How Much “Citizen Participation” Is Too Much?

There’s bad blood brewing in North Plains and it isn’t likely to get better anytime soon. Not surprisingly, land use is at the heart of the fight.

If you’re not familiar with North Plains, it’s a small city in Washington County just north of Hillsboro.  Because North Plains lies just outside of the boundaries of Metro (the Portland area regional government), North Plains has grown significantly in recent years. It’s one of the few places near Metro that a family can still buy a home with a yard, which the Metro Council despises – for everyone except themselves that is.

The success of North Plains has led to a significant shortage of land for both housing and industry.  Under Oregon’s land use laws, when a city is faced with a lack of land due to growth pressures, the city has three choices. 

First, a city can increase housing density (i.e. pack more people closer together) to add more housing units. The new development is called infill development. Another option is that a city can add land from the surrounding area to increase its development capacity. That requires an amendment of the city’s urban growth boundary (UGB). Alternatively, a city can adopt a mix of both infill and a UGB amendment to meet its current and future needs. 

This last option is what most cities choose and is what North Plains proposed.

The fight to end all fights – UGB expansions.

Anyone familiar with the inner workings of our land use laws can tell you how difficult it is for any city to expand its UGB.  Over the last half century, both the Oregon legislature and LCDC have passed laws and rules making it exceedingly difficult for a city to demonstrate a need to expand the UGB. 

For small cities like North Plains, the problem is even worse, due to a lack of staff with sufficient expertise to navigate through the bizarre maze of state laws and rules.  The state is littered with the ghosts of cities who have tried to add land so they could grow, only to run into the heavy hand of DLCD and their no-growth attitudes.

On top of that, Oregon prides itself on “citizen participation” in land use decisions. Having residents involved in planning their community makes sense, but Oregon has managed to adopt “citizen participation” laws that are on steroids.

In order for a city to expand its UGB, regardless of the size of the expansion, the city is required to hold multiple public hearings, accept testimony from whomever wants to show up in person, by writing, email, or fax, and demonstrate perfect compliance with a variety of factors demonstrating both a need to expand their UGB and that the chosen location is the best location for the expansion. 

The factors used by the city to make these demonstrations are complicated and subjective, making it easy for anyone with an axe to grind to raise arguments about the strength of the city’s efforts to demonstrate compliance.  And once the person raises an argument, anyone who participated in any of the hearings in any capacity has standing to challenge the city’s decision.

The squeaky wheel gets the grease.

For example, say North Plains decided to expand its UGB.  In order for North Plains decision to become final, the City would have to receive LCDC approval – it’s called “acknowledgment”.  Any person who showed up and testified to the City Council would have automatic standing to object to LCDC about the City’s decision and could raise any argument that anyone had raised to the City Council, even if they weren’t the ones raising it, and even if the argument was “sort of” raised.

If LCDC made its decision to acknowledge the North Plains UGB expansion, the same people who complained to LCDC would have the right to challenge LCDC’s decision to the Oregon Court of Appeals.  If they didn’t like the Oregon Court of Appeals decision, they could challenge that decision to the Oregon Supreme Court.  But that’s not the worst part.

The worst part is that if LCDC, the Court of Appeals, or the Oregon Supreme Court find that North Plains made even one mistake, no matter how small, the City would be required to go back, hold more public hearings, and fix their mistake. And then the acknowledgment process could start all over again.

It’s small wonder why UGB decisions often take years to complete.  Ask McMinnville – they spent 26 years trying to complete a UGB expansion, after getting tortured at every step of the way by a dedicated group of “farmland advocates”.  How’s that for efficiency? The city identifies a need for more land to meet their growing city, and a quarter century later, they complete the process. 

Same story, different day in North Plains, but with a referendum twist!

We should be honest with ourselves and admit that the UGB process created by our land use system is hopelessly broken and needs to be fixed, so that all cities have a reasonable and quick opportunity to meet the needs of their residents. Unfortunately, the fun is only beginning for a city with a dedicated band of NIMBY’s hell-bent on stopping any economic development in the community. This is what’s happening right now in North Plains.

After engaging in a multi-year process with the community and DLCD, the North Plains City Council voted unanimously to expand its UGB to add land the City desperately needs for additional industrial development.  This decision irked a small, but dedicated group of area residents (most of whom live outside of North Plains) who decided to use Oregon’s initiative and referendum process to challenge the North Plains City Council’s decision.

The intrepid group of no-growthers proceeded to file a petition to refer the City Council’s boundary decision to North Plains voters.  They gathered the needed signatures, which is pretty easy to do in a small city like North Plains, and forced the City Council to place the decision on the May 2024 ballot.

The initiative and referendum system is cherished by Oregonians, and is used to great effect to make statewide policy changes.  Some of these changes are complicated and some aren’t.  OPOA has successfully used the initiative to make land use changes on a statewide scale.  In other words, no area of the law should be immune from the initiative and referendum powers of the people, including land use.

But it’s quite a different story when the public uses the referendum to challenge a complicated multi-year land use decision made by a local government for a very specific area and following very specific and subjective criteria that have been set at both the state and local levels.  This isn’t a challenge to state or local policy, it’s a challenge to how a city implemented that complicated policy.

To make matters worse, when a city like North Plains makes a decision to expand its UGB, there’s already a process in place for the public to challenge the decision. The challenge forces those who object to the decision to demonstrate that the City failed to follow the complicated requirements necessary to expand its UGB.  As highlighted above, it’s pretty easy for an opponent to prevail, given the need for the City to demonstrate perfection in its UGB decision.

Putting the propaganda in planning.

The North Plains NIMBY’s decided that it was a much better solution to ask the voters to make a thumbs up/thumbs down decision on the City’s UGB expansion.  In other words, the hard work, effort, public hearings, and decision by the City is going to be reduced to a decision by the voters based on campaign flyers chock full of misleading half-truths (or no-truths).  Slogans like “Do you want to save farmland? Then you must stop North Plains!” or “the North Plains City Council is in the pocket of greedy developers – only you can stop them!”.

Never mind that the City Council were elected by city residents, have been charged with following Oregon land use law, have waded through hours of the same arguments.  Their decision has now been reduced to slogans.

No wonder property owners simply give up in Oregon, which is exactly what the no-growth NIMBY extremists (err, I mean “farmland advocates”) want. OPOA will never give up opposing land use extremists and fighting for the rights of Oregon property owners.  But sometimes it’s a lonely damn job.

The opinions expressed in this post are those of the author and do not represent the opinions or positions of any party represented by the OPOA Legal Center on any particular matter.