Anybody who has followed the Bend City Council for any length of time knows that the seven-member body doesn't agree on much. But when state land-use planners flatly rejected the city's proposal to expand Bend's urban area after five years of planning work, public meetings and countless hours of staff time, the city council took exception.
It voted unanimously earlier this month to put the planners back to work immediately crafting an appeal to the state, which the city expects to file by Friday outlining the defense of its ambitious 20-year growth plan that would potentially increase the size of Bend's urban area by almost a third by 2030.
It's a plan that not everyone agrees upon, including, ironically, some of its biggest supporters in the building and development community. It turns out the politics of drawing lines on a map run deep. But as the city prepares for a legal battle with the state over its proposal, some wonder whether the ambitious plan is worth defending, particularly in light of the current economic climate with housing and other economic activity at a virtual standstill.
That the state sent the plan back to the city for revision was no surprise; state land use officials had long expressed their skepticism about the scale and direction of the city's planning work. But it was the forcefulness with which the state rejected the plan that caught some city officials by surprise. Rather than go back to the drawing board, city officials are girding for a fight.
The city staff doesn't have an estimate on the cost of the appeal to the Land Conservation and Development Commission, but most of the legwork will be handled in house by planning staff and the city attorneys.
"These do not represent huge dollars," said Brian Shetterly, the city's long-range planning manager.
It's an unusual step for a municipality to challenge the state. Over the past five years the state has processed 13 UGB expansion requests around Oregon, but Bend is the first to challenge state planners on a revision request, known as a remand.
The alternative, say city officials, is to take the lengthy work order from the Department of Land Conservation and Development (DLCD) and send staff back to the drawing board, a move that would prolong the roughly five-year process and potentially force the city to cough up more money for consultant fees and public meetings. Shetterly estimated the total could ring in at $200,000 to $300,000. There's also another reason to appeal the department's decision in hopes of getting a quick resolution. If the city were to proceed with the remand tasks, Shetterly said it could tie up another year or two of staff time that would otherwise have been spent on other projects, such as the Central Area Plan and an update of the city's outdated Comprehensive Plan.
Not everyone agrees that going head to head with the DLCD is an expedient move. Local land use attorney Paul Dewey said the city's aggressive approach is unlikely to be viewed favorably by the Land Conservation and Development Commission. The city had plenty of opportunity to hew closer to state law based on the feedback that it got throughout the process from the department that included a series of lengthy letters outlining the pitfalls Bend faced with its approach. The state isn't the only one that has taken issue with the city's decision. The city had more than 25 parties file formal objections to the UGB plan.
"I haven't talked to a single development attorney who thought it didn't have to be remanded for one reason or another," said Dewey, whose own group, Central Oregon LandWatch, was among the objectors.
While LandWatch isn't opposed to a UGB expansion in Bend, the size and location of the expansion are not acceptable, Dewey said. LandWatch would have preferred that the city work with the DLCD on a smaller UGB expansion that puts more emphasis on re-development within the existing UGB and more growth on the east side of Bend where it is easier to serve land with water, sewer and roads.
Fighting with the department isn't going to change any of those fundamental problems, said Dewey. Rather, he said, it will prolong the UGB debate.
"(The city) is doing everything it can to make this as long and painful as it can be," Dewey said.
The chasm between the city's growth plan and the vision that state land use planners at the DLCD is reflective of an overall rift that has developed between the state agency and Bend officials over the five-plus years of the UGB process. It became the focus of a recent city council discussion around the department's 150-page rejection letter to the city of Bend.
Councilor Mark Capell likened the relationship between the city and the DLCD to the recent tumult that the community experienced with the Oregon Liquor Control Commission - a squabble that eventually required the governor's intervention and culminated with the transfer of the commission's regional manager out of Bend to far-eastern Oregon. Capell joked publicly that maybe the community ought to do the same thing to the DLCD's field representative, Mark Radabaugh.
"I think there's a correlation between state agencies," Capell said.
"They have a local person who's been a roadblock since the day we started talking about the UGB."
