726
Argued and submitted December 4, 2018, affirmed October 9, 2019
BARKERS FIVE, LLC
and Sandy Baker,
Petitioners,
v.
LAND CONSERVATION AND
DEVELOPMENT COMMISSION,
Metro, Clackamas County, and Multnomah County,
Respondents.
Land Conservation and Development Commission
18ACK001894; A167937 (Control)
METROPOLITAN LAND GROUP,
Petitioner,
v.
LAND CONSERVATION AND
DEVELOPMENT COMMISSION,
Metro, Clackamas County, and Multnomah County,
Respondents.
Land Conservation and Development Commission
18ACK001894; A167956
SPRINGVILLE INVESTORS, LLC,
an Oregon limited liability company;
Burnham Farms, LLC,
an Oregon limited liability company;
David Blumenkron, an individual;
Katherine Blumenkron, an individual;
and Robert Zahler, an individual,
Petitioners,
v.
LAND CONSERVATION AND
DEVELOPMENT COMMISSION,
Metro, Clackamas County, and Multnomah County,
Respondents.
Land Conservation and Development Commission
18ACK001894; A167957
Cite as 299 Or App 726 (2019) 727
LANPHERE CONSTRUCTION
AND DEVELOPMENT, LLC.,
Petitioner,
v.
LAND CONSERVATION AND
DEVELOPMENT COMMISSION,
Metro, Clackamas County, and Multnomah County,
Respondents.
Land Conservation and Development Commission
18ACK001894; A167991
451 P3d 627
Petitioners seek judicial review of a 2018 order of the Land Conservation
and Development Commission (LCDC), acknowledging the designation of urban
and rural reserves that will guide growth in the Portland metropolitan area
for the next several decades. The Court of Appeals had previously reversed and
remanded LCDC’s original acknowledgment order, following LCDC’s review of
Metro and Clackamas, Multnomah, and Washington counties’ joint submittal,
designating such reserves. Barkers Five, LLC v. LCDC, 261 Or App 259,
323 P3d
368 (2014) (Barkers Five). On judicial review of LCDC’s 2018 acknowledgment
order, the Court of Appeals writes to address the contentions of various petitioners that LCDC’s order is unlawful in substance because it approved a new joint
remand submittal in which (1) Metro and Clackamas and Multnomah counties
failed to properly analyze whether the designated urban and rural reserves satisfied the “best achieves standard” of OAR 660-027-0005(2); (2) those governments’
determination that the designation meets the best achieves standard was not
supported by substantial evidence; and (3) Metro and Multnomah County failed
to reconsider all of the Multnomah County designations consistently with the
court’s remand instructions in Barkers Five. Held: LCDC did not err in determining that the new joint submittal demonstrated compliance with the best achieves
standard, concluding both that Metro and Clackamas and Multnomah counties
had applied the required factors to arrive at specific urban and rural reserves
and designations and that, considered in its entirety, the overall designation
satisfied the qualitative best achieves standard. Further, the Court of Appeals
was not persuaded that LCDC failed to correctly apply the substantial evidence
standard in assessing the substantial evidence arguments concerning the best
achieves standard. Finally, nothing in Barkers Five required reconsideration of
urban and rural reserve designations throughout Multnomah County. The Court
of Appeals rejected petitioners’ remaining arguments without discussion.
Affirmed.
Wendie L. Kellington argued the cause for petitioners
Barkers Five, LLC, and Sandy Baker. Also on the briefs were
Kellington Law Group, P.C.; Matthew D. Lowe and Jordan
Ramis PC.
728 Barkers Five, LLC v. LCDC
Sara Kobak argued the cause for petitioner Metropolitan
Land Group. Also on the briefs were Michael C. Robinson
and Schwabe, Williamson & Wyatt, P.C.
Christopher James argued the cause for petitioners
Springville Investors, LLC, Burnham Farms, LLC, David
Blumenkron, Katherine Blumenkron, and Robert Zahler.
Also on the briefs was The James Law Group, LLC.
Jeff Bachrach argued the cause and filed the briefs for
petitioner Lanphere Construction and Development, LLC.
Patrick M. Ebbett, Assistant Attorney General, argued the
cause for respondent Land Conservation and Development
Commission. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Roger A. Alfred argued the cause and filed the brief for
respondent Metro.
