Area 93 / Bonny Slope West
by Virginia Bruce
 Some folks may wish that aliens would land and take over this problematic area that was created in Metro's 2002 Urban Growth Boundary (UGB) expansion. It might be the easiest way to solve the dilemma that local jurisdictions and landowners find themselves in.
In 2002, an unprecedented 18,867 acres were added to the urban growth boundary to provide (on paper at least) 38,657 housing units and 2,671 acres for additional jobs. However, much of this land has gone undeveloped for various reasons.* In Washington County the sticky issues have been governance—who will do the planning, zoning, code enforcement and other work to make development feasible; financing—who will pay for the infrastructure (roads, sewers, schools); and service provision—which agencies can provide those services to the newly developed areas. North Bethany and West Bull Mountain are a couple of 2002 UGB areas that are in process.
Area 93 was a relatively small portion of the 2002 addition. Its roughly 160 acres has only about 54 acres of buildable land** because the rest is steeply sloped and valuable habitat—the headwaters of Bronson Creek run through it. Much of it already has relatively high-quality homes and probably would not be redeveloped any time soon.
Sources tell us that the parcel was stuffed into the UGB expansion at the last minute to make up for a lack of residential land in other areas. It was one of several nearby areas proposed during the selection process, and a group of landowners had been lobbying Metro councilors to have it included because they wanted to be able to develop their properties at the higher density that would result from inclusion in the UGB. (Multnomah County's current zoning is Rural Residential, which allows one single-family dwelling per legal parcel,)
Despite its obvious problems, it was included. Land speculators quickly bought up some parcels in anticipation of profit once the necessary planning was worked out.
Multnomah County doesn't provide urban services. Area 93 is three-fourths of a mile from Portland's Urban Service Boundary (USB) and the land between the city boundary and Area 93 was recently designated as a Rural Reserve, so it won't be eligible for inclusion into the city for at least 50 years. Although the land borders Washington County to the south, Washington County already has plenty of urbanized unincorporated area so it's not interested in adding more, even if a boundary change could be worked out.
Despite those problems, the jurisdictions made a good-faith effort to move the process along. In 2007, Metro awarded a grant of $202,500 to Multnomah County for concept planning, the first step necessary to allow development. Money for this grant came from a temporary excise tax on construction permits throughout the region (0.12% of permit value) which Metro passed to pay for local planning efforts for the areas brought into the urban growth boundary during the 2002 and 2004 expansions. The tax has been reauthorized to continue funding planning for further UGB expansions through 2014.
Multnomah County contracted with the City of Portland to carry out the planning project. Portland hired Winterbrook Planning to assess the existing conditions, and PB Americas to prepare the Concept Plan, under supervision of the planning department. Deborah Stein, District Planning Manager, says that everyone was pleased with the effort, but that although providers were identified for other services such as sewer and water (Washington County's Clean Water Services and Tualatin Valley Water were the preferred alternatives), there was no clear choice for the ultimate governing entity.
Adam Barber, a planner with Multnomah County who worked on the Concept Plan, says the design workshops were a "planner's dream. Everyone was on the same page, there was great turnout for the work sessions, with a majority of the landowners participating, and many public comments."
The Preferred Concept Plan was presented to the Multnomah Planning Commission in September '09. In November '09, the Commission recommended that the Multnomah County Commission (MCC) approve the plan while recognizing that governance was still a problem. So far, however, the MCC has not held a formal hearing on the plan.
In August this year, in response to contacts from Area 93 landowners, State Representative Mitch Greenlick called a meeting of neighbors to discuss the situation and look for a solution. After that meeting, he also met with Metro Chief Operating Officer Michael Jordan, and Metro Councilor Rex Burkholder who represents the Metro district that Area 93 is in. He also met with representatives of both Washington and Multnomah counties.
Following these meetings, he said, "My reading of their positions is that Multnomah County could not (and does not) provide those urban level services anywhere in the county. Portland has no interest in providing those services outside of their current Urban Service Area and is also prevented by State law from doing so. Washington County has an agreement with its cities that the county will not provide those services in the future. They have agreed that any new urbanization can only happen in areas that are annexed into a city. It was clear that Washington County will not provide those services as a part of an agreement with Multnomah County, nor would they provide them even if the boundary of the county was changed. And they would oppose a legislative proposal to change the boundaries of the county to do that.