Not surprisingly, that's not the way that the department sees it. The DLCD's Executive Director Richard Whitman addressed the issue head on when Capell brought it forward at a public meeting that drew a packed crowd to city hall Friday afternoon.
Whitman said that the department believes that Bend's staff has demonstrated the need for a UGB expansion and that his agency is interested in finding the most expedient way forward for the city to accomplish that - within the boundaries of the state law. And while the DLCD's report offers some pointed criticism of Bend's growth plan, Whitman said that is the view of the entire agency - not just a single field representative. More importantly, he said the department stands behind Radabaugh's work and the role that he's played in the UGB planning process.
"I know there have been some differences of opinion and some personality issues and I stand behind Mark. I think he's done an excellent job. But this is not Mark's report; this is my report," Whitman told city councilors during a roughly two-hour discussion of the department's review of Bend's proposal.
While both Whitman and city councilors indicated a willingness to work together to get the UGB expansion finalized in one form or another, it's clear that there is a difference of opinion about how much leeway the city has when charting its future growth. Bend officials say it's been evident from the start that the DLCD is operating within a one-size-fits-all framework, based on planning rules and policies that were crafted for the west side of the mountains. In many cases, city officials say that the DLCD has come up with an overly restrictive reading of its own rules. In some cases, the rules are vague and open to interpretation, while in others it seemed as though the department was pushing the city toward a certain outcome without a strong legal basis for doing so.
It's not uncommon for the department to be caught in the middle of these kinds of political discussions, said Cliff Voliva, DLCD's Salem-based spokesperson. When you have the words "conservation" and "development" in the title of your organization there is going to be some inherent tension to your work, Voliva said.
"It's a role that always puts us in the cross hairs with somebody. And most of the people around here are used to it. We realize it's just part of the job," he said.
In Bend's case, the rift between the local office and the city began to widen when the city staff went back to the proverbial drawing board in 2007 with marching orders from the city council to push the envelope on the UGB. The decision immediately put the city staff and stakeholders at odds with the DLCD, whose job it is to contain urban sprawl by requiring cities to plan for efficient and orderly growth. The department requires that cities prepare detailed plans and analysis of how they plan to do that before the department will sign off an urban expansion like the one Bend is mulling.
The groundwork for that proposal was laid in a series of meetings of a local technical advisory committee that consisted of a number of different stakeholders, including members of the building and real estate community, as well as land use watchdogs.
Over the course of the next year, the size of the UGB proposal expanded with each successive map that the city released. Dewey's cohort at LandWatch, Erik Kancler, was a member of the advisory committee. He said the city was under tremendous pressure from the building and real estate lobby to include as much land as possible.
"Who set the tone for those meetings was the block of interests representing builders and developers who were aggressive and assertive about what they wanted to see out of the process," Kancler said
By October 2008 the city's UGB proposal stood at just under 9,000 acres for housing and unemployment lands, a roughly 85-percent increase from the map that the city produced in June 2007. One of the biggest changes was a significant expansion of lands on the west side of Bend where developers and longtime landowners had lobbied hard for inclusion, relying in part on 30-year-old planning maps. Critics, including Dewey, have pointed out that these west side lands are some of the most expensive to serve by the city's own estimate.
When the DCLD staff looked at the final proposal, it found the city's expansion to be roughly four square miles greater than the city's established land need for the 20 year planning window required by the state. The city for example did not provide any supporting evidence as to why it included roughly 3,000 acres of land that it deemed to be unsuitable for housing or commercial lands within the expansion area, according to Whitman. It also failed to provide an affordable housing strategy, or a detailed analysis of why it wasn't pursuing a more aggressive strategy for infill development.
City officials who submitted some 16,000 pages of documentation say they have done the homework that the DLCD is demanding. For example, the city added some 1,100 units of housing by encouraging increased density along transit corridors and within the city's so called Central Plan Area along Third Street. Overall, the city plans to provide for about two-thirds of its needed housing, or roughly 11,000 units, within the existing urban area, Shetterly said.
He cited the increased densities, for example, as evidence that the city is looking at ways to promote infill and in doing so provide more affordable housing options.
