Third Bridge Cranking up Again; Urban Growth Boundary Expansion Attempt Likely

So buried in Council's agenda for next Monday is an announcement of a Work Session for September 19th on the Salem River Crossing. Over the past many months the City has been working on laying the groundwork for an expansion of the Urban Growth Boundary to accommodate the bridge, much of which would be outside of the current UGB. Here are details on what this would involve and presumably outlines the argument the City will need to make. 

Third Bridge outside UGB

Reciprocally, for any UGB Public Hearing this is also the form an argument against the UGB expansion will need to take, a point-by-point refutation or contesting couched in more-or-less exactly these terms. (Although see the footnote for a possible qualification to all this.)

Needless to say, if things are getting ready to crank up again, there will be much more to say! 

As a preliminary step, it seemed useful to share the text of the letter and to make it more widely available. The letter has not been published by the SRC team to the SRC website so far as I know.

Additionally, the lack of information from the City over the past few months suggests anything that must be made public will be shared only at the last minute in order to make a considered response as difficult as possible. It seems likely that as things mature and advocates scratch the surface, additional dates and meetings and information will turn up this summer and fall.

From a June 23,2014 letter to the City of Salem from DLCD (about which Salem Weekly wrote on July 10th, 2014). Formatting is close to - but not identical with - the original. Hopefully that does not alter the sense in any meaningful way.

Process for a UGB expansion and Goal 15 Exception

A UGB amendment is guided by Statewide Planning Goal 14, (Urbanization), which incorporates the requirements of ORS 197.298 (establishing the priority of lands to be included in a UGB expansion). Because the current UGB is governed by an urban growth management agreement, any amendments will require adoption by Salem, Keizer, Marion County, and Polk County.

A. Land Need

Goal 14 includes two "Land Need Factors" which state:

"Establishment and change of urban growth boundaries shall be based on the following:
"(1) Demonstrated need to accommodate long range urban population, consistent with a 20-year population forecast coordinated with affected local governments; 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."

A need must be established under both of these criteria before a UGB can be expanded. The goal goes on to state:

"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."

B. Boundary Location

1. Requirements

Once a need to add land to the UGB is established, the city must evaluate the available study areas around the existing UGB to select the best location or locations to satisfy the unmet need. The city makes findings on each potential area or alternative under the four "Boundary Location Factors" in Goal 14. This section of Goal 14 states:

"The location of the urban growth boundary and changes to the boundary shall be determined by evaluating alternative boundary locations consistent with ORS 197.298 and with consideration of the following factors:
1. Efficient accommodation of identified land needs;
2. Orderly and economic provision of public facilities and services;
3. Comparative environmental, energy, economic and social consequences; and
4. Compatibility of the proposed urban uses with nearby agricultural and forest activities occurring on farm and forest land outside the UGB."

ORS 197.298 establishes the following priorities for including lands in the UGB:
1. First priority is land that is designated urban reserve land. Salem currently has no urban reserves, so this would not apply.
2. Second priority is land adjacent to an urban growth boundary that is identified as an exception area or non-resource land. Second priority may include resource land that is completely surrounded by exception areas unless such resource land is high-value farmland.
3. Third priority is land designated as marginal land pursuant to ORS 197.247. Polk County does not have designated marginal land, so this would not apply ..
4. Last priority is land designated in an acknowledged comprehensive plan for agriculture or forestry, or both. Higher priority is given to land of lower capability as measured by the capability classification system (for farm lands) or by cubic foot site class (for forest lands), whichever is appropriate for the current use.

If lower priority lands are selected for inclusion in the UGB when higher priority lands are available, the city's findings must justify why higher priority lands were rejected, based on one or more of the criteria in ORS 197.298(3):

"(a) Specific types of identified land needs cannot be reasonably accommodated on higher priority lands;
"(b) Future urban services could not reasonably be provided to the higher priority lands due to topographical or other physical constraints; or
"(c) Maximum efficiency of land uses within a proposed urban growth boundary requires inclusion of lower priority lands in order to include or to provide services to higher priority lands."

