OAR 660-038-0170: Evaluation of Land in the Study Area for Inclusion in the UGB; Priorities

(1) A city considering a UGB amendment must decide which land to add to the UGB by evaluating all land in the study area determined under OAR 660-038-0160, as follows: (a) Beginning with the highest priority category of land described in section (2), the city must apply section (5) to determine which land in that priority category is suitable to satisfy the need deficiency determined under OAR 660-038-0080 and 660-038-0150 and select for inclusion in the UGB as much of the land as necessary to satisfy the need. (b) If the amount of suitable land in the first priority category is not adequate to satisfy the identified need deficiency, the city must apply section (5) to determine which land in the next priority is suitable and select for inclusion in the UGB as much of the suitable land in that priority as necessary to satisfy the need. The city must proceed in this manner until all the land need is satisfied. (c) If the amount of suitable land in a particular priority category in section (2) exceeds the amount necessary to satisfy the need deficiency, the city must choose which land in that priority to include in the UGB by applying the criteria in section (7) of this rule. (d) In evaluating the sufficiency of land to satisfy a need under this section, the city may consider factors that reduce the capacity of the land to meet the need, including factors identified in sections (5) and (6) of this rule. (e) Land that is determined to not be suitable under section (5) of this rule to satisfy the need deficiency determined under OAR 660-038-0080 or 660-038-0150 is not required to be selected for inclusion in the UGB unless its inclusion is necessary to serve other higher priority lands. (2) Priority of Land for inclusion in a UGB: (a) First priority is urban reserve, exception land, and nonresource land. Lands in the study area that meet the description in paragraphs (A) through (C) of this subsection are of equal (first) priority: (A) Land designated as an urban reserve under OAR chapter 660, division 21, in an acknowledged comprehensive plan; (B) Land that is subject to an acknowledged exception under ORS 197.732; and (C) Land that is nonresource land. (b) Second priority is marginal land: land within the study area that is designated as marginal land under ORS 197.247 (1991 Edition) in the acknowledged comprehensive plan. (c) Third priority is forest or farm land that is not predominantly high-value farmland: land within the study area that is designated for forest or agriculture uses in the acknowledged comprehensive plan that is not predominantly high-value farmland, as defined in ORS 195.300, or that does not consist predominantly of prime or unique soils, as determined by the United States Department of Agriculture Natural Resources Conservation Service (USDA NRCS). In selecting as much of the suitable land as necessary to satisfy the need, the city must use the agricultural land capability classification system or the cubic foot site class system, as appropriate for the acknowledged comprehensive plan designation, to select lower capability or cubic foot site class lands first. (d) Fourth priority is farmland that is predominantly high-value farmland: land within the study area that is designated as agricultural land in an acknowledged comprehensive plan and is predominantly high-value farmland as defined in ORS 195.300. A city may not select land that is predominantly made up of prime or unique farm soils, as defined by the USDA NRCS, unless there is an insufficient amount of other land to satisfy its land need. In selecting as much of the suitable land as necessary to satisfy the need, the city must use the agricultural land capability classification system to select lower capability lands first. (3) Notwithstanding subsections (2)(c) or (d) of this rule, land that would otherwise be excluded from a UGB may be included if: (a) The land contains a small amount of third or fourth priority land that is not important to the commercial agricultural enterprise in the area and the land must be included in the UGB to connect a nearby and significantly larger area of land of higher priority for inclusion within the UGB; or (b) The land contains a small amount of third or fourth priority land that is not predominantly high-value farmland or predominantly made up of prime or unique farm soils and the land is completely surrounded by land of higher priority for inclusion into the UGB. (4) For purposes of categorizing and evaluating land pursuant to subsections (2)(c) and (d) and section (3) of this rule: (a) Areas of land not larger than 100 acres may be grouped together and studied as a single unit of land; (b) Areas of land larger than 100 acres that are similarly situated and have similar soils may be grouped together provided soils of lower agricultural or forest capability may not be grouped with soils of higher capability in a manner inconsistent with the intent of section (2) of this rule, which requires that higher capability resource lands shall be the last priority for inclusion in a UGB; (c) When determining whether the land is predominantly high-value farmland, or predominantly prime or unique, “predominantly” means more than 50 percent. (5) With respect to section (1), a city must assume that vacant or partially vacant