Nathan K. Boderman argued the cause for respondent
Clackamas County. Also on the brief was Stephen L. Madkour.
Jed Tomkins argued the cause for respondent Multnomah
County. Also on the brief was Jenny M. Madkour.
Before Hadlock, Presiding Judge, and Aoyagi, Judge, and
Sercombe, Senior Judge.*
HADLOCK, P. J.
Affirmed.
______________
* Aoyagi, J., vice Garrett, J. pro tempore.
Cite as 299 Or App 726 (2019) 729
HADLOCK, P. J.
For the next few decades, growth in the Portland
metropolitan area will be guided by the designation of
urban and rural reserves.1 Responding to a legislative
charge to designate such reserves, Metro and Clackamas,
Multnomah, and Washington counties jointly submitted
a designation to the Land Conservation and Development
Commission (LCDC) for its review in 2010. LCDC voted to
acknowledge that joint submittal, as revised in 2011, and
it issued an order acknowledging the submittal in 2012.
On judicial review, we upheld LCDC’s understanding of
the foundational legal principles that govern designation of
urban and rural reserves. Barkers Five, LLC v. LCDC, 261
Or App 259,
323 P3d 368 (2014) (Barkers Five). However, we
concluded that LCDC had erred in applying those principles
with respect to certain areas in each of the three counties.
See
id. at 363-64 (summarizing the reasons that LCDC’s
order was unlawful in substance). We therefore reversed and
remanded the order. After further proceedings on remand—
as well as intervening legislation, which we discuss below—
another joint submittal was submitted to LCDC, which
issued an acknowledgement order in 2018 approving the
submittal. Petitioners now challenge that 2018 acknowledgement order.2 As in Barkers Five, petitioners’ assignments of error involve (1) fundamental issues concerning
the validity and application of several of LCDC’s administrative rules—including the “safe harbor” provision of OAR
660-027-0060(4)—and its application of the legal principles
governing the designation of reserves; (2) the correctness of
1
Urban reserves are lands designated “to accommodate population and
employment growth” for a specified decades-long planning period. ORS 195.145(4).
Rural reserves have been described as “ ‘the lands that are critical to the functioning and long-term viability of the agricultural industry irrespective of soil
quality’ ” or as lands so designated “ ‘to protect important natural areas.’ ” Barkers
Five, LLC v. LCDC, 261 Or App 259, 273-74,
323 P3d 368 (2014) (Barkers Five)
(quoting legislator’s statement during floor debate on the statute that authorizes
designation of rural reserves). The factors that inform designation of urban and
rural reserves, as well as the procedures associated with designation, are discussed at length in Barkers Five.
Id. at 271-82.
2
Four groups of petitioners appear separately on judicial review: (1) Barkers
Five, LLC, and Sandy Baker (Barkers); (2) Metropolitan Land Group (MLG);
(3) Springville Investors, LLC, David Blumenkron, Katherine Blumenkron,
Robert Zahler, and Burnham Farms, LLC (Springville); and (4) Lanphere
Construction and Development, LLC (Lanphere).
730 Barkers Five, LLC v. LCDC
LCDC’s substantial evidence review; and (3) general contentions that much of the decision-making involved in the
reserves-designation process was impermissibly political.
Having reviewed the voluminous record and considered each
of the arguments presented on judicial review, we affirm.
In this opinion, we write primarily to address two
of the contentions that petitioners raise on judicial review.
Described broadly, those arguments are as follows. First,
petitioners MLG, Springville, and Barkers challenge LCDC’s
order on the ground that the joint submittal reflected a failure by Metro and the counties to properly analyze whether
the designated urban and rural reserves satisfy the “best
achieves standard” that applies to urban and rural reserve
designations in their entirety. Second, MLG and Springville
contend that, on remand from our 2014 decision, Metro and
Multnomah County should have reconsidered—but did not
reconsider—all of the Multnomah County reserve designations; petitioners conclude that LCDC’s order is unlawful in substance because it approved the joint submittal,
which reflects that purported failing. We explain below why
we are not persuaded by either of those arguments.3 We
reject petitioners’ remaining arguments without extended
discussion.
