City of Sandy v. Metro

EDMONDS, P. J. Metro, a metropolitan service district encompassing land in Multnomah, Washington, and Clackamas counties including the City of Hillsboro, passed an ordinance amending several provisions of its code. The amendment, among other things, moved Hillsboro’s urban growth boundaries and directed Hillsboro to examine its industrial zoning districts and amend them if necessary to conform to Metro’s direction. Hillsboro challenged the ordinance before the Land Use Board of Appeals (LUBA), arguing that, in enacting the ordinance, Metro exceeded its constitutional, statutory, and charter authority. LUBA rejected Hillsboro’s arguments, and Hillsboro seeks judicial review.1 ORS 197.850. We affirm. I. BACKGROUND Because this case concerns the scope of Metro’s authority, some background concerning the constitutional, statutory, and charter sour ces of that authority, as well as the relation of those sources to each other, will provide necessary context. In 1969, the Legislative Assembly enacted “The Metropolitan Service District Act,” subsequently codified as ORS chapter 268, in order to enable the creation of “multipurpose districts to provide public services in metropolitan areas.” Or Laws 1969, ch 700, relating clause and § 1. Metro, then known as the Metropolitan Service District, was formed in 1970; it dealt primarily with the Portland Zoo and sewage. In 1977, the Legislative Assembly amended chapter 268. The amendments specified that, despite its generic references to “metropolitan areas,” that term meant areas within the boundaries of Clackamas, Multnomah, and Washington — 485 — counties. Or Laws 1977, ch 665, § 2(3). The amended legislation assigned Metro a variety of land use planning responsibilities, including adoption of district land use planning goals and coordination of existing comprehensive plans within the district. Id. at § 17, codified as ORS 268.380 (1977). The statute required Metro to adopt “functional plans” to deal with particular issues of districtwide impact, including air quality, water quality, and transportation. Or Laws 1977, ch 665, §§ 18(1), (2), codified as ORS 268.390(1), (2) (1977). For over a decade, Metro existed purely as a creature of the legislature. Then, in 1990, the state’s voters passed a constitutional amendment allowing “any metropolitan service district” to adopt a charter enabling it to enact district legislation on matters of metropolitan concern. Or Const, Art XI, §§ 14(3), (6). Shortly thereafter, in 1992, Metro electors chose to avail themselves of Article XI, section 14; they adopted a charter and constituted Metro as a home rule district. The charter required Metro to adopt a “Regional Framework Plan” (RFP) to address growth management and land use issues that, in the opinion of Metro’s governing body, the council, would benefit from regional planning. Metro Charter, ch II, §§ 5(2)(a), (b). The charter specified that the council “may adopt the regional framework plan in components.” Id. “Functional plans” as described above — limited, issue-specific programs — are components of the RFP. Metro Code (MC) 3.07.010; 1000 Friends of Oregon v. Metro, 174 Or App 406, 423-24, 26 P3d 151 (2001). The ordinance at issue in this case is part of such a functional plan, the Urban Growth Management Functional Plan. Recognizing that Metro electors had “enacted a charter” and that there were “discrepancies and conflicts between [that charter and] state law,” the 1997 Legislative Assembly enacted a statute designed “to conform [Metro’s organic statute,] chapter 268 and other state laws to the 1992 Metro Charter.” Or Laws 1997, ch 833, § 2. This historical and structural background puts in perspective the issue presented by the disputed Metro ordinance. In order to affirm LUBA and conclude that the ordinance is valid, we must first conclude that the ordinance is within the authority that Metro has given itself in its own — 486 — charter; that the charter’s grant of authority is itself within the charter power conferred on Metro by relevant provisions of the constitution and statutes, in particular by Article XI, section 14, ORS 268.380, and ORS 268.390 (reproduced below); and that those constitutional and statutory provisions do not themselves violate any provision of the constitution, in particular Article XI, section 2, which deprives the legislative assembly of authority to interfere with a city’s ability to structure its own government. La Grande / Astoria v. PERB, 281 Or 137, 576 P2d 1204, adh’d to on reh’g, 284 Or 173, 586 P2d 765 (1978). II. THE METRO ORDINANCE As authorized by statute and by its charter, Metro has enacted an RFP, one component of which is a functional plan called the Urban Growth Management Functional Plan. ORS 197.633 requires periodic review of such plans by the Land Conservation and Development Commission (LCDC) in order to ensure compliance with statewide goals. In response to such a review, Metro passed an ordinance containing amendments