Marks v. LCDC

                                     708

      Argued and submitted November 16, 2022, reversed and remanded
                            September 7, 2023


                       David MARKS,
                          Petitioner,
                               v.
      LAND CONSERVATION AND DEVELOPMENT
                       COMMISSION,
            City of Lake Oswego, City of Tualatin,
      City of West Linn, Metro, and Clackamas County,
                         Respondents.
      Land Conservation and Development Commission
                           A175549
                                 

    Petitioner seeks judicial review of an order of the Land Conservation and
Development Commission (LCDC) denying his petition for an enforcement order
under ORS 197.320(12) related to two intergovernmental agreements (IGAs)
entered into by various public agencies. Petitioner contends that the public
agencies, through the IGAs, have unlawfully created contractual barriers to
the development and urbanization of the Stafford urban reserve by delaying the
adoption of concept plans. LCDC dismissed the petition, concluding that the two
IGAs were not decisions that are subject to an enforcement order under ORS
197.320(12) because the IGAs did not qualify as land use decisions under the
“significant impact test.” Held: The Court of Appeals concluded that LCDC erred.
The court concluded that the IGAs, which delay the completion and adoption of
concept plans, are likely to have a significant impact on land use.
   Reversed and remanded.



   E. Michael Connors argued the cause for petitioner. Also
on the briefs was Hathaway Larson LLP.
   Robert M. Wilsey, 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.
   Jeffrey G. Condit argued the cause for respondents City
of Lake Oswego, City of Tualatin, and City of West Linn.
Also on the brief were Jason T. Loos and Evan P. Boone and
Chad A. Jacobs.
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   Roger A. Alfred adopted the answering brief of respondents City of Lake Oswego, City of Tualatin, and City of
West Linn in its entirety for respondent Metro.
   Nathan K. Boderman and Stephen L. Madkour adopted
the answering brief of respondents City of Lake Oswego,
City of Tualatin, and City of West Linn in its entirety for
respondent Clackamas County.
  Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagan, Judge.
  SHORR, P. J.
  Reversed and remanded.
710                                                        Marks v. LCDC

         SHORR, P. J.
         Petitioner, a private landowner, seeks judicial review
of an order of the Land Conservation and Development
Commission (LCDC) denying his petition for an enforcement
order related to two intergovernmental agreements (IGAs)
entered into by various public agencies, including the cities of West Linn, Lake Oswego, and Tualatin (together, the
Cities). At bottom, petitioner’s contention is that the public
agencies have unlawfully created contractual barriers to the
development and urbanization of the urban reserve known
as Stafford.
         In the order on review, LCDC determined that the
two IGAs were not “ ‘decisions’ that are subject to an enforcement order under ORS 197.320(12),” because the IGAs did
not qualify as “land use decisions” under the “significant
impact test.”1 As described further below, even if a government decision does not meet the statutory test for being a
“land use decision” under ORS 197.015(10),2 under the significant impact test, a government decision that has a “significant impact on present or future land use” is a land use
   1
     ORS 197.320 provides:
       “The Land Conservation and Development Commission shall issue an
   order requiring a local government, state agency or special district to take
   action necessary to bring its comprehensive plan, land use regulation, limited
   land use decisions or other land use decisions or actions into compliance with
   the goals, acknowledged comprehensive plan provisions, land use regulations
   or housing production strategy if the commission has good cause to believe:
       “…
       “(12) A local government within the jurisdiction of a metropolitan service district has failed to make changes to the comprehensive plan or land
   use regulations to comply with the regional framework plan of the district
   or has engaged in a pattern or practice of decision-making that violates a
   requirement of the regional framework plan[.]”
   2
     ORS 197.015(10) provides, in part, that a “land use decision” includes:
       “(A) A final decision or determination made by a local government or
   special district that concerns the adoption, amendment or application of:
       “(i) The goals;
       “(ii) A comprehensive plan provision;
       “(iii)  A land use regulation;
       “(iv) A new land use regulation; or
       “(B) A final decision or determination of a state agency other than the
   commission with respect to which the agency is required to apply the goals; or
       “(C) A decision of a county planning commission made under ORS
   433.763[.]”
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decision. Billington v. Polk County, 

, 

 (1985). Thus, in effect, LCDC’s order determined
that, regardless of whether the public agencies unlawfully
created contractual barriers to the urbanization of Stafford,
petitioner could not obtain the relief he sought from LCDC.
         The first of the two IGAs at issue in this case—the
“5-Party IGA”—is an agreement between the Cities, Metro,3
and Clackamas County. The 5-Party IGA provides that no
part of the Stafford urban reserve will be incorporated into
Metro’s Urban Growth Boundary (UGB) unless the city that
will be responsible for annexing that part of Stafford develops a “concept plan” for it.4 The 5-Party IGA further provides
that the timing for completion of any concept plan for any
part of Stafford will be up to the annexing city. The second
IGA entered into by the Cities—the “3-Party IGA”—places a
temporary moratorium on the Cities adopting concept plans
for the Stafford area and on any of the Cities promoting
or supporting “any expansion of the UGB into any part of
Stafford.”
         On review before us, petitioner contends, among
other points, that “LCDC erred in determining the IGAs
do not qualify as land use decisions under the significant
impact test.”5 Petitioner argues that the Cities have historically been opposed to the urbanization of Stafford, and the
Cities having the “ability to indefinitely delay the Stafford
Area from being considered for inclusion in the UGB” by
delaying concept planning “will have a significant impact
on future land uses in the Stafford Area.” Respondents,
the Cities, Metro, and Clackamas County, take the position that the “ultimate question in terms of impacts on
future land uses is the decision whether the UGB will be
expanded to bring in Stafford,” and “that decision, under
     3
       As explained further below, Metro is a metropolitan service district established pursuant to ORS chapter 268.
     4
       Among other information, concept plans “show the general locations of any
residential, commercial, industrial, institutional and public uses proposed for the
area with sufficient detail to allow estimates of the cost of [certain specified] public systems and facilities.” Metro Code 3.07.1110(c)(1).
     5
       Petitioner also contends that LCDC “erred in interpreting ORS 197.320(12)
as only applying to land use decisions.” Because we conclude that the IGAs qualify as land use decisions under the significant impact test, we need not address
petitioner’s argument concerning the proper interpretation of ORS 197.320(12).
712                                                      Marks v. LCDC

state law, remains with Metro” notwithstanding the IGAs.
Therefore, in their view, the significant impact test is not
met. Respondent LCDC argues that to have a “ ‘significant
impact’ on future land uses, the impact of a decision cannot
be merely ‘potential,’ ” and petitioner’s significant impact
argument “contains nothing but potentialities” hinging on a
“hypothetical scenario where the cities, by delaying completion of their concept plans, prevent Metro from adding the
area to the urban growth boundary.”
        For the reasons below, we agree with petitioner
that the IGAs satisfy the significant impact test and that
LCDC erred in concluding that they did not. We reverse and
remand.
      I. LEGAL CONTEXT AND HISTORICAL FACTS
        Before turning to the pertinent historical facts and
procedural history, we provide an overview of the legal context in which this case arises, including the importance of
concept planning in Metro’s UGB analysis, because how
Metro utilizes concept plans is central to our analysis.
A.    Metro, the Urban Growth Boundary, and Concept Plans
         Metro is a metropolitan service district established pursuant to ORS chapter 268 that includes land in
Clackamas, Multnomah, and Washington counties. ORS
197.015(14); ORS 268.020(3). Metro is responsible for coordinating land use planning in that tri-county region. ORS
195.025; ORS 268.385. Among Metro’s responsibilities is the
justification, adoption, and securing of acknowledgement for
the metropolitan area UGB.6 See generally ORS 268.380-
268.390 (describing Metro’s planning and land use authority);
Sensible Transportation v. Metro. Service Dist., 

