Successes and Failures of Oregon’s Big Look Task Force

Written by William A. Van Vactor
Miller Nash Law Firm,

Introduction

In 2005, recognizing that Oregon’s land use system needed to be updated to reflect current times, Governor Ted Kulongoski and the Oregon legislature created the Big Look Task Force to review Oregon’s land use planning system. The Task Force was directed to make recommendations to the 2009 Legislature regarding the following issues:

• The effectiveness of Oregon’s land use planning program in meeting the current and future needs of Oregonians in all parts of the state;

• The respective roles and responsibilities of state and local governments in land use planning; and

• Land use issues specific to areas inside and outside urban growth boundaries.

The Big Look Task Force

In light of the above issues, and after three years of surveying Oregon’s land use system and receiving input from experts and citizens, the Task Force made, in summary, the following recommendations:

• The state needs a more flexible land use system, one that responds to regional variations rather than providing “one size fits all” standards.

• The state should foster greater regional cooperation among cities and counties to resolve land use planning issues collaboratively and efficiently.

• The state should coordinate planning for land use, economic development, and transportation, and clearly articulate what outcomes the state is trying to achieve. The state should also develop systems to monitor how it is doing in achieving those outcomes, along with asking for feedback about what is and what is not working.

• The state’s land use system needs to be simplified to remove the complexity that has built up after 35 years of regulation so that ordinary citizens can understand the basics of the program.1

Reflecting its recommendations, the Task Force proposed House Bill 2229 to the 2009 Legislative Assembly.2 House Bill 2229 incorporated the recommendations above, including incentives for local governments to utilize “Regional Problem Solving,” permitting counties to remap farm and forest lands, and directing the Land Conservation and Development Commission (“LCDC”) to audit Oregon’s land use system. The original bill also contained provisions for developing an integrated strategic plan that would include coordination of land use, transportation, economic development, and other key economic community objectives. Lastly, the bill also contained provisions requiring the Oregon Progress Board and the Department of Land Conservation and Development (“DLCD”) to work together to review and revise benchmarks relating to state and local land use systems, and develop corresponding performance standards to measure progress toward the statewide planning goals.

The original bill, however, met overwhelming criticism when introduced. For instance, some land conservationists felt that the proposed legislation attempted to fix a system that needed no fixing. In fact, conservationists pointed to the Task Force’s own findings that Oregon’s land use system had for the past 35 years protected resource land. On the other hand, property-rights advocates felt that the legislation could go further in fixing the system and protecting property rights. Consequently, both sides agreed that HB 2229 needed significant revisions before it became the law.

In the end, the legislature passed HB 2229B. The revised bill is a mere shadow of the one originally proposed by the Task Force. Significantly, HB 2229B does permit counties to reconsider what lands should be designated farm and forest lands. Beyond providing counties that opportunity, however, HB 2229B does not adopt many of the Task Force’s recommendations. The following is a brief overview of HB 2229B as passed by the legislature.

House Bill 2229B

Initially, HB 2229B adopts four overarching principles to guide the legislative assembly when enacting laws regulating land use, and also to guide other public bodies when adopting or interpreting comprehensive plans and land use regulations, or when interpreting any law governing land use. The four principles are as follows: (1) provide a healthy environment; (2) sustain a prosperous economy; (3) ensure a desirable quality of life; and (4) equitably allocate the benefits and burdens of land use planning. Interestingly, however, consideration of the overarching principles is not a “legal requirement for [governing bodies] and is not judicially enforceable.” While the original bill did note that the overarching principles only provide “guidance,” the original bill did not state that the principles were not “legally enforceable.” Thus, it is unclear what effect these principles will have on the Oregon land use system.

Next, HB 2229B permits counties to reconsider what lands are properly designated farm and forest lands. This provision of the revised bill will likely be the most interesting one to Oregon property owners, especially rural property owners, because it may affect how their property is planned and zoned for use. The bill provides that counties may, to correct mapping errors, review county lands to determine whether the lands currently designated for farm and forest use meet the definitions of “agricultural lands” or “forest lands” as defined by the statewide planning goals. A county pursuing this amendment must have DLCD approve a work plan and provide an opportunity for property owners who own land planned for farm and forest use to be included in the review.

If a county determines that some land should be planned and zoned for nonresource use, it must also determine whether the lands contain ecologically significant natural areas or resources. In doing so, the county must maintain an inventory of ecologically significant areas and establish a program to protect the areas or resources from adverse effects of new uses allowed by the planning or zoning changes. The county must also ensure that the change is consistent with the carrying capacity of the lands. For instance, the county must consider the amount, type, location, and pattern of development on lands to be redesignated as nonresource lands and make sure that the redesignation will not lead to significant adverse effects, including on water quality and availability. And to the extent practicable, the county must make sure that residential development is clustered, to minimize effects on farm and forest uses.

Finally, House Bill 2229B also refines how counties and local governments can participate in regional problem-solving. The provisions clarify how local governments can work together to align comprehensive plans and to encourage local governments to work together to reach regional goals. HB 2229B also permits LCDC to coordinate (when resources are available) a policy-neutral review and audit of Oregon land use laws and statewide land use planning goals.

Conclusion

In sum, HB 2229B did little to remove the complexity that has developed over the last 35 years or to create more flexibility in how land use regulations are implemented. Further, HB 2229B does little to address improving citizen participation, or improving coordination among planning efforts for transportation, infrastructure, and economic development. Perhaps this is the result of Oregon’s land use system taking a back seat to the more pressing issues facing the 2009 legislature as a result of the recession. Or conceivably, the result is the legislature’s way of saying that the Oregon land use system is in need of only minor tweaks.

While the many goals of the Task Force, as described in its Final Report, may not have been realized, the passage of HB 2229B by bipartisan effort appears to be a recognition that some change is needed. Whether the efforts of the Big Look Task Force will lead to more broad-ranging legislation in the future, however, is yet to be seen.

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1For a complete review of the Task Force’s recommendations, see Oregon Task Force on Land Use Planning, Final Report to the 2009 Oregon Legislature, available at http://centralpt.com/upload/301/7243_BLTF-final-report-JAN8-screen.pdf. For a more detailed summary, see William Rasmussen, Oregon’s Big Look Land Use Task Force, Nov. 14, 2008, available at http://www.millernash.com/ showarticle.aspx?Show=2724.

2HB 2229, 75th Or Leg, Reg Sess (2009), available at http://www.leg.state.or.us/09reg/measpdf/hb2200.dir/ hb2229.intro.pdf.

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