361 P.3d 619
Or. Ct. App.2015Background
- City of Scappoose adopted a comprehensive plan amendment and economic opportunities analysis (EOA) that added ~380 acres to its urban growth boundary (UGB) to accommodate projected industrial/commercial (airport‑related) employment growth.
- The EOA relied on employment data from 2003–2007, an assumed 2008–2010 recession decline, and a consultant projection to estimate 2010 baseline jobs and job growth through 2030.
- Petitioner objected to DLCD, arguing the EOA used stale or incomplete data, overstated Scappoose’s share of regional job growth, failed Goal 2 coordination, and produced an employment forecast inconsistent with the adopted population forecast.
- DLCD’s director approved the ordinance; petitioner appealed to the Land Conservation and Development Commission (LCDC), which affirmed the director.
- The Court of Appeals reviewed whether LCDC’s order was "unlawful in substance" under ORS 197.651(10), focusing on LCDC’s legal interpretations and application of its substantial‑evidence standard rather than reweighing factual evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the EOA unlawfully used "stale" data (base 2010 employment) in violation of OAR 660‑009‑0010(5) and Goal 2 | Petitioner: City relied on outdated 2003–2007 data and ignored more recent recession‑era counts, so EOA did not use the "best available" information. | City/DLCD/LCDC: EOAs may be based on information available when prepared; not required to redo analysis with every new datum so long as reliance remains reasonable. | Held: LCDC’s interpretation is plausible; it permissibly allowed reliance on pre‑hearing data and applied a reasonable substantial‑evidence standard. |
| Whether the EOA improperly relied on short‑term (2003–2007) boom years instead of longer‑term trends | Petitioner: Using short high‑growth years produced an inflated forecast inconsistent with OAR 660‑009‑0015(1). | City/LCDC: The forecast was based on multiple sources beyond 2003–2007 and constituted an adequate factual basis. | Held: LCDC adequately explained that the city used additional information and did not misapply the law; sufficiency of evidence is for LCDC to assess. |
| Whether projecting that Scappoose would capture substantial regional job growth violated Goal 2 coordination or lacked support | Petitioner: City improperly assumed capture of jobs planned for other jurisdictions and failed to coordinate as required by Goal 2. | City/LCDC: EOA considered regional factors (location, lack of industrial land in Metro, airport) and coordinated with county; capturing outside‑UGB growth differs from capturing jobs planned inside another UGB. | Held: LCDC reasonably concluded the city justified its capture assumptions and met coordination duties; petitioner’s attack was primarily on evidentiary sufficiency, not legal error. |
| Whether the employment forecast was inconsistent with adopted 20‑year population forecast (OAR 660‑024‑0040) | Petitioner: Jobs forecast far outstrips population forecast, producing an implausible jobs‑per‑resident ratio and violating rule requiring UGB to be based on the population forecast. | City/LCDC: OAR 660‑024‑0040(5) permits employment estimates that are not proportional to population; city provided rationale (commuters, airport‑related jobs, multipliers). | Held: LCDC correctly applied the rule; proportionality is not required and the city’s explanation was legally sufficient; assessment of persuasiveness is for the local record. |
Key Cases Cited
- Barkers Five, LLC v. Land Conservation & Dev. Comm'n, 261 Or. App. 259 (Or. Ct. App. 2014) (agency‑rule deference and review framework for LCDC decisions)
- DeLeon, Inc. v. Dep't of Human Servs., 220 Or. App. 542 (Or. Ct. App. 2008) (deference to agency interpretation of its rules)
- Don't Waste Oregon Comm. v. Energy Facility Siting Council, 320 Or. 132 (Or. 1994) (agency interpretation of its own rules afforded deference)
- 1000 Friends of Oregon v. Land Conservation & Dev. Comm'n (Lane Co.), 305 Or. 384 (Or. 1988) (agency standard‑setting and judicial respect for agency views)
- Mountain West Investment Corp. v. City of Silverton, 175 Or. App. 556 (Or. Ct. App. 2001) ("unlawful in substance" review defined)
- Dimone v. City of Hillsboro, 182 Or. App. 1 (Or. Ct. App. 2002) (interpretation of "unlawful in substance" standard)
- Citizens Against Irresponsible Growth v. Metro, 179 Or. App. 12 (Or. Ct. App. 2007) (need for findings or accessible record to show applicable criteria were considered)