, 

, rev den, 

 (1990). The Land
Use Board of Appeals (LUBA) has observed that, in assigning Metro the responsibility for justifying, adopting, and
securing acknowledgment of the metropolitan area UGB,
the Oregon Legislative Assembly “presumably determined

    6
      Statewide Planning Goal 14 provides that “growth boundaries shall be
established and maintained by cities, counties and regional governments to provide land for urban development needs and to identify and separate urban and
urbanizable land from rural land.”
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adoption and administration of the metropolitan area UGB
required Metro’s unique regional perspective, rather than
leaving adoption and administration of the UGB to the large
number of cities and counties making up the metropolitan
area.” Sensible Transportation, 

 (internal
quotation marks omitted).
        As part of its UGB-related responsibilities, Metro
must conduct a review of the metropolitan area UGB every
six years to ensure that it continues to maintain a 20-year
supply of urbanizable land within the UGB. ORS 197.299.
If Metro determines that the land supply is inadequate, it
must expand the UGB or take other measures to ensure that
the identified need can be accommodated. ORS 197.296(6);
ORS 197.299(2).
         “Urban reserves” are lands outside of a UGB that
will provide for “future expansion [of the UGB] over a long-term period” and ensure “[t]he cost-effective provision
of public facilities and services within the area when the
lands are included within” the UGB. ORS 195.137(2). ORS
195.145(4)(b) provides for designation of urban reserves
to accommodate population and employment growth for
at least 20 years, and not more than 30 years, beyond the
20-year land supply accommodated within the UGB. Once
designated, urban reserve lands become “first priority” for
inclusion within the UGB. ORS 197.298(1)(a).
        In considering where to expand the UGB, Metro’s
analysis must comply with, among other laws, Goal 14,
which includes four “location” factors that Metro must consider when determining which urban reserve land to add to
the UGB. The four location factors are “(1) [e]fficient accommodation of identified land needs; (2) [o]rderly and economic
provision of public facilities and services; (3) [c]omparative
environmental, energy, economic and social consequences;
and (4) [c]ompatibility of the proposed urban uses with
nearby agricultural and forest activities occurring on farm
and forest land outside the UGB.”7
   7
     Goal 14 also includes two “need factors”:
       “(1) Demonstrated need to accommodate long range urban population,
   consistent with a 20-year population forecast coordinated with affected local
714                                                        Marks v. LCDC

          Although Goal 14 does not mention that the existence of a “concept plan” should play a role when determining which urban reserve land should be added to the UGB,
Metro Code (MC) 3.07.1425 sets forth “factors and criteria
for amendment of the UGB,” which include “whether the
area has been concept planned.”
          The requirements for the contents of “concept
plans,” as that term is used by Metro, are set forth at MC
3.07.1110(c). Among other information, as noted above, concept plans must “show the general locations of any residential, commercial, industrial, institutional and public uses
proposed for the area with sufficient detail to allow estimates of the cost of [certain specified] public systems and
facilities.” 

 Concept plans are used to “guide, but not bind”
(1) “conditions in the Metro ordinance that adds the area to
the UGB” and (2) “amendments to city or county comprehensive plans or land use regulations following addition of the
area to the UGB.” MC 3.07.1110(d).
          Under MC 3.07.1110(a), concept plans are generally
required before land is added to the UGB: MC 3.07.1110(a)
provides that the “county responsible for land use planning
for an urban reserve and any city likely to provide governance or an urban service for the area, shall, in conjunction with Metro and appropriate service districts, develop
a concept plan for the urban reserve prior to its addition to
the UGB.” (Emphasis added.) The date for completion of a
concept plan and the area of urban reserves to be planned
under MC 3.07.1110(a) is jointly “determined by Metro and
the county and city or cities.”
          The Metro Code provides an exception to the general requirement that concept planning occur before land is
added to the UGB. Specifically, MC 3.07.1110(e) provides:
   governments, or for cities applying the simplified process under ORS chapter
   197A, a 14-year forecast; and
        “(2) Demonstrated need for housing, employment opportunities, livability or uses such as public facilities, streets and roads, schools, parks or
   open space, or any combination of the need categories in this subsection (2).
   In determining need, local government may specify characteristics, such as
   parcel size, topography or proximity, necessary for land to be suitable for an
   identified need. Prior to expanding an urban growth boundary, local governments shall demonstrate that needs cannot reasonably be accommodated on
   land already inside the urban growth boundary.”
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        “If the local governments responsible for completion of a
    concept plan under this section are unable to reach agreement on a concept plan by the date set under subsection
    (a), then the Metro Council may nonetheless add the area
    to the UGB if necessary to fulfill its responsibility under
    ORS 197.299 to ensure the UGB has sufficient capacity to
    accommodate forecasted growth.”
          In the proceeding below, Metro explained that it
added the provision in MC 3.07.1110(a) requiring concept
plans prior to land being added to the UBG to “ensure[ ] that
there is a plan for future development, including estimated
costs of infrastructure and potential methods for financing,”
and also to “ensure[ ] there is a city that is willing and able
to annex and govern a proposed expansion area so that it
can actually be developed.” The concept planning requirement in MC 3.07.1110(a) was added by Metro in the “wake
of its large UGB expansion in 2002, which added approximately 12,000 acres in the Damascus area that have still
mostly failed to urbanize.”8
        Additionally, in a staff report to LCDC as part of
this proceeding, the Department of Land Conservation and
Development (DLCD) explained that Metro cannot avoid
the requirements of Goal 14 that it study all urban reserve
lands for inclusion in the metropolitan UGB by using the
concept planning requirements in its own code, but that it
could use concept planning as a consideration under Goal
14:
    “Metro cannot use the concept plan requirement [in MC
    3.07.1110] to avoid the requirement of Goal 14 and OAR 660
    Division 24 that it study all urban reserve lands, including
    the Stafford Area, for inclusion in the Metro UGB at the
    time of a UGB expansion analysis, and analyze such lands
    using the four factors for such an analysis found in Goal
    14. However, Metro does have the option of using the adoption of a concept plan as a strongly determining factor in
    its analysis of the four UGB expansion factors in Goal 14,
    which emphasizes as a policy priority Metro’s review under
    8
      In their briefing on review before us, the Cities explain that “the inability
of the City of Damascus to agree on a comprehensive plan and land use regulations to urbanize ultimately resulted in its disincorporation (after multiple
attempts, litigation, and legislative intervention).” (Citing City of Damascus v.
State of Oregon, 

, 

 (2020).).
716                                                       Marks v. LCDC

     the second Goal 14 location factor, ‘orderly and economic
     provision of public facilities and services.’ ”
        In the staff report, DLCD further explained, with
regard to a recent expansion of the metropolitan area UGB,
Metro gave “decisive weight” to whether a concept plan had
been adopted by various cities in determining whether to
add land near those cities to the UGB, and that that methodology was approved by LCDC:
         “In January 2020, [LCDC] approved a 2,100 acre Metro
     UGB expansion which utilized Metro’s methodology. The
     commission found that the methodology, as applied by
     Metro, was consistent with Goal 14, relevant state statutes,
     and Metro’s own code and Regional Framework Plan. Metro
     received four applications from cities within its boundaries
     (Beaverton, Hillsboro, King City, and Wilsonville) for a UGB
     expansion for which that city would take responsibility. All
     four cities submitted concept plans providing details on the
     proposed urban communities that would result. Metro also
     completed a technically sufficient analysis under Goal 14 of
     all of its urban reserve areas, … but gave decisive weight
     to the adoption of the concept plans by these four cities as
     demonstrating that lands within these concept plan areas
     were best suited for UGB expansion.”
(Emphases added.)
B.    The Stafford Urban Reserve
         In 2010, Metro and Clackamas, Multnomah, and
Washington counties adopted joint and concurrent decisions
designating urban reserves under ORS 195.137 to 195.145
and OAR 660-027-0050. Barkers Five, LLC v. LCDC, 

