the statute to the Goal. See below.

Specht (sub-Objection) #25:

The City misconstrues the Adjacency Requirement in ORS 197.298(1)(b); the south exception land is adjacent to the existing UGB and, thus, is Second Priority Land under ORS 197.298.

Specifically, the City has failed to determine the meaning of the phase "adjacent to" by not applying the Oregon rules of statutory construction and interpretation. The City instead attempts to rewrite the statute by suggesting that the words "adjacent to" should mean "adjoining, contiguous or abutting.’ (Findings, pg. 53). (priority of lands)

Department response: The Department finds this objection to be moot, see discussion, below.

Specht (sub-Objection) # 26:

The City has misapplied the exceptions to the priority rules found at ORS 197.298(3)

Specifically, the City errs when it claims a "livability need’ is a specific type of identified land need under 197.298(3)(a), and that the exception land in the South freeway exception area cannot meet this need." (Findings, pg. 54). (priority of lands)

Department response: We agree that a "livability need" is not a specific type of identified land need und the exceptions part of the statute, but disagree that the concept of livability can not be used to help justify an UGB expansion

Department response and discussion: There are 3 legs to the stool. The standards and criteria for evaluating proposed UGB expansion are clearly set forth in the Goals, the rules and the statute, (Goal 14; Goal 2 and the exceptions rule (OAR Chapter 660 Division 4) and the referenced statute, ORS 197.298. The text of the statue itself of indicates same ( "[i]n addition to any requirements established by rule addressing urbanization[.]"

LUBA has decided that application of the prioritization scheme of ORS 197.298 to satisfy a demonstration of need is predicated on that need being determined under Goal 14, factors 1 and 2. Malinowski Farms v. Metro, 38 Or LUBA 633, 654-55 (2000). Goal 14, factors 1 and 2, the "need" factors, provide:

To the extent that Specht argues that ORS 197.298 prohibits the application of Goal 14 before ORS 197.298 to narrow the statutory prioritization of lands inquiry to lands that are capable of accommodating the identified land need, Specht misreads the applicable law.

The Specht objection does not contend that the city has failed to identify a land need. More accurately, the objection is that the city has concluded that the exception area to the south of Highway 26 is inadequate to accommodate the amount of identified land need. Because that objection is determinative of many of the other objections raised by Specht, it is considered next.

Specht: Objection #27:

The City errs in its conclusion that future urban services cannot be "reasonably provided" to the south exception area that are precluded due to topographical or other physical constraints. Specifically, the Findings regarding

ORS 197.298(3)(b) are conclusionary, fail to cite supporting evidence in the record or to discuss opposing evidence; and thus inadequate to support the City's conclusion that future urban services cannot be reasonably be provided to the south exception area due to physical constraints. (priority of lands)

Department Response: This objection is moot because, as described above, the city has determined that south exception lands are inadequate to accommodate the amount of land needed and under the priority scheme of

ORS 197.298(1), the city is permitted to use lands of "lower priority."

Specht: Objection #28:

The City's Goal 14 Findings are not supported by Substantial Evidence in the Record as a whole. This objection is further argued in Objections Numbers 29 through 33, above.

Department Response: We disagree for the reasons set forth under the specific objections, below.

Specht (Objection) #31:

The Goal 14, Factor 5 Requirements are not adequately addressed by the City. Specifically, the City has failed to account in the environmental, energy, economic and social analysis ("ESSE analysis") for the costs of permitting and mitigation with the siting if urban development to the East. Further, the work tasks are incorrect in the analysis and conclusions regarding the affect on the airpark on the development of urban density residential development on land adjacent to the airpark, the impact to the airpark of such development; and the impact on the City of regulating the airpark.

Department response: We disagree. Under Goal 14, factor 5, the ESEE analysis, Specht faults the city for not addressing permitting and mitigation costs of siting development adjacent to McKay Creek, for considering the social impacts of bussing children across the freeway, and its conclusions regarding the impact of existing development on the ability of the south exception area to urbanize. With regard to McKay Creek, the city found (North Plains Direction of Growth, page 45):

The finding reflects the city's determination that protection and integration of McKay Creek into its parks planning is a benefit to the city. Specht does not show that this finding is erroneous.

With regard to bussing of students, the city's findings reflect a consideration of both a north and south school location (North Plains Direction of Growth, page 46):

Airpark issues

Finally, regarding the affect of the airpark on the development of urban residential density, Specht contends the city is incorrect. The city found in part (North Plains Direction of Growth, page 46):

Issue 6: Retention of agricultural land

Specht (Objection) #32:

The Goal 14, Factor 6 Discussion erroneously concludes that expansion to the South would threaten adjacent agricultural lands. Specifically, there is no basis for this conclusion and it is speculative beyond the current planning period out through year 2041.