to several provisions of its code. The dispute in this case focuses on several of those amendments. One of them designates a particular site (the Helvetia site) to be included within Hillsboro’s urban growth boundary, despite the fact that Hillsboro preferred a different site (the Evergreen site). The remainder of the disputed amendments (the “Title 4” amendments) apply to Hillsboro’s code. In LUBA’s terms, those Title 4 amendments “have the effect of requiring that cities within Metro’s jurisdiction take future action to amend their zoning ordinances and subdivision regulations to include specific limitations on certain lands that are planned for industrial and employment uses.” In particular, the Title 4 amendments restrict office and other commercial uses of industrial land in order to keep that land available for industrial development, contrary to the preference of Hillsboro. As noted above, Hillsboro challenged the amendments before LUBA; LUBA rejected the challenge, and Hillsboro renews its challenges on judicial review, making the same arguments that it made below. — 487 — Regarding the disputed change to Hillsboro’s urban growth boundary, Hillsboro bases its argument on the contention that Metro had an obligation to exercise “coordinative functions,” ORS 268.385(1), for “all planning activities affecting land uses within * * * Multnomah, Clackamas and Washington Counties,” including activities instituted by cities, ORS 195.025(1). According to Hillsboro, this coordinative function requires Metro to “amend [Hillsboro’s] urban growth boundary as requested by the City.” LUBA correctly concluded that LCDC had exclusive jurisdiction over this issue because, in essence, it involved interpretation of Goal 2: “Goal 2 requires that when Metro is adopting or amending its plans it must ensure that its new or amended plans are ‘coordinated with the plans of affected governmental units.’ * * * Hillsboro points to nothing in the text of [ORS 268.385(1) or ORS 195.025(1)] that would support its contention that when Metro is coordinating under the statutes it is obligated to do more than coordination under Goal 2 requires.” We agree with LUBA and do not discuss this issue further. The challenge to the Title 4 amendments is more complex. The amended ordinances to which Hillsboro objects are numbered Metro Code (MC) 3.07.420(A) to (F). Subpara-graph (A) provides that “[e]ach city and county with land use planning authority over RSIAs [Regional Significant Industrial Areas] * * * [must] derive specific plan designation and zoning boundaries of RSIAs within its jurisdiction * * *.” We presume that this subparagraph requires cities and counties to identify RSIAs according to a Metro prepared map and to use that map in adopting their own regulations consistently with Metro’s directives. Subparagraph (B), perhaps the provision capturing the essence of Hillsboro’s objection, requires that cities and counties amend their land use regulations to impose specific square footage limits on new retail development in RSIAs. “Cities and counties shall review their land use regulations and revise them, if necessary, to include measures to limit the size and location of new buildings for retail commercial uses — such as stores and restaurants — and retail and professional services that cater to daily customers— — 488 — such as financial, insurance, real estate, legal, medical and dental offices — to ensure that they serve primarily the needs of workers in the area. One such measure shall be that new buildings for stores, branches, agencies or other outlets for these retail uses and services shall not occupy more than 3,000 square feet of sales or service area in a single outlet, or multiple outlets that occupy more than 20,000 square feet of sales or service area in a single building or in multiple buildings that are part of the same development project[.]” Subparagraph (C) requires cities and counties to amend their land use regulations so as to prevent approval of nonindustrial uses in RSIAs if approval will overload or degrade roads. Subparagraph (D) prohibits new nonindustrial uses. Subparagraph (E) imposes various specific requirements when lots of more than 50 acres in RSIAs are subdivided. Subparagraph (F) imposes specific limitations on expanding nonconforming, nonindustrial uses in RSIAs. In sum, the amendments limit large retail, commercial, and medical facilities, limit the size of other nonindustrial uses, and allow division of large parcels only for uses compatible with large-parcel industrial developments. The purpose of the amendments, according to Metro, is “[t]o improve the region’s economic climate * * * by limiting the types and scale of non-industrial uses in Regionally Significant Industrial Areas * * *. Title 4 also seeks to provide the benefits of ‘clustering’ to those industries that operate more productively and efficiently in proximity to one another than in dispersed locations. Title 4 further seeks to protect the capacity