, 

 (2014) (“Ultimately, the designation of reserves occurs through agreements between Metro
and a county.”).
         One such reserve was the Stafford area, which
consists of approximately 6,000 acres of the approximately
23,000 acres of Metro’s urban reserves—that is, the Stafford
area makes up over 25 percent of Metro’s urban reserves.
The Stafford area contains land both to the north and south
of the Tualatin river.9
    9
      The Metro decision designated as urban reserve Study Area 4A (Stafford),
4B (Rosemont), 4C (Borland), and 4D (Norwood), which we refer to collectively as
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         After LCDC issued a final order approving Metro’s
decision to designate Stafford as an urban reserve, the cities
of West Linn and Tualatin, who opposed the designation,
were among multiple parties that sought judicial review in
this court.10 On judicial review, we concluded that LCDC’s
order was “unlawful in substance because LCDC has failed
to demonstrate that it adequately reviewed Stafford’s urban
reserve designation for substantial evidence.” Barkers Five,
LLC, 

. We noted that, on remand, “LCDC
must demonstrate that it properly reviewed Stafford’s designation as urban reserve for substantial evidence.” 

.
C. Remand and the 5-Party IGA
         After our remand in Barkers Five, LLC, the Cities, as
well as Metro and Clackamas County, executed the 5-Party
IGA. The recitals in the 5-Party IGA recognized that the
Cities had long opposed the designation of Stafford as an
urban reserve and reflect that the parties to the 5-Party
IGA entered into it “in order to alleviate the concerns of the
Cities and better support the designation of Stafford … by
ensuring an orderly process for any urbanization of Stafford
where the Cities will have control over the planning, process
and timing for the urbanization of Stafford.” In consideration for the promises and commitments made by Metro and
Clackamas County in the 5-Party IGA, the Cities agreed
that they would “not challenge the designation of Stafford
as Urban Reserve either before the State of Oregon Land
Conservation and Development Commission or by appeal to
the Oregon Court of Appeals.”
        Substantively, the 5-Party IGA provides that the
parties to it agree that “Stafford will be governed by one
or more of the Cities upon expansion of the urban growth
boundary and annexation”; the “governing City will have

“Stafford” in this opinion. As explained by the Cities on appeal, Stafford (4A) and
Rosemont (4B) are located north of the Tualatin River, adjacent to Lake Oswego
and West Linn; Borland (4C) is located south of the Tualatin River and mostly
north of I-205 between Tualatin and West Linn; and Norwood (4D) is located
south of I-205, adjacent to Tualatin.
    10
       The City of Lake Oswego did not participate in the judicial review proceeding in Barkers Five, LLC, but did oppose the urbanization of Stafford. 

 n 17, 357.
718                                               Marks v. LCDC

the authority to decide what land uses should be planned
for, and when and how municipal services will be provided”;
and that, “Metro and the County will oppose any future
effort to incorporate a new city.” The 5-Party IGA further
provides that, “[p]rior to adding any part of Stafford to the
UGB, the City that will be responsible for annexing that
part of Stafford must first have developed a concept plan
for the area describing how the area will be planned and
developed after inclusion in the UGB”; that the “timing for
commencement and completion of a concept plan will be up
to the City”; that “each governing City will be responsible
for determining the pace and timing of future development
within an area to be incorporated into the UGB”; and that
the parties will “participate in good faith in future planning
efforts for Stafford.”
         Further, the 5-Party IGA provided that a $170,000
grant from Metro would be used to study and plan for transportation and other public infrastructure conditions and
needs in the Stafford area, which was expected to “begin
once Metro and the County have finalized the decision on
urban reserves.” The grant, which was originally approved
in 2015, was for a “Stafford Area Preliminary Infrastructure
and Feasibility Assessment” that would be the “first step in
strategic planning for the Stafford area, to answer important questions before the Concept Planning is undertaken.”
That is, the purpose of the grant was to “inform subsequent
concept planning” for the Stafford urban reserves.
        The 5-Party IGA was part of the basis for the findings by Metro reapproving the designation of the Stafford
area as urban reserve after our decision in Barkers Five,
LLC. Specifically, Metro’s findings in support of the designation of Stafford state:
   “The Cities of Lake Oswego, Tualatin, and West Linn
   have testified extensively regarding their concern that
   designation of Stafford as urban reserve will create pressures for urbanization before the required public facilities,
   particularly with regard to transportation, are planned
   for and can support urban development. This concern is
   based upon the fact that designation of Stafford as urban
   reserve will make it first priority for inclusion in the Metro
   UGB under ORS 192.298 and the fact that Metro must
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  consider expansion of the Metro UGB every six years under
  ORS 197.299. So even though the planning period for urban
  reserves is twenty to fifty years into the future, Stafford
  will become eligible for inclusion each time Metro considers an urban growth boundary expansion. To alleviate
  these concerns Metro, Clackamas County, and the three
  Cities have entered into a five-party intergovernmental
  agreement (‘IGA’) that provides for governance of Stafford
  by the cities, requires concept planning and public facilities planning prior to the addition of Areas 4A, 4B and/or
  4C to the urban growth boundary, and a requirement for
  robust citizen involvement and preservation of community
  character pursuant to the concept planning process. This
  IGA, which is incorporated into the record, will ensure that
  Stafford ‘can be developed at urban densities in a way that
  makes efficient use of existing and future public infrastructure investments,’ ‘can be served by . . . urban level public
  facilities and services efficiently and cost-effectively by
  appropriate and financially capable service providers,’ and
  ‘can be designed to preserve and enhance natural ecological systems’ and ‘important natural landscape features.’
  Acknowledging the constraints to urbanization discussed
  above, the existence of the IGA and the promises contained
  therein is necessary to support the determination by Metro
  and Clackamas County that the designation of Stafford
  Areas 4A, 4B and 4C as urban reserve is, on balance,
  supportable under the urban reserve factors contained in
  ORS 195.145(5) and OAR 660-027-0050.”
        On May 16, 2018, LCDC acknowledged Metro’s designation of Stafford as an urban reserve.
D. The 3-Party IGA
        In February 2019, after LCDC had acknowledged
Metro’s designation of Stafford as an urban reserve, the
Cities entered into the 3-Party IGA. The recitals to the
3-Party IGA reflect the view that the 3-Party IGA “implements the Five-Party IGA and, therefore, is necessary to
support the determination by Metro and Clackamas County
that the designation of Stafford as an urban reserve is supportable under the urban reserve factors contained in ORS
195.145(5) and OAR 660-027-0050.”
         As relevant to the issues on review, substantively, the 3-Party IGA provides that the Cities amongst
720                                               Marks v. LCDC