To provide context for the analysis that follows, we
summarize the governing legal principles and pertinent
aspects of the proceedings to this point. The 2007 legislature adopted a process and substantive guidelines for the
designation of urban and rural reserves “to provide ‘greater
certainty’ to commerce, industry, private land owners, and
providers of public services by ‘facilitat[ing] long-range planning’ for both urban and rural uses.” Barkers Five, 261 Or
App at 271 (quoting ORS 195.139 (brackets in Barkers Five)).
That legislation, codified in ORS chapter 195, specified certain factors that Metro and the counties must consider in the
designation process.
Id. at 271-75. For land proposed for designation as urban reserves, those factors relate to various
3
Respondents assert that petitioners failed to preserve many of the contentions that they now raise on judicial review. For several reasons, resolution of
those preservation issues is not straightforward. To the extent that they may
fairly be viewed as preserved, we reject petitioners’ contentions on the merits and
do not further address respondents’ preservation challenges.
Cite as 299 Or App 726 (2019) 731
aspects of urban development, including density, infrastructure, urban economics, housing, education and other public
facilities, walkability, and ecology.
Id. at 272-73 (citing ORS
195.145(5)). For proposed rural reserves, the specified factors generally relate to whether the land is capable of and
suitable for agriculture and whether it is in “ ‘an area that
is otherwise potentially subject to urbanization[.]’ ”
Id. at
274-75 (quoting ORS 195.141(3)).
In addition, two overarching principles guide the
designations. First, an “amount of land standard” requires
the designation of an amount of urban reserves sufficient
to accommodate population and employment growth for “a
period between 20 and 30 years beyond the 20-year [urban
growth boundary (UGB)] planning period.” Id. at 273
(explaining ORS 195.145(4)). Second, as articulated in an
LCDC rule that describes the reasons for designating urban
and rural reserves, the overriding “objective” of the designation process is:
“a balance in the designation of urban and rural reserves
that, in its entirety, best achieves livable communities, the
viability and vitality of the agricultural and forest industries and protection of the important natural landscape
features that define the region for its residents.”
OAR 660-027-0005(2) (emphasis added). That objective, discussed at length in Barkers Five, is referred to as the “best
achieves standard.” Barkers Five, 261 Or App at 311-18.
With that context in mind, we turn to the procedural history of this case, as summarized in Barkers Five
and in unchallenged parts of the 2018 LCDC acknowledgement order that is the subject of this opinion. After LCDC
issued its initial 2012 acknowledgement order, 22 petitioners sought judicial review, raising both broad challenges to
the legal premises underlying LCDC’s decision and specific
challenges to the reserves designations of particular areas
of land. Barkers Five, 261 Or App at 264. Ultimately, we
upheld the “fundamental legal premises underlying LCDC’s
review of the submittal,” rejecting challenges to the meaning of the best achieves standard.
Id. at 363. However, as
pertinent here, we concluded that LCDC had erred in several respects, one that related to Washington County’s
732 Barkers Five, LLC v. LCDC
application of the rural reserve factors to agricultural land,
one that related to Multnomah County’s consideration of
factors pertaining to the rural reserve designation of Area
9D, and one that related to LCDC’s substantial evidence
review of the Stafford’s urban reserve designation.
Id. at
364. Accordingly, we reversed and remanded the order for
further proceedings.
Id.
Shortly after we issued Barkers Five, the legislature
passed House Bill (HB) 4078 (2014), which became effective
on April 1, 2014.4 Among other things, that bill established
urban reserves and rural reserves in Washington County,
thus removing the question of reserves designations in
that county from the scope of the task on remand from this
court.5 Overall, HB 4078 reduced the quantitative amount
of urban reserves in Washington County by 3,210 acres as
compared to the amount that LCDC had upheld in the 2012
acknowledgement order.
LCDC subsequently issued an order remanding
“Rural Reserve Area 9D to Multnomah County and Metro,”
as well as “Urban Reserve Areas 4A, 4B, 4C, and 4D”—
the areas commonly referred to as Stafford—“to Metro
and Clackamas County” so those governments could take
“further action consistent with the principles expressed in
Barkers Five[.]” The order contemplated that Metro and the
counties would prepare a new joint submittal and it specified that LCDC would review the new submittal for compliance with the pertinent statutes and all applicable LCDC
rules. No party sought judicial review of the scope of that
LCDC order.