"The director's response has been, 'That's not enough. Do more.'... The question becomes how much more?" Shetterly said.
City officials say they don't expect the commission, which will meet in Bend in late March to review the appeal, to do an about face on the director's remand. But they do expect to win some concessions from the state that city staff believes will expedite the process, saving the city time and money in the long run.
"The director's report is not the final word. We've placed so much emphasis on hearing back from DLCD and we've heard back and it is what it is...But you're not done until you hear from the commission," Shetterly said.
Aug. 2004 - City adopts new population forecast
June 2007 - City submits a 4,884 acre expansion and 14,775 UAR
June 2007 - City withdraws UGB proposal
Oct. 2008 - City submits notice of revised expansion of 8,943 acres
Aug. 2009 - Proposal deemed complete
Jan. 2010 - State sends expansion plan to city
Jan. 2010 - City council votes to appeal state's decision
How the next Northwest Crossing quietly fizzled
Perhaps no one embraced the urban expansion more fully than Brooks Resources, the granddaddy of Bend developers, and one with a long track record of success in Bend. Among other projects, Brooks was the original developer at Awbrey Butte and Northwest Crossing, the latter of which has served as a model of sorts for Bend's urban planning efforts.
Like other developers, Brooks saw an opportunity when Bend re-opened the urban growth boundary process in 2007. The company scooped up 140 acres of prime land along the Deschutes River corridor just north of Bend and optioned another roughly 550 adjacent acres for purchase. The company began immediately laying plans for its most ambitious development project to date, a 2,000-unit mixed use development dubbed Riley Park.
Brooks approached the development as a long-term project with a 15-20 year horizon. But in the halcyon days of the building boom in Bend, it looked as though the entire project might be complete in a five to ten year window, given the seemingly bottomless appetite for single family housing in Bend.
Then came the Bust. The bottom fell out of the housing market and land prices plummeted in Central Oregon. Brooks was on the hook for land in the neighborhood of $70,000 per acre, said President Kirk Schueler. Contrast that with the going rate for bare land, which he estimated at about $20,000 to $30,000 per acre - and that's before an urban expansion adds to the supply.
In a move reminiscent of what many homeowners have done, Brooks decided to walk away from the project and write off the losses.
Brooks sold its outright interest in the initial 140 acres to the Colson family - the same folks who were stymied with their destination resort plan in the Metolius basin.
Given the current market realities, Scheuller said he thinks that a 700-acre project is just too big for Bend. Which raises the question: if Bend's biggest and longest running local developer doesn't feel like betting on a market rebound - at least not one on the order of the boom years - should the city be pushing an ambitious growth plan?
Schueller said he thinks that Brooks' decision not to proceed with Riley Park shouldn't have an impact on a purportedly objective process, involving long range population estimates and projected growth patterns. City planners agree. They say the 20-year plan is built to withstand the ups and the downs of the markets. Over the long haul, they say they expect Bend to grow again, and if Brooks doesn't build on the north end, someone else will.
But then again no one has ever seen a bust quite like this.
Most folks in the planning world know the cumbersomely titled Department of Land Conservation and Development by its acronym, DLCD. The name isn't the only cumbersome part of the agency, which is charged with enforcing Oregon's labyrinth of land use and transportation planning laws. The agency is often the ire of local planners who wrestle with state land use planning regulations that have grown progressively complex since the system was first enacted in 1973. While the original land use law was based on a framework of 14 land-use "goals", the system has become more layered with each passing year. The city of Bend for example submitted more than 16,000 pages in support of its current UGB request.
It's DLCD's job to make sure that cities are meeting all of the state planning criteria by periodically reviewing local land use plans, known as comprehensive plans, and urban growth boundary expansions for compliance with state law. The agency had about 85 full-time staff members and a budget of about $28 million in the last two-year budget cycle. Cities such as Bend that are not happy with a decision from DLCD have the option of appealing the director's ruling to the Land Conservation and Development Commission, a seven-member citizen board appointed by the governor, which oversees the policies of the department.