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Legal challenges threaten future growth

South Cooper Mountain and South Hillsboro plans hinge on court ruling


Two large and innovative mixed-use developments in Washington County are moving forward under a legal cloud.

South Cooper Mountain in Beaverton and South Hillsboro are both intended to be so-called “complete communities” with a range of housing choices, employment and retail centers, schools, parks and other public amenities.

Many county residents have spent hours helping to plan the developments. Most recently, dozens of people attended a community meeting with planning staff on Sept. 11 to share their ideas for South Hillsboro, which is located between Hillsboro and Aloha, just south of the Tualatin Valley Highway. Similar meetings have been held for planning South Cooper Mountain, which is located north of the junction of Southwest Schools Ferry and Roy Rogers roads.

But there is no guarantee either of these developments will take place. The multi-step process of approving them is being challenged before the Oregon Court of Appeals. The court heard oral arguments on the first challenge in January and has yet to issue a ruling, which is already set to trigger a second challenge.

Metro President Tom Hughes, who oversaw the process intended to allow the development of South Hillsboro and South Cooper Mountain, is growing concerned by how long the first ruling is taking.

“I don’t know what to make of it. I think having some contingencies would be wise. I think several agencies are internally beginning to talk about ‘worst-case scenarios.’ Might be good to make that discussion more general,” says Hughes.

Washington County Chairman Andy Duyck is also worried about the meaning of the delay.

“It implies the Court of Appeals has some concerns about the process, but we don’t know what the concerns are,” says Duyck.

North Hillsboro, a planned industrial area north of the city, is also caught up in the challenges.

Legal challenges

The process of developing South Cooper Mountain, South Hillsboro and North Hillsboro is complex, even by Oregon land-use planning standards. Until 2011, all three properties were outside the Urban Growth Boundary administered by Metro to determine where new growth occurs. In the past, if Metro wanted to bring such properties into the UGB for development, it had to first determine they weren’t better suited for farm or forest uses.

But the 2007 Oregon Legislature allowed Metro to designate Urban and Rural Reserves throughout the region. The goal was to better plan for longterm growth and preservation. The designations would be good for 50 years, providing greater certainty for both property owners and planners.

Working with Washington, Multnomah and Clackamas counties, Metro designed its Urban and Rural Reserves in 2010. The Land Conservation and Development Commission affirmed them the following year.

Metro then approved a series of UGB expansion onto some of the Urban Reserves in late 2011. They included South Hillsboro, South Copper Mountain and North Hillsboro. The LCDC also approved them.

But both decisions were challenged before the Oregon Court of Appeals by various property owners and land-use watchdog groups, including 1000 Friends of Oregon. Among other things, they argued that Metro did not property follow the state law for designating Urban and Rural Reserves, meaning the subsequent UGB expansions were also invalid.

Despite the challenges, planning began in earnest on 1,400 acres in South Hillsboro, 2,300 acre in South Cooper Mountain and 330 acres in North Hillsboro. The city of Beaverton is taking the lead on planning for South Copper Mountain. The city of Hillsboro is taking the lead on planning for South and North Hillsboro. Planning efforts include determining the location of new roads and other public infrastructure improvements, and who will provide urban services in the developed areas.

“Planning can’t stop because of a court challenge, otherwise it will be set back years. But if the court remands the decision back to Metro, we have a real problem,” says Duyck.

Uncertainty lingers

No one knows for certain what will happen if the Court of Appeals sends the designation of the Urban and Rural Reserves back to Metro for additional work, however. Even if the court determines that only technical issues need to be resolved, multiple parties — including the Metro Council and Washington County Commission — could have to approve every change.

But if the court rules the reserves are in the wrong places, the solution gets much more complicated.

“If it’s just technical issues, then we would work to fix them. But if the problems are bigger than that, I just don’t know what would happen,” says Duyck.

Jeff Bachrach, an attorney for the largest landowner in South Hillsboro, says such a ruling could undo years of work, including more than 100 public meetings.

“Should the court decide to remand the urban-rural reserve decision back to LCDC and Metro, it could well be a death sentence for the reserves as there may not be the political will to re-open and re-do the process. That would be a disastrous outcome for more than six years of land-use planning work, and its impact on economic development in the region would be even worse,” says Bachrach, who represents the Newland Real Estate Group.

And even if the court approves the designation of the reserves, it will then hear the challenges to the UGB expansions. Such expansions have been invalidated in the past for a variety of reasons.

In the meantime, planning continues for all three areas in hopes that construction can begin next year.




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