4
HB 4078 was codified at ORS 195.144. That statute was subsequently
amended in 2015 and 2019. Or Laws 2015, ch 150, § 1; Or Laws 2019, ch 199.
The 2015 amendments to ORS 195.144 made “technical corrections necessary
to implement House Bill 4078 (2014) as intended.” Staff Measure Summary,
House Committee on Rural Communities, Land Use, and Water, HB 2047,
Feb 5, 2015, https://olis.leg.state.or.us (accessed Sept 24, 2019). The 2019 amendments narrowed the subset of land designated “as employment land of state
significance.” Staff Measure Summary, Senate Committee on Environment and
Natural Resources, HB 2914A, May 14, 2019, https://olis.leg.state.or.us (accessed
Sept 24, 2019). Those amendments do not affect our resolution of the issues in
this case.
5
HB 4078 was not limited to designating reserves in Washington County.
Among other things, it also deemed certain property to be included within the
acknowledged UGB. Or Laws 2014, ch 92, § 4.
Cite as 299 Or App 726 (2019) 733
In the summer of 2017, Metro submitted a new joint
submittal (incorporating findings and ordinances earlier
adopted by Clackamas and Multnomah Counties) for LCDC’s
consideration. Several objections were filed, including by
each of the petitioners on judicial review. The Department of
Land Conservation and Development (DLCD) issued a staff
report in October 2017, to which petitioners filed exceptions.
DLCD issued a supplemental staff report in November,
LCDC held a public hearing the same month, and LCDC
issued its acknowledgement order in May 2018.
LCDC’s lengthy 2018 order acknowledges urban
and rural reserve designations that, in Clackamas and
Multnomah counties, are the same designations as those
made in the 2012 order. In particular, the rural reserve designation for Area 9D in Multnomah County did not change.
In that regard, LCDC noted that Multnomah County had
adopted “supplemental findings and conclusions explaining
why Area 9D was designated as rural reserve under the
applicable factors.” After evaluating those findings, LCDC
concluded that Multnomah County had applied and balanced the pertinent rural reserve factors and had meaningfully explained why the entirety of Area 9D should be
designated rural reserve. LCDC also concluded generally
that the joint submittal complied with all applicable statutes and rules. Petitioners now seek judicial review of that
2018 acknowledgement order.
We first address the arguments that MLG, Barkers,
and Springville make that are related to the best achieves
standard. Petitioners contend that LCDC unlawfully approved
a joint submittal that is flawed because (1) the submittal
shows that Metro and the counties failed to engage in the
type of balancing analysis that petitioners contend the best
achieves standard requires, and (2) those governments’
determination that the designation meets the best achieves
standard is not supported by substantial evidence. For the
reasons set out below, we disagree on both points.
As previously noted, the best achieves standard is
established by LCDC rule:
“Urban reserves … are intended to facilitate long-term planning for urbanization in the Portland metropolitan
734 Barkers Five, LLC v. LCDC
area and to provide greater certainty to the agricultural
and forest industries, to other industries and commerce, to
private landowners and to public and private service providers, about the locations of future expansion of the Metro
[UGB]. Rural reserves … are intended to provide long-term protection for large blocks of agricultural land and
forest land, and for important natural landscape features
that limit urban development or define natural boundaries
of urbanization. The objective of [LCDC’s rules] is a balance in the designation of urban and rural reserves that, in
its entirety, best achieves livable communities, the viability and vitality of the agricultural and forest industries and
protection of the important natural landscape features that
define the region for its residents.”
OAR 660-027-0005(2) (emphasis and boldface added).
LCDC explained its understanding of the best
achieves standard in its 2012 acknowledgement order, and
we addressed that standard in Barkers Five, determining
that the following premises of LCDC’s explanation of the
standard were valid:
“First, the best achieves standard is a qualitative standard rather than a quantitative one.
“Second, the standard applies to Metro and the counties’
joint designation in its entirety and not to the designation
of individual properties or areas.
“Third, the best achieves standard allows for a range of
permissible designations.
