On February 20, 2014, the Oregon Court of Appeals issued its highly anticipated decision in Barkers Five LLC et al. v. LCDC. The Court reversed and remanded the decision of the Land Conservation and Development Commission (“LCDC”) approving Metro’s designation of urban and rural reserves in Washington, Clackamas, and Multnomah Counties. The 126-page opinion reflects the complexity of a case that involved nine petitioners, seven respondents, a 33,000-plus-page record, and hundreds of pages of briefing. The decision actually upheld most of LCDC’s interpretation and application of the legal framework and applicable rules for designation of urban and rural reserves, but concluded that LCDC had misapplied the law in the following four ways:

  • by approving Washington County’s misapplication of the rural-reserve factors applicable to agricultural land;
  • by concluding that Multnomah County had adequately considered the rural-reserve factors pertaining to Area 9D (West Hills North);
  • by concluding that LCDC had the authority to approve a local government’s inadequate findings if the evidence in the record “clearly supports” the decision; and
  • by failing to meaningfully explain why—even in the face of weighty countervailing evidence—Metro and the counties’ designation of Areas 4A to 4D (the Stafford Area between Tualatin, West Linn, Lake Oswego, and Wilsonville) as urban reserve is supported by substantial evidence.

The effect of these holdings will require LCDC to remand the decision back to Metro and the counties to address the deficiencies noted above and readopt an amended decision. This decision will also likely result in the remand of Metro’s subsequent 2012 urban growth boundary amendment because it was based in part on the reserves designations. Several legislators are floating a proposal to legislatively designate reserves, at least in Washington County. The text of the amendment has not yet been released, so it is unclear how it will affect the remainder of the reserves decision. Many local government leaders, including Metro President Tom Hughes, have expressed concern about the precedent that such state action could create. The implementation of the statewide land use system has always been a local government decision, and the concern is that state action will encourage everyone to go to the legislature for a work around.