and efficiency of the region’s transportation system * * MC 3.07.410. III. METRO’S AUTHORITY UNDER CHARTER, STATUTE, AND CONSTITUTION A. Metro’s charter and constitutional authority do not add to or subtract from Metro’s statutory authority. We agree with the parties that the pivotal provisions of the Metro Charter are Chapter II, subparagraph 5(2)(e) and subsection 9. The former provides: — 489 — “To the maximum extent allowed by law, the council shall adopt ordinances: (1) requiring local comprehensive plans and implementing regulations to comply with the regional framework plan within three years after adoption of the entire regional framework plan. * * * (2) requiring the council to adjudicate and determine the consistency of local comprehensive plans with the regional framework plan; (3) requiring each city and county within the jurisdiction of Metro to make local land use decisions consistent with the regional framework plan until its comprehensive plan has been determined to be consistent with the regional framework plan * * *; and (4) allowing the council to require changes in local land use standards and procedures if the council determines changes are necessary to remedy a pattern or practice of decision making inconsistent with the regional framework plan.” Section 9 of Chapter II provides: “When carrying out the functions authorized or assumed under this charter: (1) Metro has all powers that the laws of the United States and this state now or in the future could allow Metro just as if this charter specifically set out each of those powers; (2) the powers specified in this charter are not exclusive; (3) any specification of power in this charter is not intended to limit authority; and (4) the powers specified in this charter shall be construed liberally.” Because these provisions confer on Metro the authority to adopt, in essence, any ordinance that is authorized by law; because, as noted, ORS chapter 268 in general and ORS 268.380 and ORS 268.390 in particular were amended into their present form in order to make them conform to the Metro Charter; and because, in fact, the provisions of Metro Charter, Chapter II, subparagraph 5(2)(e) are repeated almost verbatim in ORS 268.390(5), we conclude that the question whether the Metro council was authorized by charter to enact the ordinances at issue does not differ from the question whether Metro had that authority by statute. In other words, the charter grants authority coextensive with that which is granted by statute and the constitution. Likewise, the constitution authorizes Metro to “provide for the exercise by ordinance of powers granted to the district by [other provisions of] the Constitution or laws of — 490 — this state.” Or Const, Art XI, § 14(3). No other provisions of the constitution confer relevant powers on Metro.2 Therefore, the question of Metro’s constitutional authority, like the question of its charter authority, reduces to the question of its authority granted by “laws,” that is, by statute. In short, the question of Metro’s authority is a question of statutory interpretation. B. Metro’s statutory authority Generally, Metro has “full power to carry out the objectives of its formation and the functions authorized pursuant to its charter,” ORS 268.300(1); it has the authority to “[ejxercise jurisdiction over * * * matters of metropolitan concern,” ORS 268.310(6); and it may “[a]dopt land-use planning goals and objectives for the district consistent with [statewide goals],” ORS 268.380. In particular, as set forth in ORS 268.390, “(1) A district may define and apply a planning procedure which identifies and designates areas and activities having significant impact upon the orderly and responsible development of the metropolitan area, including, but not limited to, impact on: “(a) Air quality; “(b) Water quality; and “(c) Transportation. “(2) A district may prepare and adopt functional plans for those areas designated under subsection (1) of this section to control metropolitan area impact on air and water quality, transportation and other aspects of metropolitan area development the district may identify. “(3) A district shall adopt an urban growth boundary for the district in compliance with applicable [statewide land use planning goals]. “(4) A district may review the comprehensive plans in effect on January 1, 1979, or subsequently adopted by the cities and counties within the district which affect areas — 491 — designated by the district under subsection (1) of this section or the urban growth boundary adopted under subsection (3) of this section and recommend or require cities and counties, as it considers necessary, to make changes in any plan to assure that the plan and any actions taken under it conform to the districts functional plans adopted under subsection (2) of this section and its urban growth boundary adopted under subsection (3) of this section. “(5) Pursuant to a regional framework plan, a district may adopt implementing ordinances