“Fourth, Metro and the counties must explain how the
designation satisfies the best achieves standard through
their findings concerning the application of the urban and
rural reserve factors.”
261 Or App at 311 (emphases in original; internal quotation
marks omitted).
Significantly, we explained in Barkers Five that the
“balancing” that the best achieves standard requires is “the
balancing of three competing objectives” that are qualitative, not quantitative, in nature. Id. at 312. That is, nothing
in the LCDC rule “suggests that there must be a quantitative balance in the amount of land designated as urban
Cite as
299 Or App 726 (2019) 735
reserves and the amount of land designated as rural
reserves.” Id. at 313.6 Moreover, despite the rule’s use of the
word “best,” the rule does not contemplate “a single, optimal
designation.” Id. at 314. Rather, the best achieves standard
confers “legally circumscribed discretion” on Metro and the
counties, id. at 315, the exercise of which could result in any
of “a range of permissible designations,” id. at 317.
Petitioners’ arguments on judicial review relate to
how both the 2017 joint submittal and LCDC’s 2018 acknowledgement order treat that standard. The joint submittal discusses the standard at length. First, the submittal emphasizes that the “balance” contemplated by the best achieves
standard is a balance of three objectives, two of which—“the
viability and vitality of the agricultural and forest industries and protection of the important natural landscape
features that define the region for its residents,” OAR 660-
027-0005(2)—“are primarily achieved through rural reserve
designations” that are designed for “(a) protection of farm
and forest and (b) protection of important natural resource
features.” The submittal notes that the reduction of urban
reserves in Washington County through HB 4078 does
not adversely affect achievement of those objectives; to the
contrary, “that legislation enhanced the region’s ability to
achieve those two standards by adding approximately 2,780
acres of new rural reserves in Washington County, all of
which is foundation agricultural land.”
The submittal also explains why the third objective
(“livable communities”) and the best achieves standard were
both met notwithstanding the reduction of urban reserves
in Washington County:
6
The structure of the pertinent LCDC rules reflects the absence of any
requirement for a quantitative balance between urban reserves and rural
reserves. OAR 660-027-0005 describes the best achieves standard, which, as
explained in Barkers Five, focuses on balancing qualitative goals. Other division
27 rules set out the factors that must be applied in designating urban reserves
(OAR 660-027-0050), the amount of land standard for urban reserves (OAR 660-
027-0040(2)), and the factors to be applied in designating rural reserves (OAR
660-027-0060). Although the rules specify ways in which the processes for designating urban reserves and rural reserves must be coordinated (e.g., OAR 660-
027-0040(10)) the factors that apply to each of those types of reserves are laid out
separately, and nothing in the rules suggests that designation of any particular
amount of one type of reserve must influence the quantity of land designated for
the other type of reserve.
736 Barkers Five, LLC v. LCDC
“The third objective that must be balanced as part of the
best achieves analysis is ‘livable communities.’ This objective is primarily achieved by designating areas across the
region that will be the best locations to build ‘great communities’ through application of the urban reserve factors. As
discussed in Section II of these findings, great communities
are those that offer residents a range of housing types and
transportation modes from which to choose. To that end,
urban reserve factors (1), (3), (4) and (6) are aimed at identifying lands that can be developed in a compact, mixeduse, walkable and transit-oriented pattern, supported by
efficient and cost-effective services.
“The reduction of urban reserves in Washington County
by 3,210 acres does not impact the region’s ability to build
livable communities across the region over the next 40 to
50 years. The quantitative aspect of urban reserve planning is addressed by [the amount of land standard] that
requires sufficient acreage for up to 50 years of urban
growth. Meanwhile, the directive of the best achieves standard to provide livable communities is aimed at designating highest quality of locations that can provide a range
of housing types and transportation modes, as well as
efficient public services. As [an earlier section of the joint
submittal had explained], the existing urban reserve acreage in the region still provides a sufficient amount of land
for urban growth over the next 40 to 50 years. The fact
that House Bill 4078 reduced the amount of urban reserves
from 26,241 to 23,031 acres has no effect on the region’s
ability to plan and build livable communities on those
23,031 acres over the next several decades. Therefore, the
balance in the designation of urban and rural reserves, in
its entirety, still achieves the goals of providing livable communities, viability and vitality of farm and forest industries,
and the protection of important natural landscape features
that define the region.”