themselves agree that a “key piece of infrastructure that
must be planned for and funded before the parties can
complete meaningful concept planning is the widening of
Interstate 205 to three lanes in each direction from Oregon
City to Stafford Road and the replacement or reconstruction
of the Abernethy Bridge (‘I-205 Widening Project’),” which
“will have to be a regional project funded by state and federal funds.” Therefore, the Cities agreed that
   “no Party will complete or adopt any concept plan for any
   part of Stafford under Title 11 of the Metro Urban Growth
   Management Functional Plan …, or that otherwise constitutes a concept plan under the terms of the Five-Party
   Agreement, or that otherwise constitutes a criterion for UGB
   expansion, nor will any Party apply for, promote or support
   any expansion of the UGB into any part of Stafford, until[:]
      “1.3.1 South of Tualatin River. For any concept plan
   proposal involving a portion of Stafford that is south of the
   Tualatin River:
      “(a) The I-205 Widening Project has received preliminary design approval; and
      “(b) Funds to construct the I-205 Widening Project have
   been identified and appropriated; and
      “(c) Construction of the I-205 Widening Project is scheduled to begin in two years or less.
      “1.3.2 North of the Tualatin River. For any concept plan
   proposal involving any portion of Stafford that is north of
   the Tualatin River, the later of:
      “(a) December 31, 2028; or
      “(b) until all the conditions in subsections 1.3.1 (a), (b)
   and (c) are met.”
(Boldface in original.)
        Additionally, the 3-Party IGA provides concept
planning criteria in addition to those in the Metro Code. It
provides that
      “In addition to concept planning criteria under Metro
   Code Section 3.07.1100, … the Parties agree that the following criteria will apply to Stafford area concept plans:
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       “(a) Consider community character;
     “(b) Provide separation between communities and
   understandable borders;
       “(c) Preserve natural features;
      “(d) Maintain functionality of transportation and other
   systems. Unless mitigated and addressed as provided in
   Section 2.2, no material impairment or degradation of the
   functionality of a transportation or utility facility or system of another Party.”
         Following entry into the 3-Party IGA—which, as
noted, delayed completion or adoption of concept plans for the
Stafford area north of the Tualatin river until December 31,
2028, at the earliest—Metro sent a letter to the Cities stating that the 3-Party IGA “calls into question the continued relevance of the 2015 grant award, which was specifically intended to assess the demands that urban growth in
Stafford would place on currently existing infrastructure in
order to inform concept planning” and that Metro would not
fund the grant so as to not spend “public funds on a study
that is likely to no longer be relevant if and when concept
planning for Stafford does occur.” The letter encouraged the
Cities to pursue a new grant in the future, “perhaps with
a broader scope that more accurately reflects the current
agreement regarding how and when planning for Stafford
will proceed.”
E. The Enforcement Proceeding
         On February 6, 2020, petitioner, who owns property in the Stafford area and is “concerned that the Cities
are improperly preventing the Stafford Area from being
included in the UGB,” filed a petition for an enforcement
order pursuant to ORS 197.320(12). The petition alleged
that Metro, Clackamas County, and the Cities had engaged
in a pattern or practice of decision-making that violates the
requirements of Metro’s Regional Framework Plan (RFP)
with respect to the concept planning process for the Stafford
Area.11 ORS 197.320 provides:
   11
      “A regional framework plan is essentially a master plan that incorporates
and coordinates Metro’s various functional plans.” 1000 Friends of Oregon v.
Metro, 

, 419 n 10, 

 (2001) (internal quotation marks
omitted).
722                                             Marks v. LCDC

       “The Land Conservation and Development Commission
   shall issue an order requiring a local government, state
   agency or special district to take action necessary to bring
   its comprehensive plan, land use regulation, limited land
   use decisions or other land use decisions or actions into
   compliance with the goals, acknowledged comprehensive
   plan provisions, land use regulations or housing production
   strategy if the commission has good cause to believe:
      “…
       “(12) A local government within the jurisdiction of a
   metropolitan service district has failed to make changes
   to the comprehensive plan or land use regulations to comply with the regional framework plan of the district or has
   engaged in a pattern or practice of decision-making that
   violates a requirement of the regional framework plan[.]”
        Petitioner requested that LCDC adopt an
Enforcement Order requiring the Metro, Clackamas County,
and the Cities to (1) “nullify and invalidate” the 3-Party IGA
and (2) amend and clarify the 5-Party IGA “to ensure that
the concept planning process for the Stafford Area will be
implemented in a manner consistent with the applicable
statutes, administrative rules and MC Chapter 3.07, Title
11.”
         On May 27, 2020, LCDC found good cause to proceed to a contested-case hearing to determine whether the
IGAs constitute a pattern or practice of decision-making
that violates Metro’s Regional Framework Plan under ORS
197.320(12). LCDC asked the hearings officer to address four
legal questions, only one of which is central to our analysis:
whether the IGAs are “decisions” subject to an enforcement
action under ORS 197.320(12).
        The hearings officer concluded that they were,
reasoning:
   “the IGAs are decisions that are subject to ORS 197.320(12)
   only if they are land use decisions. The IGAs are not statutory land use decisions [under ORS 197.015], but they are
   significant impacts test land use decisions. Therefore, the
   IGAs are decisions that are subject to ORS 197.320(12).”
Cite as 

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         Specifically, in concluding that the IGAs were “significant impacts test land use decisions,” the hearings officer reasoned:
   “The Stafford Area is a very large area. The Stafford Area
   contains over 25% of the current urban reserves. If the
   Stafford Area is not added to the UGB then other areas will
   have to be added. There are no other urban reserves near
   the Cities, so if the Stafford Area is not urbanized there
   would likely be little to no urbanization near the Cities.
   Whether or not properties in the Stafford Area will be able
   to add housing and/or other urban uses would have a significant impact on the use of those properties. Whether or
   not the Stafford Area is urbanized will in my opinion have
   very significant impacts. That is the one of the reasons
   there is so much controversy and litigation over the issue.”
         The hearings officer also rejected an argument by
the Cities that the IGAs were not land use decisions under
the significant impacts test because “the impacts of the
IGAs on land uses are only speculative.” The hearings officer reasoned:
   “[T]o qualify as a significant impacts land use decision the
   decision must have a certain versus potential impact and
   have a significant impact rather than merely some impact.
   Granting the Cities unilateral authority to determine the
   process for bringing the area into the UGB is more than
   a potential impact. While there is no guarantee that the
   Stafford Area would be brought into the UGB in the next
   ten years, preventing the Stafford Area from even being
   considered would have cascading effects on other areas to
   be considered and the availability of housing for the Cities.
   … In the present case, I think the future impacts would
   certainly be significant rather than merely some impact.”
(Footnote omitted.)
         Having determined that the significant impact test
rendered the 5-Party IGA and the 3-Party IGA land use
decisions, the hearings officer considered the merits of petitioner’s case and determined that petitioner had not proven
his case, because neither the 5-Party IGA nor the 3-Party
IGA violate the RFP.
724                                              Marks v. LCDC