"Under the current situation there can be no increase in density and no subdivision. Here is the official language on the topic: Metro's Title 11 states that 'pending adoption of land use planning that complies with the urban levels required by Title 11, the current level of residential and commercial/industrial uses may not be intensified AND no new lots can be created by dividing larger lots that result in a new lot being less than 20 acres.'
"There appear to be only two possibilities. The first is removing Area 93 from the Urban Growth Boundary in the upcoming December expansion of the Urban Growth Boundary. The second is leaving the situation exactly as it is with the clear understanding that there is no hope for urban level development into the distant future. Either would allow landowners to plan for their land under rural land use and building rules as specified above."
On August 17, the Metro Council discussed the issue at their work session. Minutes from the meeting report that, "the area is past the two-year deadline set out by the Land Conservation and Development Commission (LCDC) for service in an area incorporated into the UGB. There are two potential options; one is the area could be taken out of the UGB, but this could possibly subject Metro to Measure 49 claims, and the other is to leave it as is, but there is potential for legal action from the residents. The Council offered to work collaboratively with Representative Greenlick on the issue, but made it clear this is not the sole responsibility of the Metro Council; furthermore this is a statewide issue that will need to be dealt with on that level."
Councilor Kathryn Harrington says that at this point, the Metro Council is "not of a mind to give up on the area." They say that some of the responsibility for the problems lay with state land use regulations and that the state needs to have a hand in the solution.
Jordan says, "Removing the area from the UGB would cause another set of problems. First, the Metro Council would need to make up for the loss of residential capacity during this December's decision [on new UGB recommendations]. Secondly, such an action could give rise to Measure 49 claims, though our Attorney Office would need to do a thorough analysis of this possibility." Measure 49 was an initiative passed in 2007 that requires governments to pay landowners for legislative acts that reduce property values.
Burkholder says, "I see promise in the effort to create a city in eastern Washington County that could easily incorporate and serve this area. I believe cities are a direct way for citizens to control their future, and the appeal of creating a city will become more apparent in this part of the region." He also notes, "I voted against this addition in 2002 as it was very unproductive and not needed to meet our land needs. It was added by a former Councilor on behalf of a property owner without justification, and all the concerns I had about serviceability have played out."
Deborah Kafoury is the Multnomah County Commissioner who represents the area. She comments, "What I would say to our jurisdictional partners is that the residents want an end and a resolution. They need some finality. It's unfair to them to leave things hanging, and it makes us all look bad. I feel the best option is for Metro to remove it from the UGB and admit the mistake."
The Concept Plan may be presented to MCC in November. Some sources say that there are enough votes on that council to reject the plan.
And in regard to landowner claims for losses on their investments, Greenlick says, "There are no developer losses. There is only a failure of fantasy. People are entitled to live a rich fantasy life, but nobody is responsible for the failure of those fantasies." However, even if Measure 49 claims are made and rejected, it will add to the time and expense already incurred by public agencies and landowners alike.
The level of land use planning and control exercised by Oregon governments is unique in the nation. While much of our effort has great results—controlling sprawl, saving farm and forest land, maintaining property values—mistakes are made. We don't have a guidebook for these activities. Everyone is making it up as they go along, and the best outcome for a situation like this is to learn from mistakes and go on to improve the system. That was one of the goals of the Urban/Rural Reserves process. Washington County was very vocal in demanding that any new UGB additions have clear city providers for services. Area 93 wouldn't have passed that test had it been in place in 2002.
Metro COO Michael Jordan recently noted that the analysis of the current UGB's capacity to accommodate growth over the next 20 years assumes, for the most part, that the areas brought into the UGB in 2002 will be developed at 50 percent of their zoning potential by 2030.
Existing Conditions, Opportunities and Constraints Report, Winterbrook Planning, December 2008, page 31
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