(First emphasis in original; second emphasis added.)
In reviewing challenges to that submittal, LCDC
described its task as considering whether “the joint submittal explains” how the designation of urban and rural
reserves meets the best achieves standard. Finding the
joint submittal “mindful of the four legal premises” underlying the standard that we identified in Barkers Five, LCDC
described the submittal as having addressed “issues related
Cite as 299 Or App 726 (2019) 737
to the regionwide supply of urban reserves and the overall
balance of reserves in light of (a) the adoption of the current
[Urban Growth Report] …, and (b) the Oregon Legislature’s
enactment of House Bill 4078.” LCDC ultimately determined that the submittal “demonstrate[d] compliance with”
the best achieves standard, concluding both that Metro and
the counties had applied the required factors to arrive at
specific urban and rural reserves designations and that,
considered in its entirety, the overall designation “meets the
qualitative [best achieves] standard.”
Barkers challenges LCDC’s conclusion, arguing that
the joint submittal “applied an improper methodology that
failed to conduct any ‘balancing’ as required under the [best
achieves] standard.” That argument is grounded on the
reduction in Washington County urban reserves resulting
from HB 4078. Barkers criticizes the joint submittal for
having considered the adequacy of the remaining urban
reserves “in isolation,” without having separately evaluated
whether the resulting balance of urban and rural reserves
“best achieves” the objectives set out in OAR 660-027-
0005(2). Because “the methodology employed by Metro and
the counties contained no evaluation or consideration of the
balance in the designation of urban and rural reserves,”
Barkers asserts, LCDC’s order approving the joint submittal is unlawful in substance. In response, Metro argues that
the joint submittal includes “detailed findings” that properly
explain how “the qualitative balance of the three [OAR 660-
027-0005(2)] objectives was impacted by the House Bill 4078
adjustments” and why those three objectives “are still ‘balanced’ through the reserve designations notwithstanding”
those changes. (Emphasis in original.)
We agree with Metro. When HB 4078 reduced urban
reserves in Washington County, Metro and the other counties were not required to reweigh the quantitative amounts
of urban and rural reserves to determine whether they
remained in optimal balance. Rather, their task was to
consider, again, whether the designations were balanced
in the sense that—in the governments’ judgment, applying
the pertinent factors—the designations best achieve the
objectives of “livable communities, the viability and vitality
738 Barkers Five, LLC v. LCDC
of the agricultural and forest industries and protection of
the important natural landscape features that define the
region for its residents.” OAR 660-027-0005(2); see also OAR
660-027-0040(10) (the joint submittal must explain how the
urban and rural reserve designations “achieve the objective
stated in OAR 660-027-0005(2)”).
Here, the joint submittal accomplishes that in a
series of steps. First, it explains that the HB 4078 reduction
in Washington County urban reserves does not leave the
region with an insufficient amount of land for urbanization.
Next, the joint submittal addresses whether the remaining
urban reserves achieve the goal of “designating [the] highest quality of locations that can provide a range of housing
types and transportation modes, as well as efficient public
services.” (Emphasis in original.) That qualitative and locational emphasis is appropriate in light of the focus on creation of “livable communities” in OAR 660-027-0005(2) and
in light of the “Great Communities” report that informed
development of the statutory urban reserve factors. See
generally Barkers Five, 261 Or App at 269-73 (discussing
development of the reserve factors). The submittal concludes
that the reduction of urban reserves in Washington County
had “no effect on the region’s ability to plan and build livable communities” on the remaining urban reserves over
the next several decades. Because the remaining urban
reserves achieved the same qualitative goals as did the initial urban reserves, Metro and the counties determined that
the resulting balance of agricultural, forestry, urbanization,
and natural demands met the best achieves standard, notwithstanding the quantitative reduction of urban reserves
under HB 4078. Thus, the record supports LCDC’s determination that Metro and the counties appropriately considered
the best achieves standard on remand.
Although Barkers disclaims any such intention, its
argument to the contrary depends on a notion that the best
achieves standard requires these two things: (1) that Metro
and the counties weigh the quantitative amounts of land designated as urban and as rural reserves, and (2) that those
governments identify a single best quantitative balance. As
we have explained above, neither of those premises is correct.