         In LCDC’s order from which petitioner now seeks
judicial review, LCDC noted that the hearings officer had
identified “no disputed facts necessary to resolve this matter,” and that in its view the issues presented were “legal
questions.” It agreed with the hearings officer that the IGAs
are decisions that are subject to ORS 197.320(12) only if they
are land use decisions, but did not “adopt the recommended
conclusion of law or reasoning of the Hearings Officer that
the IGAs are significant impact test land use decisions.”
LCDC noted that “for an action to be a significant impact
test land use decision”:
   “ ‘the decision must create an actual, qualitatively or quantitatively significant impact on present or future land uses.
   Further, the expected impacts must be likely to occur as a
   result of the decision, and not simply speculative.’ ”
(Quoting Carlson v. City of Dunes City, 28 Or LUBA 411, 414
(1994).)
         LCDC then concluded that “the IGAs are not [significant impact test] land use decisions because the IGAs
do not ‘create an actual, qualitatively or quantitatively
significant impact on present or future land uses.’ ” LCDC
explained:
       “First, the IGAs make no change to the area’s land use
   designation. The Stafford Area is an acknowledged urban
   reserve area designated under ORS 195.145 and thus is
   the first priority of land for inclusion within the Metro
   regional urban growth boundary. ORS 197.298(1)(a); OAR
   660-027-0070(1). Present land uses are regulated by the
   Commission’s rules …; thus, those rules, not either IGA
   control present land uses of the Stafford Area. Second, the
   Hearings Officer determined that the IGAs do not violate
   the RFP provisions that govern the planning for future
   uses of the Stafford Area. As such, the Commission concludes that the IGAs do not create an actual, qualitatively
   or quantitatively significant impact on future land uses.”
         Regarding future land use, LCDC further explained:
      “The Commission disagrees that the IGAs determine
   ‘whether or not the Stafford Area is urbanized’ and concludes that the IGAs do not create an actual, qualitatively
   or quantitatively significant impact on future land uses.
Cite as 

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  The future urbanization of the Stafford Area must comply
  with state law. By way of short synopsis, state law requires
  Metro to identify and accommodate its need for housing, employment opportunities, and livability within the
  regional urban growth boundary. Goal 14; ORS 197.296.
  If the identified need cannot reasonably be accommodated
  on land already inside the regional urban growth boundary, Metro must determine which land to add by evaluating
  alternative urban growth boundary locations consistent
  with the priority of land specified in ORS 197.298 and the
  boundary location factors of Goal 14. OAR 660-024-0060(1).
  As noted above, because the Stafford Area is an acknowledged urban reserve area it is among the first priority of
  land for inclusion within the Metro regional urban growth
  boundary. ORS 197.298(1)(a); OAR 660-027-0070(1). As
  such, Metro must consider and balance the boundary location factors of Goal 14 for the Stafford Area urban reserves
  for comparison to other urban reserves in the alternative
  boundary locations and ultimately to determine the Metro
  UGB location. OAR 660-024-0060(3).
      “Nothing in the IGAs prohibits Metro from including the Stafford Area in the required boundary location
  analysis, nor could either IGAs lawfully do so. If Metro
  determined that inclusion of all or part of the Stafford Area
  is necessary to fulfill its responsibility under ORS 197.299,
  the Commission understands Metro to have retained that
  authority under the Regional Framework Plan. See MC
  3.07.1110(e) (Metro may add an area to the regional urban
  growth boundary absent a concept plan to satisfy state law
  requirements).
      “At most, the Commission concludes that the IGAs
  demonstrate coordination on a preferred timing for future
  urban land uses. Metro ultimately has responsibility under
  state law to coordinate, evaluate urban reserves for consideration, and under the Regional Framework Plan to
  move ahead in the absence of a concept plan if necessary to
  fulfill its obligations under state law. Metro has statutory
  power to require cities and counties to change their plans
  to conform to Metro’s plans. ORS 268.380; ORS 268.390;
  Citizens for Better Transit v. Metro Service Dist., 15 Or
  LUBA 482, 487 (1987). Thus, the Commission does not find
  that [petitioner] has established that the IGAs are significant impact land use decisions. … [T]he Commission concludes that based on the foregoing discussion, it is evident
726                                             Marks v. LCDC

   that the IGAs do not significantly impact present or future
   land uses because such actual uses are determined under
   existing state law, regardless of the IGAs. Therefore, the
   Commission determines that the 3-Party and 5-Party IGAs
   are not ‘decisions’ that are subject to an enforcement order
   under ORS 197.320(12).”
         Thus, LCDC concluded that because state law governs land use in the Stafford area, the IGAs could not have
a significant impact. And, having determined that the IGAs
did not meet the significant impact test, LCDC declined to
address whether the IGAs constitute a “series of decisions”
that in turn constitute a “pattern or practice” of decision
making, whether “Metro and Clackamas County [are] considered parties to a ‘series of decisions’ that constitute a
‘pattern or practice’ of decision-making pursuant to ORS
197.320(12),” and whether the “3-Party IGA violates a provision of Metro’s Functional Plan.”
        Petitioner now seeks judicial review of LCDC’s
order, contending that “LCDC erred in determining the
IGAs do not qualify as land use decisions under the significant impact test.” We agree with petitioner.
               II. STANDARD OF REVIEW
       Judicial review of the order in this case is governed
by ORS 197.335(2), which provides, in pertinent part,
   “Upon review, an appellate court may affirm, reverse, modify or remand the order. The court shall reverse, modify or
   remand the order only if it finds:
      “(a) The order to be unlawful in substance or procedure,
   but an error in procedure is not cause for reversal, modification or remand unless the court finds that substantial
   rights of any party were prejudiced thereby[.]”
        The “unlawful in substance” review standard is for
“a mistaken interpretation of the applicable law.” Mountain
West Investment Corp. v. City of Silverton, 

, 

 (2001); see also Dimone v. City of Hillsboro,

, 6 n 5, 

 (2002) (noting the “unlawful
in substance” standard “is the functional equivalent of the
‘erroneously interpreted a provision of law’ standard in ORS
Cite as 

 (2023)                                                727

183.482(8)(a) that is applicable to our review of an order in a
contested case issued by a state administrative agency”).
                             III.    ANALYSIS
        We begin our analysis by summarizing the “significant impact test” for determining when a decision that does
not meet the statutory test for being a “land use decision”
under ORS 197.015(10) is nevertheless a land use decision.
We then turn to summarizing the parties’ arguments and
explaining why we believe LCDC erred in determining that
the IGAs were not subject to an enforcement proceeding
under ORS 197.320(12).
A.    The Significant Impact Test
         In Oregon, “there are two tests to determine
whether a decision is a land use decision: (1) The statutory
test defined by ORS 197.015(10), and (2) The significant
impact test … for decisions not expressly covered in a land
use norm.” Billington, 

. The “significant impact
test” was “devised to supplement the legislative grant of
jurisdiction …, by making some land use actions reviewable that do not meet the statutory definition of a ‘land use
decision.’ ” Oregonians in Action v. LCDC, 

, 

 (1990). “The significant impact test is a
determinant of jurisdiction, not of the merits of a review.”12
Wagner v. Marion County, 

, 

,
rev den, 

 (1986).
         The significant impact test is deceptively easy to
articulate: A decision which has a “significant impact on
present or future land use” satisfies the test and is a land
use decision. See, e.g., Hemstreet v. Seaside Improvement
Commission, 

, 

 (1988) (articulating significant impact test). Thus, by its terms, the test
is not satisfied where a decision merely “would have potential impact,” “would affect,” or “would have any impact” on
current or future land uses. Billington, 

 (“In
this case, the test that should have been used is the significant impact test rather than ‘would have potential impact,’
‘would affect’ or ‘would have any impact’ on current or future
   12
      Of course, “[t]he evaluation of the threshold element needed for jurisdiction
may overlap petitioner’s claim on the merits.” Billington, 

.
728                                            Marks v. LCDC

land uses.”). Further, as articulated by LUBA, under the
significant impact test, the “expected impacts must be likely
to occur as a result of the decision, not speculative.” Phillips
v. Polk County, ___ Or LUBA ___, ___ (LUBA No 2023-014,
Apr 2023) (emphasis added). Although LUBA decisions are
not binding on this court, we agree with that articulation by
LUBA.
         Notwithstanding the seeming ease with which the
significant impact test can be articulated, it is a “ ‘nebulous standard.’ ” Billington, 

 (quoting City of
Pendleton v. Kerns, 

, 

 (1982)).
As noted in Kerns, “[w]hereas some decisions, such as to
resurface a street or repair potholes, have only a de minimis impact on land use, and some, such as to construct a
major arterial road or a bridge, have a substantial impact, a
large number of a city’s day-to-day decisions regarding public works and roads fall in between.” Kerns, 

.
        By way of background for our analysis, we begin
with an explanation of how the significant impact test has
been applied historically.
          In Kerns, one of the first cases involving the significant impact test, the Supreme Court recognized that a decision that “effects a significant change in the land use status
quo of the area” meets the significant impact test. 