2. Methodology

The general steps taken by the city, as set out in OAR 660-024-0060, include applying the statutory priorities to available parcels, starting with the highest priority that applies. First, determine which parcels are the highest priority lands. If specific land characteristics were identified in the need process, determine which of these parcels satisfy the identified land need by analyzing each parcel according to specific characteristics regarding the suitability of the parcel for the intended use. If the resulting list of suitable highest priority parcels provides more land than needed, apply the four Boundary Location Factors in Goal 14 to each such parcel. Note that the city does not need to make a fmding that a proposed expansion area satisfies each individual location factor better than all other alternatives. Rather, the considerations embodied in the factors should be applied to each alternative expansion area, and the area or areas that, on balance, best satisfy the goal should be selected. This provides a tentative list of suitable parcels in the highest priority to add to the UGB.

If the highest priority lands do not accommodate all of the demonstrated land need, then the city should examine the next lower priority lands. The steps described for highest priority land would then be applied to each available parcel of lower-capability farm and forest land, providing a tentative list of suitable parcels in this priority to add to the UGB.

Only if the previous analyses do not identify sufficient land to meet all of the identified need(s) should the city's analysis consider lower priority lands (i.e., higher capability farm and forest lands), providing a tentative list of suitable parcels in this final priority to add to the UGB.

If the city determines that one or more of parcels in any priority category should be rejected in favor of land in a lower priority, then findings explaining why must be made according to the criteria in ORS 197.298(3).

C. Other Analysis Necessary

OAR 660-024-0020 requires that an action to amend a UGB address all relevant Statewide Planning Goals with specific exceptions listed. The goals that would be applicable in this case are listed below. We can provide additional information about specific goals if that would be helpful.

• Goal 5 (natural resources, scenic and historic areas, and open spaces), but only for the area to be added to the UGB;
• Goal 6 (air, water, and land resources quality);
• Goal 7 (areas subject to natural hazards);
• Goal 8 (recreational needs);
• Goal 9 (economic development);
• Goal 10 (housing);
• Goal 11 (public facilities and services);
• Goa112 (transportation);
• Goal 13 (energy conservation); and
• Goal 15(Willamette River Greenway).

D. Applicability to Specific Facts for Salem UGB Amendment

The first major step requires that Salem prove that there is a need for the transportation facility. This evidence could come from the transportation studies prepared for the for the draft environmental impact statement, (DEIS) which would be summarized and incorporated into the record.

The second major step requires that Salem prove that the need cannot reasonably be accommodated (language in both Goal 14 and in 660-024 implementing rules) inside the existing Salem-Keizer UGB. This is probably the most important and difficult step in the analysis.* For example, the findings will have to show that the alternatives that involve widening the existing bridges only, or adding a new bridge next to the existing bridges in the urban growth boundary, do not reasonably accommodate the need.

The third major step requires that Salem analyze the remaining alternatives outside the UGB, first against the priorities set forth in ORS 197.298. This will require a calculation of how much land would be added to the UGB under each remaining alternative, and the agricultural classification of such land. Each alternative appears to be located entirely on agricultural land, and the maps provided divide that land into classifications relating to prime farmland, but an additional classification must be made for specific soil class (Class I through IV) of the lands included under each alternative.

From here, the analysis can go one of two different paths. If the preferred alternative has better or similar quantitative impacts to agricultural land than the other alternatives, Salem must proceed to weighing and balancing the alternatives against the four location factors within Goal 14. Once again, findings backed by substantial evidence must justify the city's decision.

If, however, the preferred alternative has greater quantitative impacts to agricultural land, then in order to choose the preferred alternative the city must first make findings backed by substantial evidence that, for one of the three reasons contained with ORS 197.298(3), the alternative that would be a higher priority for inclusion in the UGB under the statute may be downgraded to a lesser priority.

E. Procedures For UGB Review

The process for review and appeal after all four jurisdictions have adopted a UGB amendment depends on the size of the expansion. If the UGB expansion is more than 50 acres, the decision is reviewed by the Land Conservation and Development Commission in the manner of periodic review. ORS 197.626(1)(b). A UGB expansion less than 50 acres is subject to the post acknowledgement plan amendment procedures in ORS 197.610 - 197.625 and OAR 660 Division 18 and any appeal would be reviewed by the Land Use Board of Appeals.