Rather, on remand (as initially), the best achieves standard
Cite as 299 Or App 726 (2019) 739
required Metro and the counties to determine whether the
region-wide designations accomplish “ ‘a balance between
encouraging further urban expansion versus land conservation.’ ” Barkers Five,
261 Or App at 312 (quoting LCDC).
Significantly, Metro and the counties are not required to
rank possible alternative designations to determine which
is optimal.
Id. at 314. Instead, in seeking to balance the
competing priorities, the governments act with “legally circumscribed discretion” that allows selection of any one of “a
range” of regional designation options based on the pertinent statutory and regulatory factors.
Id. at 315; see
id. at
318. We therefore reject Barkers’ arguments to the extent
that it suggests that the joint submittal is flawed either
because it did not quantitatively rebalance the amount of
reserves or because it did not seek to identify the single best
balance.7
MLG makes a different argument based on the best
achieves standard, contending that the record does not
include substantial evidence “to support findings that the
7
In some respects, Barkers’ argument appears to rely on a single, concluding
sentence in the joint submittal:
“Therefore, the balance in the designation of urban and rural reserves, in its
entirety, still achieves the goals of providing livable communities, viability
and vitality of farm and forest industries, and the protection of important
natural landscape features that define the region.”
(Emphasis added.) Barkers contends that the submittal’s use of the words “still
achieves” demonstrates that Metro and the counties did not reconsider what
balance would “best achieve” the specified goals, but merely determined—
essentially working backwards from existing designations to each of the three
goals—whether the existing designations “still” met the legal standard. We
understand Barkers to argue, at least implicitly, that LCDC erred by concluding
otherwise.
That argument inappropriately focuses on a single word (“still”) without considering the context in which it is used. As explained above, the joint submittal—
read as a whole—indicates that Metro and the counties appropriately considered
on remand whether, despite HB 4078, the initial qualitative factors that went
into the “best achieves” balancing had changed; because they had not, the governments could properly conclude, again, that the region-wide designations “best
achieve” the desired qualitative balance. Barkers attributes more weight to the
word “still” than it can bear in this context. Read as a whole, the joint submittal explains the governments’ determination that the original designations best
achieve the required qualitative balance and why, even after accounting for the
changes effectuated by HB 4078, the designations continue to (or “still”) best
achieve that balance. LCDC was not required to conclude, based on the quoted
sentence, that the governments did not properly apply the best achieves standard
on remand.
740 Barkers Five, LLC v. LCDC
urban reserves satisfy the best-achieves standard.” (Capitalization omitted.) It asserts that Metro and the counties
engaged in no meaningful review of the designations under
the best achieves standard, because they failed to adequately account for the quantitative changes effected by HB
4078 and the capacity of lands in the region to accommodate
future urbanization.
In reviewing such record-based arguments on judicial review of the LCDC order, we do not determine ourselves whether substantial evidence in the record supports
the joint submittal’s findings. Rather, we determine whether
LCDC properly performed that task:
“To the extent that the parties contend that the order
on review is unlawful in substance because LCDC misapplied its standard of review for substantial evidence, our
role is not to review Metro and the counties’ submittal for
evidentiary support. Instead, we determine whether LCDC
understood and applied the substantial evidence standard
correctly. In that regard, where LCDC properly articulates
the substantial evidence standard of review, we will affirm
unless the evidence is so at odds with LCDC’s evaluation
that we can infer that LCDC misunderstood or misapplied
the proper standard.”
Barkers Five, 261 Or App at 348 (internal quotation marks
and citations omitted).
Having reviewed the record, the joint submittal,
and LCDC’s acknowledgement order—as well as the parties’ briefing—we are not persuaded by MLG’s contention
that LCDC failed to correctly apply the substantial evidence
standard when it assessed MLG’s substantial evidence
arguments related to future urbanization. We therefore
reject that aspect of MLG’s best achieves argument without
further discussion.