. There, the court upheld LUBA’s determination that it
had jurisdiction to review a city ordinance that authorized
the improvement of an already dedicated but unimproved
city street. 

. The street was designated in the city’s
comprehensive plan as a minor neighborhood street, and the
city’s decision would have opened the street as a major access
route to two large undeveloped subdivisions. 

 The court
concluded that the ordinance did not contemplate merely a
“de minimis street improvement project” but would “effect[ ]
a significant change in the land use status quo” and was
therefore reviewable by LUBA. 

; see also Harding
v. Clackamas County, 

, 

(1988) (LUBA did not err in concluding that vacating portion of improved county road was subject to LUBA review
because it had a significant impact on present or future land
uses in the area based on LUBA’s finding that vacating the
Cite as 

 (2023)                                                  729

road “alters the existing traffic pattern of nearby property
owners having a right of access to the street”).
          Subsequent to Kerns, our case law made clear that,
at least in some instances, a decision not to change the use of
land can have a significant impact. In 1000 Friends of Ore.
v. Wasco Co. Court, 

, 

, rev den,

 (1983) (Wasco County I), relying on the Supreme
Court’s analysis in Kerns, we reversed and remanded an
order in which LUBA determined that it lacked jurisdiction
over an order of the Wasco County Court granting a petition for incorporation of the City of Rajneeshpuram, fixing
boundaries of the proposed city, and setting a date for a special election on the matter of incorporation. We determined
that “the county’s decision to authorize an incorporation election is a land use decision subject to LUBA review” because
“[i]mplementation of the county’s decision is the election to
incorporate, to set urban boundaries and to effect a transition from rural to urban land use,” which would “have a significant impact if, as appears reasonably possible, the voters
elect to incorporate: land that could not before have been
used for urban use would be available for future urban use.”
Id. at 81-82. We also observed, however, that “[i]f the voters defeat incorporation, no land will be available for urban
use,” and although that would “maintain the status quo, it
would nevertheless have significant impact on future uses
and planning activities.”13 Id. at 82 n 7.

     13
        After our remand in Wasco County I, in a subsequent judicial review proceeding, the Supreme Court determined that incorporation of a new city is a
“land use decision” under ORS 197.015(10). See 1000 Friends of Oregon v. Wasco
County Court, 

, 

 (1985) (Wasco County II). In doing so,
the court also concluded that a county approval of an incorporation petition has
a “significant impact on present or future land use” under the standard set forth
in Kerns:
     “Under the express terms of ORS 221.040(3), once a county approves the
     incorporation petition, the county ‘shall make an order fixing a date for a
     special election relating to the incorporation of the proposed city.’ At that
     point, the process passes out of the county’s control and into the hands of the
     electorate. Therefore, the ‘final’ decision by the county concerning the applicable goals, the only decision by the county concerning the creation of a new
     city which has a ‘significant impact on present or future land use,’ see City of
     Pendleton v. Kerns, 

, 

 (1982), occurs when
     the county approves the petition and authorizes the election.”
Wasco County II, 299 Or at 359 (emphasis in original).
730                                                      Marks v. LCDC

         Then, in Wagner, we were expressly confronted
with the question of how to apply the significant impact test
in the face of a government body’s decision “not to change
an existing situation.” 

. In that case, the
county approved two partitioning requests and as part of the
resolutions approving the partitions, the county restricted
access to a public road from the divided parcels. 

. Eight years later, the petitioner conveyed five acres of
land within the area subject to the access restriction and
requested a “lot line adjustment” from the county. 

 As
part of that request, the petitioner sought permission from
the county for the buyer of the parcel to use the public road.

 The county granted the lot line adjustment but denied
the request for road access. 

 LUBA concluded that the
county’s action did not have a “significant impact on present
or future land uses” in the area and that it therefore did not
qualify as a “land use decision,” explaining:
       “In this appeal, we have considerable difficulty applying
   the significant impact test. As we construe the decision,
   the county refused to waive or rescind previously adopted
   orders. This has the effect of maintaining the status quo.
   The significant impact test does not appear to contemplate
   a situation in which the status quo is maintained by rejection of a proposal to waive or rescind a prior order.
       “Even if the significant impact test could be applied to
   the circumstances here, we believe petitioners have not
   demonstrated that the test is met. As noted, the decision
   maintains, rather than alters the status quo in this area.
   The petition does not demonstrate why the county’s refusal
   to allow requested access will have a significant impact on
   present or future land use in the area.”

 (emphases in original; internal quotation marks omitted).
        We stated that, although we shared LUBA’s view
that the “ ‘significant impact test’ is difficult to apply here,”
we did “not agree that the perpetuation of the restriction
necessarily perpetuates the status quo because at least one
other factor has changed since the access restriction was

    In view of the Supreme Court’s holding in Wasco County II, we note that our
jurisdictional holding in Wasco County I was based on the “significant impact
test” rather than on the “land use decision” statutory test of ORS 197.015(10).
Sensible Transportation, 

 n 5 (so stating).
Cite as 

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established”—viz., “[a]fter the county imposed the restriction, it rezoned the area from low density residential to an
exclusive farm use designation.” Id. at 235-36 (emphases in
original). We went on to hold that, although we were not
answering the jurisdictional question, “LUBA’s decisional
premise, that a decision not to change an existing situation
cannot have a significant impact, no matter what related
changes have occurred since the situation came into being,
is not a satisfactory basis for answering the question.” Id. at
236 (emphasis in original).
         Nevertheless, it is also clear from case law that a
mere “proposed” change to land use that is contingent on
future events does not satisfy the significant impact test.
In Hemstreet, we affirmed a LUBA order dismissing for
lack of jurisdiction an appeal from a decision of the Seaside
Improvement Commission—the governing body of a renewal
district—accepting the respondent’s proposal rather than
petitioner’s competing proposals to lease the air space over
certain property owned by the district. 

. The
decision stated, “Motion to accept [respondents’ proposal],
based on further details to be agreed upon by the attorneys
and Administrative Officer, and subject to the approval of
the Improvement Commission; carried.” 

 (emphasis
in original). On review, we agreed with LUBA that the decision had “no more than a potential impact on future land
use and that it therefore does not come within the significant impact test.” 

. We explained that that was
so because the decision was “contingent with respect to the
eventual use of the space as it is with respect to the award
of the lease.” 

.
          Similarly, in Crist v. City of Beaverton, 

, 

 (1996), we affirmed LUBA’s determination
that it lacked jurisdiction over an appeal concerning a “pre-annexation agreement” relating to property in unincorporated Washington County, where respondent sought to locate
and operate a planned unit development. We concluded that
the preannexation agreement was not a significant impact
land use decision, because the agreement “merely says that
something will be done, if the conditions precedent for it are
satisfied.” 