A UGB expansion is effective only after city and county adoption and exhaustion of appeals....[section omitted]

Process for Goal 5 Resources

A UGB expansion will trigger application of the Goal 5 rule, and any plan amendment allowing a new use that could conflict with a locally significant resource site must include findings based on OAR 660, Division 23. Application of the Goal 5 process could result in the need for an Economic, Social, Environmental and Energy (ESEE) analysis as described in the rule, particularly if the city has reason to modify the protection measures previously prescribed by the county.

The application of the Goal 5 rule in the Willamette River Greenway brings some added complication to the planning process. A local government must review activities in the Greenway for consistency with all Greenway objectives. This is usually done through local Greenway compatibility review overlay zones. The city will need to extend the zone they already have into the newly acquired area.

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* Editor's note: Pay particular attention to this passage, DLCD seems to say.

Also, here are previous notes on the land use approvals and a worrisome note about a "streamlined process for local governments outside of Metro to evaluate and amend urban growth boundaries" that could make things easier for the City. That process could effectively annul much of what is in this letter.

Update, July 8th

The September 19th work session has been scrubbed from the Council agenda item. Before it disappeared a reader took a screen capture and shared it, so here's the evidence.

(click to enlarge for detail)

Also, the story gets stranger. The item, 16-132, which earlier today was still visible on the agenda list, now seems to have disappeared from the general agenda list.

So this appears to represent at least two distinct episodes of silent edits to Council agenda and agenda items.

Maybe it's still part of the learning curve for the new system, or a result of a calendar that is still in flux, but it also seems perhaps a little shady given the way the SRC process has unfolded.

Update 2, August 2nd

Thanks to Councilor Andersen, the Work Session was reinstituted, was held last night, and it looks the Mayor in particular wants to run full steam ahead - damn the torpedoes, etc, etc. The next action appears to be buried on the consent calendar for August 8th. We'll see how that goes!

In the mean time, from the new streamlined process, here's the amended section of 660-024-0020. I have no idea what this means and am just parking it here for the moment. We'll return back to it in a subsequent post. (Full discussion at DLCD.)

It seems like the matter at Council will be political in nature, and therefore may not be very amenable to a discussion of fact. So it may be that more secure grounds for objection are provided by the legal basis for the UGB expansion, and any appeal to the LUBA, which seems like it has to be grounded in fact or in best available evidence.

660-024-0020
Adoption or Amendment of a UGB

(1) All statewide goals and related administrative rules are applicable when establishing or amending a UGB, except as follows:

(a) The exceptions process in Goal 2 and OAR chapter 660, division 4, is not applicable unless a local government chooses to take an exception to a particular goal requirement, for example, as provided in OAR 660-004-0010(1);
(b) Goals 3 and 4 are not applicable;
(c) Goal 5 and related rules under OAR chapter 660, division 23, apply only in areas added to the UGB, except as required under OAR 660-023-0070 and 660-023-0250;
(d) The transportation planning rule requirements under OAR 660-012-0060 need not be applied to a UGB amendment if the land added to the UGB is zoned as urbanizable land, either by retaining the zoning that was assigned prior to inclusion in the boundary or by assigning interim zoning that does not allow development that would generate more vehicle trips than development allowed by the zoning assigned prior to inclusion in the boundary;
(e) Goal 15 is not applicable to land added to the UGB unless the land is within the Willamette River Greenway Boundary;
(f) Goals 16 to 18 are not applicable to land added to the UGB unless the land is within a coastal shorelands boundary;
(g) Goal 19 is not applicable to a UGB amendment.

(2) The UGB and amendments to the UGB must be shown on the city and county plan and zone maps at a scale sufficient to determine which particular lots or parcels are included in the UGB. Where a UGB does not follow lot or parcel lines, the map must provide sufficient information to determine the precise UGB location.

Stat. Auth.: ORS 197.040, Statewide Planning Goal 14 Stats. Implemented: ORS 195.036, 197.015, 197.295 - 197.314, 197.610 - 197.650, 197.764 Hist.: LCDD 8-2006, f. 10-19-06, cert . ef. 4-5-07; LCDD 2-2009, f. 4-8-09, cert. ef. 4-16-09