Finally, we address arguments relating to the scope
of our remand in Barkers Five. The ultimate disposition
in that case was to “reverse and remand [LCDC’s 2012
acknowledgement] order for further action consistent with
the principles expressed in [the] opinion.” Barkers Five,
261 Or App at 364. On remand from LCDC, Metro and
the counties generally did not reconsider urban and rural
Cite as
299 Or App 726 (2019) 741
reserves designations for areas other than those that we
had expressly held, in Barkers Five, required additional
review of the reserves factors or, at least, additional explanation for the designations. MLG and Springville contend
that was error. They point to our determinations in Barkers
Five that (1) LCDC erred in concluding that Multnomah
County had adequately considered the pertinent factors in
designating Area 9D as rural reserve, and (2) on remand,
“LCDC must determine the effect of that error on the designation of reserves in Multnomah County in its entirety.”
261 Or App at 347. Thus, MLG argues, “Metro and the counties should have reconsidered the regional reserve designations in their entirety,” specifically including designation of
property owned by MLG. Relatedly, Springville argues that
Multnomah County was required to reconsider, on remand,
its previous designation of Area 9B, even though we did not
remand that area for reconsideration in Barkers Five.
In response, Multnomah County asserts that “LCDC
determined correctly that [Barkers Five] did not require
reconsideration of all reserves in Multnomah County, but
instead required review for any resultant consequences (i.e.,
‘effect’) of the Area 9D error on other designations in the
county.” (Emphasis in original.)
We agree with the county. In Barkers Five, we
expressly stated, with respect to each of the errors that we
identified, the tasks that LCDC, Metro, and the counties
would have on remand. Those tasks varied in scope with
respect to designations in each of the counties. On one end of
the spectrum, we determined that Washington County had
erroneously applied rural reserve factors to designations
throughout the county. That is, the county’s overall “analysis
of the rural reserve factors was legally impermissible[.]”
Id. at 332. Accordingly, we observed, correction of that error
could have “pervasive consequences.”
Id. at 350. For that
reason, we required LCDC to “remand Washington County’s
reserves designation as a whole for reconsideration.
Id. at
333 (emphasis added).8 Moreover, because the Washington
County designations had to be remanded for reconsideration
8
That did not occur, of course, because the legislature itself subsequently
designated Washington County reserves through HB 4078.
742 Barkers Five, LLC v. LCDC
in their entirety, we declined to consider other challenges to
the existing reserves designations in that county. Id. at 333,
350.
We more narrowly described the consequences that
would follow remand associated with an error in Multnomah
County. We agreed with Barkers that LCDC had erred in
concluding that the county had adequately considered the
pertinent factors in designating Area 9D as rural reserve.
Id. at 340-47. That error was area-specific. It was not foundational like the Washington County error that necessitated reconsideration of urban and rural reserve designations throughout the county. Thus, we did not require that
Multnomah County reconsider its designations “as a whole,”
county wide. Instead, we explained that, on remand, LCDC
would need to “determine the effect of [the Area 9D] error
on the designation of reserves in Multnomah County in its
entirety.”
Id. at 347 (emphasis added).
On remand, LCDC did just that. It observed that
Multnomah County had addressed the Area 9D error
that we identified in Barkers Five by providing additional,
detailed explanation of why a rural reserve designation was
appropriate for all of Area 9D, despite certain dissimilarities between the northern and southern portions of that
area. The county next addressed what effect the previously
identified Area 9D error had “on the designation of reserves
in Multnomah County in its entirety,” consistently with our
instructions. Id. The county determined that the error had
no such effect, because correction of the error did not alter
the Area 9D rural reserve designation or the designation
of any other reserves in Multnomah County. LCDC agreed
with that analysis, determining “that there is no effect on
the designations of reserves in Multnomah County in its
entirety.” That determination, which we consider reasonable, satisfied our requirement that LCDC “determine” the
effect of the Area 9D error on remand. Nothing in Barkers
Five required reconsideration of urban and rural reserve
designations throughout Multnomah County. We are not
persuaded by MLG’s and Springville’s contrary arguments.
We have considered each of the additional arguments that petitioners make on judicial review, and we reject
Cite as 299 Or App 726 (2019) 743
those additional arguments without discussion. Accordingly,
we affirm LCDC’s 2018 acknowledgement order.9
Affirmed.
9
Respondents are the prevailing parties in this case. We have considered the
availability of an award of costs and have decided to exercise our discretion not to
award them.