; see also Sensible Transportation, 100
732                                           Marks v. LCDC

Or App at 566, 570 n 5 (holding that an update to Metro’s
functional regional transportation plan recommending
Washington County conduct “appropriate studies and consider whether to amend its comprehensive plan to provide
for the construction of a ‘Western Bypass’ freeway corridor”
was “inconsistent with LUBA’s having jurisdiction under
the significant impact test” due to the “totally contingent
nature of the update”).
B.    The Parties’ Arguments
         With that understanding of the significant impact
test, we turn to the parties’ arguments. As noted above,
petitioner contends that “LCDC erred in determining the
IGAs do not qualify as land use decisions under the significant impact test.” In support of that contention, petitioner
argues that LCDC erred in concluding that “Metro retained
its authority to add the Stafford Area to the UGB under
MC 3.07.1110(e)” and that since “LCDC wrongly assumed
Metro retained the authority to add the Stafford Area to
the UGB under MC 3.07.1110(e), LCDC clearly did not consider the full impact of the IGAs on future land use.” As
petitioner sees it, had LCDC “properly evaluated the impact
of the IGAs on future land uses in the Stafford Area, there is
no question it would have concluded they satisfy the significant impact test.” Petitioner also argues that under Wagner,

, “a decision to maintain the status quo or
not change an existing situation can qualify under the significant impact test.”
         More specifically, regarding the Stafford Area itself,
petitioner posits that, because “[u]rban uses will not be
allowed in the Stafford Area until it is incorporated into the
UGB,” the “Cities’ ability to indefinitely delay the Stafford
Area from being considered for inclusion in the UGB will
have a significant impact on future land uses in the Stafford
Area.” Additionally, regarding the Metro region as a whole,
petitioner argues that “if the Cities are allowed to prevent
the inclusion of the largest and most viable urban reserve
area in the UGB, Metro will be forced to address regional
housing needs by expanding the UGB in other areas that
Cite as 

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are less suited for urbanized development or will not address
the areas that need it the most.”
          In response, the Cities contend, among other points,
that they have no “legal authority to change or effect land
uses in Stafford until the area is added to the UGB and
annexed to one of the cities,” and therefore, the IGAs could
not have a significant impact on land use. As the Cities
see it, “the ultimate question in terms of impacts on future
land uses is the decision whether the UGB will be expanded
to bring in Stafford,” and “under state law, that decision
remains with Metro” regardless of anything in the IGAs.
That is, according to the Cities, if “additional UGB land is
needed, and if after comparing Stafford with other urban
reserve lands it is determined that including Stafford within
the UGB is needed under ORS 197.299,” Metro could do so.
The Cities further argue that the 3-Party IGA is merely “the
Cities coordinating among themselves … the earliest date
when they would adopt concept planning” and those dates
are “well within the timing and coordination provisions of
the 5-Party IGA.” (Emphasis in original.)14
         LCDC, for its part, asserts that the IGAs do not
effect “a significant change in the land use status quo of the
Stafford Area, because, as LCDC correctly observed, that
status quo is governed by the state law,” and Metro “has
the authority under the Regional Framework Plan to move
ahead in the absence of a concept plan if necessary to fulfill
its obligations under state law.” Thus, LCDC contends the
IGAs are “akin to the pre-annexation agreement” in Crist
because the IGAs “do nothing; they merely say that something will be done, if the conditions are satisfied.” (Brackets,
emphases, and internal quotation marks omitted.) Further,
as LCDC sees it, under Hemstreet, to have a “ ‘significant
impact’ on future land uses the impact of a decision cannot
be merely ‘potential,’ ” and petitioner’s significant impact
argument “contains nothing but potentialities” hinging on a
“hypothetical scenario where the cities, by delaying completion of their concept plans, prevent Metro from adding the
area to the urban growth boundary.”
   14
      On appeal, pursuant to ORAP 5.77(4), Clackamas County and Metro
adopted the Cities’ brief.
734                                          Marks v. LCDC

C. The IGAs Satisfy the Significant Impact Test
        We conclude that the IGAs satisfy the significant
impact test and are “land use decision” subject to review
under ORS 197.320.
         Regarding the 3-Party IGA, to start, for the area
north of the Tualatin river, the 3-Party IGA prohibits the
Cities from completing or adopting a concept plan until at
the earliest December 31, 2028—nearly 10 years after the
3-Party IGA was entered into—and potentially far longer,
depending on when certain criteria are met concerning the
status of the “I-205 Widening Project,” which is something
no party to the 3-Party IGA has direct control over. The
3-Party IGA further prevents any of the Cities from “promot[ing] or support[ing] any expansion of the UGB into any
part of Stafford,” notwithstanding that the 5-Party IGA designates the Cities as the parties with “control over the planning, process and timing for the urbanization of Stafford.”
(Emphases added.)
         As discussed above, Metro has previously given
“decisive weight to the adoption of the concept plans” by cities as demonstrating that lands “within these concept plan
areas were best suited for UGB expansion.” Thus, the decision to prohibit the completion or adoption of concept plans
in Stafford (particularly coupled with the Cities’ agreement
amongst themselves not to promote or support any expansion of the UGB into any part of Stafford) is, in sum and
substance, a decision “not to change an existing situation.”
Wagner, 

. That is, it is a decision to keep
Stafford, at least that part north of the Tualatin river, outside of the UGB and unavailable for urban uses for a least
10 years and potentially much longer. It is a decision not to
move forward with the steps necessary for the urbanization
and eventual annexation of Stafford. Cf. Petersen v. Klamath
Falls, 

, 

 (1977) (“Annexation
decisions are inextricably involved with intermediate and
long-term land use objectives, for such decisions will control
the future growth and development of our urban areas.”).
Indeed, it was the provisions of the 3-Party IGA that were
the stated reason for Metro deciding not to fund the $170,000
grant, the purpose of which was to “assess the demands that
Cite as 

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urban growth in Stafford would place on currently existing infrastructure in order to inform concept planning.”
Moreover, as in Wagner, the decision not to change an existing situation in this case arises in the face of changed circumstances: In Wagner, it was the rezoning “of an area from
low density residential to an exclusive farm use designation,” 

; here, with regard to the 3-Party IGA,
it was Stafford’s designation as an urban reserve land (i.e.,
land that has “first priority” for inclusion within the UGB,
ORS 197.298(1)(a)).
         We agree with the hearings officer that “[w]hether
or not the Stafford Area is urbanized will … have very significant impacts” on properties in the Stafford area and failure to concept plan for urbanization would have “cascading
effects” on other areas to be considered and the availability
of housing for the Cities. As the hearings officer found:
   “The Stafford Area is a very large area. The Stafford Area
   contains over 25% of the current urban reserves. If the
   Stafford Area is not added to the UGB then other areas will
   have to be added. There are no other urban reserves near
   the Cities, so if the Stafford Area is not urbanized there
   would likely be little to no urbanization near the Cities.”
         For that reason, we conclude that the decision to
delay the completion or adoption of concept plans is likely to
have a significant impact on land use in the Stafford urban
reserve, and we conclude that the 3-Party IGA satisfies the
significant impact test.
         In reaching the conclusion that the 3-Party IGA
satisfies the significant impact test, we have also considered
that the 3-Party IGA mandates certain concept planning
criteria in addition to those in the Metro Code, including
“providing separation between communities and understandable borders,” “preserv[ing] natural features,” and
“[u]nless mitigated and addressed … no material impairment or degradation of the functionality of a transportation
or utility facility or system of another Party.” In our view,
those requirements for concept planning in Stafford—which
are in addition to those mandated by Metro, and which will,
as noted, “guide” (1) “conditions in the Metro ordinance that
adds the area to the UGB” and (2) “amendments to city or
736                                          Marks v. LCDC