land in a particular priority category is “suitable” to satisfy a need deficiency identified in OAR 660-038-0080 or 660-038-0150, whichever is applicable, unless it demonstrates that the land cannot satisfy the need based on one or more of the conditions described in subsections (a) through (f) of this section: (a) Existing parcelization, lot sizes or development patterns of rural residential land make that land unsuitable for an identified employment need, as follows: (A) Parcelization: the land consists primarily of parcels 2-acres or less in size, or (B) Existing development patterns: the land cannot be reasonably redeveloped or infilled within the planning period due to the location of existing structures and infrastructure. (b) The land would qualify for exclusion from the preliminary study area under the factors in OAR 660-038-0160(2) but the city declined to exclude it pending more detailed analysis. (c) The land is, or will be upon inclusion in the UGB, subject to natural resources protection under Statewide Planning Goals 5 such that that no development capacity should be forecast on that land to meet the land need deficiency. (d) With respect to needed industrial uses only, the land is over 10 percent slope, as measured in the manner described in OAR 660-038-0160(5); is an existing lot or parcel that is smaller than 5 acres in size; or both. (e) The land is subject to a conservation easement described in ORS 271.715 that prohibits urban development. (f) The land is committed to a use described in this subsection and the use is unlikely to be discontinued during the planning period: (A) Public park, church, school, or cemetery, or (B) Land within the boundary of an airport designated for airport uses, but not including land designated or zoned for residential, commercial or industrial uses in an acknowledged comprehensive plan or land use regulations. (6) For vacant or partially vacant lands added to the UGB to provide for residential uses: (a) Existing lots or parcels one acre or less may be assumed to have a development capacity of one dwelling unit per lot or parcel. Existing lots or parcels greater than one acre but less than two acres shall be assumed to have an aggregate development capacity of two dwelling units per acre. (b) In any subsequent review of a UGB pursuant to this division, the city may use a development assumption for land described in subsection (a) of this section for a period of up to 14 years from the date the lands were added to the UGB. (7) Pursuant to subsection (1)(c), if the amount of suitable land in a particular priority category under section (2) exceeds the amount necessary to satisfy the need deficiency, the city must choose which land in that priority to include in the UGB by first applying the boundary location factors of Goal 14 and then applying applicable criteria in the comprehensive plan and land use regulations acknowledged prior to initiation of the UGB evaluation or amendment. The city may not apply local comprehensive plan criteria that contradict the requirements of the boundary location factors of Goal 14. The boundary location factors are not independent criteria; when the factors are applied to compare alternative boundary locations and to determine the UGB location the city must demonstrate that it considered and balanced all the factors. The criteria in this section may not be used to select lands designated for agriculture or forest use that have higher land capability or cubic foot site class, as applicable, ahead of lands that have lower capability or cubic foot site class. (8) The city must apply the boundary location factors in coordination with service providers and state agencies, including the Oregon Department of Transportation (ODOT) with respect to Factor 2 regarding impacts on the state transportation system, and the Oregon Department of Fish and Wildlife (ODFW) and the Department of State Lands (DSL) with respect to Factor 3 regarding environmental consequences. “Coordination” includes timely notice to agencies and service providers and consideration of any recommended evaluation methodologies. (9) In applying Goal 14 Boundary Location Factor 2, to evaluate alternative locations under section (7), the city must compare relative costs, advantages and disadvantages of alternative UGB expansion areas with respect to the provision of public facilities and services needed to urbanize alternative boundary locations. For purposes of this section, the term “public facilities and services” means water, sanitary sewer, storm water management, and transportation facilities. The evaluation and comparison under Boundary Location Factor 2 must consider: (a) The impacts to existing water, sanitary sewer, storm water and transportation facilities that serve nearby areas already inside the UGB; (b) The capacity of existing public facilities and services to serve areas already inside the UGB as well as areas proposed for addition to the UGB; and (c) The need for new transportation facilities, such as highways and other roadways, interchanges, arterials and collectors, additional travel lanes, other major improvements on existing roadways and, for urban areas of 25,000 or more, the provision of public transit service. (10) The adopted findings for UGB amendment must describe or map all of the alternative areas evaluated in the boundary location alternatives analysis.