Home Builders Association of Metro Portland drops LUBA appeal against Stafford three-party agreement
The legal challenge filed with the Oregon Land Use Board of Appeals over the three-party agreement signed by Tualatin, West Linn and Lake Oswego has been dropped.
The appeal filed back in March by the Home Builders Association of Metro Portland and David Marks, a member of the Stafford Land Owners Association, intended to challenge a provision of the intergovernmental agreement (IGA) between the three cities that they called a "10-year moratorium" on comprehensive planning for the Stafford area north of the Tualatin river.
According to Ezra Hammer, the Home Builders Association's director of policy and government relations, they've decided to drop the appeal after consulting with legal counsel and coming to the conclusion that the LUBA appeal wasn't the most effective way to challenge certain aspects of the three-party IGA.
"Subsequent to our filing notice of intent to appeal, other parties decided to pursue a Department of Land Conservation and Development (DLCD) enforcement action approach, which goes a different route to correct the 10-year moratorium," Hammer told The Review. "Based on our internal conversations and in consultation with our legal counsel, we determined that was a more appropriate route and thus it made sense to unilaterally withdraw our notice of intent to appeal with LUBA."
Enforcement actions can be filed with the state's DLCD commission when someone believes a decision making body is not complying with relevant regulations. Enforcement actions may either be initiated by the commission or be in response to a petition for enforcement by a party such as the one David Marks is now forming.
This past spring the City of Lake Oswego moved to intervene on behalf of Tualatin— the city named in the LUBA appeal — but a six-month stay on the appeal requested by the Home Builders Association themselves meant that the three cities never even heard a formal argument against their IGA.
"The City certainly feels that the decision to approve that three-party agreement was solid legally and that it wasn't a land-use decision subject to the Oregon Land Use Board of Appeals," said David Powell, city attorney for Lake Oswego.
While the word "moratorium" never appears in the IGA, Hammer and the Home Builders Association interpret the agreement in that way.
The three-party IGA, approved by West Linn and Lake Oswego in late 2018 and Tualatin earlier this year, is a companion to a five-party IGA approved in 2017. The three-party agreement states that no city can complete a concept plan or apply for urban growth boundary (UGB) expansion into any part of Stafford until the state's I-205 widening project has been designed and fully funded, with construction scheduled to begin in two years or less. It further states that the portion of Stafford north of the Tualatin River cannot have a concept plan adopted or be requested for UGB expansion until 2028 at the earliest.
Stafford totals more than 6,000 acres, and only a small percentage of that acreage is considered developable due to its challenging topography. Debate over the future of the area has raged for decades, but heated up in 2010 when Metro designated Stafford as urban reserve land (which can be incorporated into the urban growth boundary within the next 50 years).
The three cities and many residents said any development would likely cause significant problems related to infrastructure and transportation, while some owners of larger properties continued to push for urbanization. The Oregon Court of Appeals reversed and remanded the Metro urban reserve designation in 2014; about a year later, Stafford residents approved a Community Vision Plan that called for the area around Borland Road to be developed as urban reserve, with the rest of Stafford in the area north of the Tualatin River falling under the "undesignated" category (and thus not open for dense development). That plan, however, did not change Metro's designation.
Earlier this year, Metro Council President Lynn Peterson and Clackamas County Chair Jim Bernard issued a letter to the three cities informing them that they would allow the deadline for $170,000 in earmarked funds for traffic planning in urban reserve areas to expire on June 30, 2019 after extending it each year since the grant was awarded in
"Since the last extension, your cities entered a three-party agreement in January 2019 stating that no concept planning for the Stafford area will occur for the next ten years," the letter stated. "The agreement 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."
Hammer believes growth by the three cities, as well as Wilsonville to the south, will continue to cause headaches for Stafford as more and more people seek new transportation routes to work and cut through the area to reach their destination.
"I think right now, folks in and around the Stafford area are seeing the unintended consequences of not planning. The only way we're going to work to address that and integrate Stafford into the region that's growing around it is through concept planning," Hammer said. "That's the mechanism that exists and we're certainly hopeful that political leaders in Tualatin, Lake Oswego and West Linn will recognize the negative impacts that the lack of concept planning is having so we can move forward in a way that brings all interested parties to the table and lays out a proactive vision of what Stafford can become for the growing population of the Metro region."
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