1000 Friends of Oregon v. Wasco County Court

JOSEPH, C. J.,

concurring.

I agree with the lead opinion’s holding and its reasoning. I write separately to explain what may appear to be an anomaly in the Supreme Court’s and our opinions and, also, to offer either assistance or comfort to LUBA in the task that confronts it on remand.

In 1000 Friends of Ore. v. Wasco Col Court, 62 Or App 75, 659 P2d 1001, rev den 295 Or 259 (1983) (Wasco County I), *432we held that the county’s decision to authorize the incorporation election was an exercise of “planning * * * responsibilities” subject to the statewide planning goals, ORS 197.175(1), and was therefore a “land use decision” subject to LUBA’s jurisdiction. ORS 197.015(10). We conclude in this appeal that, because Goal 14 regulates urbanization and conversion by requiring a specific process to be followed and a specific decision to be made after incorporation, the decision to incorporate cannot have an independent or direct effect on present or future land use and cannot be a per se violation of the urbanization and conversion provisions of the goal.

We appreciate how peculiar it is for LUBA to have jurisdiction to review a decision for goal compliance, when it is virtually, if not absolutely, impossible for the decision to violate the particular goal that is facially the most relevant. However, the peculiarity is not a consequence of our opinions. Wasco County I correctly construed ORS 197.175(1) and 197.015(10), at least insofar as controlling Supreme Court authority permitted; today’s decision correctly interprets Goal 14. The anomaly, such as it is, inheres in the statutes and goals rather than in our interpretations. ORS 197.175(1) specifically designates incorporation as one of the city and county planning responsibilities that must accord with the goals, while Goal 14 makes the act of incorporation standing alone incapable of producing or permitting present or future urbanization; the goal makes the subsequent (and independent) UGB establishment process the planning device for controlling transition from rural to urban uses. Stated simply, the statutes in ORS chapter 197 make incorporation a land use decision that is reviewable, inter alia, for compliance with Goal 14, but the internal mechanisms of Goal 14 prevent incorporation from having any immediate or remote result that is inconsistent with the goal. See 1000 Friends v. LCDC, 292 Or 735, 642 P2d 1148 (1982).

As the lead opinion observes, neither Wasco County I nor Petersen v. Klamath Falls, 279 Or 249, 566 P2d 1193 (1977), addresses how Goal 14 is to be applied to incorporation and annexation decisions, and neither case analyzes the goal’s UGB process or the bearing the existence of that process has on whether incorporation or annexation in themselves can be relevant to the goal’s operation or objectives. It is not surprising that the cases do not address those matters. Although Goal *43314 was in effect when the Supreme Court decided Petersen, the goal did not exist when the city made the annexation decision the court reviewed;1 the immediate issue was whether the interim goals of former ORS 215.515 should have been applied by the city. ORS 215.515 contained nothing corresponding to the Goal 14 UGB process for regulating the urbanization of rural land and, so far as we can find, neither did anything else in Oregon’s statutory or regulatory law before Goal 14 took effect.

Similarly, there was no question before this court in Wasco County I about how or whether Goal 14 applies to the decision to authorize an incorporation election; the issue was whether the decision is reviewable by LUBA as a “land use decision” under the ORS chapter 197 provisions, not what specific goals or considerations might be germane in LUBA’s review. As the parties formulated it in their arguments, the reviewability question turned in part on whether the calling of the election was a “final” decision, notwithstanding the fact that the last word on incorporation is the outcome of the election, rather than its authorization. We said, in that context:

“* * * What is final for purposes of LUBA review (and ours) is not necessarily the act that completes the process; it is, rather, LUBA’s concern as the last decision that concerns a local government’s application of the goals, ORS 197.015(10)(a) * * *.”
“* * * The court [in City of Pendleton v. Kerns, 294 Or 126, 643 P2d 658 (1982),] applied Petersen to hold that the ordinance was ‘subject to LUBA review if, but only if, it can be said that the street improvement work will have a “significant impact on present or future land uses” * * *.’ 294 Or at 134. (Emphasis added.) The court did not say that the decision had to have that impact before it was reviewable; it said that the implementation of the decision must have an impact. Yet, that decision was reviewable before the decision could be implemented or have an impact. We understand the standard to mean that if the completed process would have a significant impact, the decision implementing the process is reviewable.
*434“Implementation 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. See OAR 660-15-000 (Statewide Goal 14). It will 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. * * *” 62 Or App at 81-82. (Emphasis in original; footnotes omitted.)

That statement goes beyond the issue that was before us. The only “finality” question in Wasco County I was whether incorporation could be the consequence of the decision to call an incorporation election. ORS 197.175(1) specifies that incorporation is subject to the goals; it follows that incorporation is a “significant impact” sufficient unto itself to make the authorization of the election a reviewable land use decision under the ORS chapter 197 provisions. It was unnec-' essary and incorrect for us to go on to suggest in Wasco County I that future urbanization can in turn be a significant impact of incorporation. Unlike the land use decision in City of Pendleton v. Kerns, 294 Or 126, 643 P2d 658 (1982), neither the decision to call an incorporation election nor incorporation itself sets a process in motion that can have any impact on present or future land use; as today’s lead opinion states, the completed process of “[i]ncorporation simply creates a city that must later [initiate a second process, establishing a UGB,] that is the meaningful one for purposes of Goal 14.” (Slip opinion at 5-6.)

It may be that action by the legislature, LCDC or the Supreme Court is necessary to make the process completely coordinated and coherent. As our opinions today and in Wasco County I demonstrate, ORS 197.175(1) and Goal 14 can be made more compatible than they are. Similarly, it may be opportune for the Supreme Court to reassess the continuing vitality of Petersen v. Klamath Falls, supra, and, derivatively, of Wasco County I, in the light of the existence of Goal 14’s UGB mechanism and in the light of the LUBA review statutes enacted after the court decided Petersen. In the meantime, we and LUBA must do our best with what we have to work with.

There is some discussion of LCDC’s “urbanization goal” in Petersen, but that discussion is not helpful in determining whether or how the Goal 14 UGB process and conversion factors can be applied to an incorporation decision.