county comprehensive plans or land use regulations following addition of the area to the UGB,” MC 3.07.1110(d)—also
militate toward a conclusion that the 3-Party IGA satisfies
the significant impact test.
          Regarding the 5-Party IGA, as noted, in that agreement, Metro, Clackamas County, and the Cities agreed that
“each governing City will be responsible for determining the
pace and timing of future development within an area to be
incorporated into the UGB,” that “[p]rior to adding any part
of Stafford to the UGB, the City that will be responsible for
annexing that part of Stafford must first have developed a
concept plan for the area describing how the area will be
planned and developed after inclusion in the UGB,” and that
the “timing for commencement and completion of a concept
plan will be up to the City.” Those agreements by Metro and
Clackamas County stand in contrast to the normal process
under MC 3.07.1110(a), which provides that the date for completion of a “concept plan and the area of urban reserves
to be planned will be jointly determined by Metro and the
county and city or cities,” and MC 3.07.1110(e), which provides for Metro to “add the area to the UGB if necessary to
fulfill its responsibility under ORS 197.299 to ensure the
UGB has sufficient capacity to accommodate forecasted
growth” in the absence of a concept plan if “the local governments responsible for completion of a concept plan under
this section are unable to reach agreement on a concept plan
by the date set under subsection [MC 3.07.1110(a)].” Thus,
as we understand it, it is the 5-Party IGA that paved the
way for the Cities entering into the 3-Party IGA; indeed, the
3-Party IGA itself states that it is intended to “implement”
the 5-Party IGA.
         It follows from our conclusion that the 3-Party IGA
satisfies the significant impact test that the 5-Party IGA—
which the 3-Party IGA is intended to implement, and which
provides that the Cities alone will have control over the timing of concept planning—is also likely to have a significant
impact on land use.
        The primary difficulty with LCDC’s analysis is its
assumption that, because “Metro must consider and balance
the boundary location factors of Goal 14 for the Stafford Area
Cite as 

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urban reserves for comparison to other urban reserves in
the alternative boundary locations and ultimately to determine the Metro UGB location,” and because, in its view,
Metro retained that authority under the IGAs, the IGAs
therefore could not “significantly impact present or future
land uses because such actual uses are determined under
existing state law.” The difficulty with that analysis is that,
as explained above, although “Metro cannot use the concept
plan requirement [in MC 3.07.1110] to avoid the requirement
of Goal 14 that it study all urban reserve lands, including
the Stafford Area, for inclusion in the Metro UGB at the
time of a UGB expansion analysis, and analyze such lands
using the four factors for such an analysis found in Goal 14,”
Metro has “the option of using the adoption of a concept plan
as a strongly determining factor in its analysis of the four
UGB expansion factors in Goal 14, which emphasizes as a
policy priority Metro’s review under the second Goal 14 location factor, ‘orderly and economic provision of public facilities and services.’ ” And, as noted, Metro in fact has given
the adoption of concept plans “decisive weight” in determining what lands are “best suited for UGB expansion.”
         As explained above, Metro prioritizes concept
planned land for incorporation into the UGB because, in
Metro’s view, concept planning “ensures that there is a plan
for future development, including estimated costs of infrastructure and potential methods for financing,” and also
“ensures there is a city that is willing and able to annex
and govern a proposed expansion area so that it can actually be developed.” The concept planning requirement in the
Metro Code came about in the “wake of [Metro’s] large UGB
expansion in 2002, which added approximately 12,000 acres
in the Damascus area that have still mostly failed to urbanize.” We have no reason or occasion here to question Metro’s
choice regarding the prioritization of concept planned land
when adding land to the UGB, but LCDC’s analysis failed to
take that choice into account.15
    15
       We note that, on review before us, petitioner argues that it is “undisputed
that Metro will not be able to consider the Stafford Area during its next review
of the UGB in 2024, because the IGAs prohibit the adoption of concept plans
until at least December 31, 2028.” We do not understand that to be undisputed.
LCDC argues that its decision below was correct because it is Metro that “ultimately has responsibility under state law to coordinate, evaluate urban reserves
738                                                         Marks v. LCDC

         Put simply, the difficulty with LCDC’s analysis is
that even if Metro is able to add parts of Stafford to the UGB
without concept plans under MC 3.07.1110(e) and without
the Cities’ support if needed to comply with its obligations
under state law, in determining where to expand the UGB,
Metro prioritizes land that has been concept planned.
         Additionally, we are not persuaded by LCDC’s
comparisons between the IGAs, on the one hand, and governmental decisions in Crist and Hemstreet, on the other.
Unlike the preannexation agreement in Crist, which
“merely sa[id] that something will be done, if the conditions
precedent for it are satisfied,” 

, the 5-Party
IGA and the subsequent 3-Party IGA did something: They
designated the Cities as the parties that would control
the timing of the adoption of concept plans, prohibited the
Cities from adopting concept plans for areas north of the
Tualatin river for a period of 10 years, and adopted new criteria for concept planning. Further, unlike the governing
body decision in Hemstreet, which awarded a lease contingent on “further details to be agreed upon by the attorneys
and Administrative Officer, and subject to the approval of
the Improvement Commission,” 

, the decision not to adopt concept plans for Stafford contains no such
contingency.
          Finally, we note that, on review, petitioner and
respondents do not see eye-to-eye as to another aspect of
LCDC’s decision. Petitioner argues that “LCDC erred by
concluding the IGAs do not impact future land uses based on
the hearings officer’s determination the IGAs do not violate
the RFP,” while the Cities respond that LCDC did not base
its “ ‘significant impacts’ decision on the hearing officer’s

for consideration, and … to move ahead in the absence of a concept plan if necessary to fulfill its obligations under state law.”
     Although petitioner’s argument overstates his case because, as noted, Metro
cannot use the concept plan requirement in MC 3.07.1110 “to avoid the requirement of Goal 14 and OAR 660 Division 24 that it study all urban reserve lands,
including the Stafford Area, for inclusion in the Metro UGB at the time of a
UGB expansion analysis,” as a practical matter, given the importance of concept
planning to Metro’s analysis, petitioner’s point is made. And, as petitioner also
notes, even if Metro has the authority to add part of Stafford to the UGB without
a concept plan, “Metro clearly stated it will not do so and agreed to the 5-Party
IGA to convince the Cities of this fact.”
Cite as 

 (2023)                             739

determination that the IGAs do not violate the RFP” and
petitioner is “inappropriately attempt[ing] to bootstrap his
argument on the merits of that question into this appeal.”
We do not see that issue as having any bearing on our jurisdictional analysis given the facts of this case; as noted, a
decision can be compliant with the law and still have a significant impact on land use. Wagner, 

 (“The
significant impact test is a determinant of jurisdiction, not
of the merits of a review.”).
                    IV. CONCLUSION
         On the first page of his opinion, the hearings officer
in this case noted that there is a “long convoluted history
involving the Stafford Area and its potential inclusion in
the urban reserve and urban growth boundary.” This case is
another chapter in that history. Although there is no guarantee that, without the IGAs, urbanization of Stafford would
move forward more quickly, we nevertheless conclude that
the IGAs are likely to have a significant impact on land use
in Stafford and the surrounding area within the meaning
of the significant impact test. Consequently, we reverse and
remand this case to LCDC for further consideration consistent with this opinion.
        Reversed and remanded.