Department response: We disagree. Under Goal 14, factor 6, Specht objects the city erroneously concludes, without basis, that expansion to the south would threaten adjacent agricultural lands. The city does state a basis for this conclusion (North Plains Direction of Growth, page 50):

Although these findings may well have been placed under Factor 7 (compatibility with adjacent agricultural uses), this objection does not provide a basis for a remand. The city's response to ORS 198.298 explains why the city chose not to expand the UGB onto the exception lands south of the highway and instead included lands of "lower priority" (farm land). These findings are also applicable to factor 6.

Specht (Objection) #33:

The Goal 14, Factor 7 Analysis is erroneous and based on incorrect assumptions. Specifically, the city's analysis of the compatibility of proposed urban uses in the South expansion area with nearby agricultural uses can be countered with information provided by a property owner in the South expansion area which offers an alternative view of such agricultural impacts, to the extent that they exist.

Department response: We disagree. Goal 14, factor 7 requires that the City consider the "compatibility of the proposed urban uses with nearby agricultural activities." The objection asserts a number of facts regarding the nature of the agricultural operations and activities in the south exception area and on adjacent lands and asserts that some of this information is in the record. The City used the "Farming Practices Impact Analysis for the City of North Plains Alternative Expansion Areas," which is based on a parcel-by-parcel evaluation of agricultural activities both within the particular expansion areas and within a one-mile radius of each of the potential expansion areas. The city adopted the determinations contained in the Impact Analysis. Again, Specht objects that when the city chose between conflicting evidence, it did not chose the evidence that Specht would have. That objection does not provide a basis for remand of the decision.

A. UGB Amendment

The applicable standards for an urban growth boundary (UGB) amendment are contained in Goal 14, Goal 2 Part II "Exceptions" and OAR 660-04-010 and ORS 197.298. Statewide Planning Goal 14 requires cities to have a UGB which has sufficient amounts of urbanizable land to accommodate the need for further urban expansion. The time horizon for a UGB is typically twenty years. Amendment of a UGB must address the following standards.

The seven factors of Goal 14:

1. Demonstrated need to accommodate long-range urban population growth requirements consistent with LCDC goals;

2. Need for housing, employment opportunities and livability;

3. Orderly and economic provision for public facilities and services;

4. Maximum efficiency of land uses within and on the fringe of the existing urban area;

5. Environmental, energy, economic and social consequences;

6. Retention of agricultural land as defined, with Class I being the highest priority for retention and Class VI the lowest priority; and

7. Compatibility of the proposed urban uses with nearby agricultural activities.

The "exceptions" rule, OAR 660-04-010(1)(c)(B), states:

"Revised findings and reasons in support of an amendment to an established urban growth boundary shall demonstrate compliance with the seven factors of Goal 14 and that the following standards are met:

(i) Reasons justify why the state policy embodied in the applicable goals should not apply (This factor can be satisfied by compliance with the seven factors in Goal 14);

(ii) Areas which do not require a new exception cannot reasonably accommodate the use;

(iii) The long-term environmental, economic, social and energy consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located in areas requiring a goal exception other than the proposed site; and

(iv) The proposed uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts."

Remand Matters and Deficiencies to be Corrected

Work task 1; Development of specific policies developed for the convergence. Concepts for these policies are found in the findings relating to livability pgs. 2-10 and throughout the work tasks completed later (i.e., Work Tasks 3,4,5). Better reconciliation of study and plan provisions will occur in conjunction with more specific policies as part of the remand.

Findings: Work Task 1 and 2, to be adopted pursuant to official Period review Work Program Order of June, 2001 (adopted previously under another work program approval order0. The City’s 62 page Findings Document should be re-formatted as well to show how the findings apply to all five of the Work Tasks.

Work Task 3; The City work task should be remanded to reduce overall park need in the expansion area by including the application of approximately 10 more acres of greenway to overall park need within the existing city limits to meet overall future park need. The Findings must be revised to address how some of the park needs can be accommodated within the existing city limits

Work Task 3: Remove the institutional land needs, a land need beyond the current planning period

Work Task 3: Remove "Underbuild factor" for calculation of land needs.

Work Task 3: Remove the "net to gross: factor for land uses other than residential.

Work Task 5 Comp Plan amendments: We recommend remand for the deletion of the policy; "New residential development shall be provided at a minimum of 80% of the allowable density for the specific area the development is located"

Revisions to amendments to the Housing Policy section of the new Comprehensive Plan section that contains outdated language about housing needs and population projections, and

Reworking of land need as recommended in our responses to Objections #20 and 21

(End of document)