that: “(a) Require local comprehensive plans and implementing regulations to comply with the regional framework plan within two years after compliance acknowledgment. “(b) Require adjudication and determination by the district of the consistency of local comprehensive plans with the regional framework plan. “(c) Require each city and county within the jurisdiction of the district and making land use decisions concerning lands within the land use jurisdiction of the district to make those decisions consistent with the regional framework plan. * * * “(d) Require changes in local land use standards and procedures if the district determines that changes are necessary to remedy a pattern or practice of decision-making inconsistent with the regional framework plan.” (Emphasis added.) The language of these statutes is not ambiguous. ORS 268.310(6) gives Metro authority over “matters of metropolitan concern.” Whether the Metro region contains sufficient land for industrial development is clearly such a concern, and petitioners do not contend otherwise. More specifically, ORS 268.390(4) gives Metro authority to require a city to change its plan to ensure that the plan “and any actions taken under it” conform to Metro’s functional plans. Hillsboro contends that, by specifying that Metro’s authority to require changes applies to a city’s “plan,” the provision, by negative implication, means that Metro lacks authority to require changes to particular parts of a plan. That contention cannot easily be squared with the language of the provision, — 492 — which permits Metro to make changes to a plan so as to conform the plan and any actions taken under it to Metro’s functional plans. And even if Hillsboro’s reading of subsection (4) is plausible enough to make that subparagraph, in isolation, ambiguous, the ambiguity does not survive consideration of subparagraphs (5)(a) and (c). Those provisions give Metro authority to adopt ordinances that “[r]equire” local plans, “implementing regulations,” and “land use decisions” to comply with Metro’s RFP. The disputed Metro ordinances were adopted to ensure compliance with its RFP, and those ordinances require Hillsboro to amend zoning ordinances, which are land use “implementing regulations.” ORS 197.015(11). Thus, ORS 268.390(5)(a) and (c) explicitly and directly authorize Metro to enact ordinances requiring Hillsboro to enact zoning ordinances that comply with Metro’s RFP. Hillsboro does not base its argument on a competing textual interpretation of ORS 286.380 and ORS 286.390. Rather, its arguments are contextual, oblique, and inferential. It contends, for example, that the ordinances in Title 4 are so detailed and particularized that, in essence, they transform Metro’s RFP into a comprehensive plan, contrary to ORS 197.015(16). That statute, however, provides only that “[n]either the regional framework plan nor its individual components constitute a comprehensive plan.” Id Hillsboro’s argument mistakes a descriptive statute for a prescriptive one; nothing in ORS 197.015(16) can plausibly be read to prohibit an RFP from performing some of the same functions as a comprehensive plan. Likewise, Hillsboro argues that the Metro Charter is a “special powers” charter, that is, one under which the chartered governmental entity may exercise only specifically enumerated powers, as opposed to a “general powers” charter, under which the entity assumes all power that could be conferred by state law. Therefore, Hillsboro reasons, because ORS 268.310 gives Metro the power to carry out the objectives and functions set forth in its charter, Metro’s organic statute must also envision a “special powers” entity. It therefore follows, according to Hillsboro, that, because Metro is — 493 — authorized to propose model terminology and standards for zoning laws, by negative implication it does not have authority to impose specific zoning laws. Because Metro can “require changes in local land use standards” if necessary to remedy a “pattern or practice” of local decision-making that is inconsistent with a RFP, ORS 268.390(5)(d), by negative implication it cannot require changes in other circumstances. These arguments fail because the premise underlying them is not accurate; regardless of what the founders of Metro may have thought they were creating, what they created in fact cannot be characterized as a “special powers” district. Indeed, it is difficult to imagine a charter that is less “special.” As noted, the charter states: “When carrying out the functions authorized or assumed under this charter: (1) Metro has all powers that the laws of the United States and this state now or in the future could allow Metro just as if this charter specifically set out each of those powers; (2) the powers specified in this charter are not exclusive; (3) any specification of power in this charter is not intended to limit authority; and (4) the powers specified in this charter shall be construed liberally.” Metro Charter, ch 2, § 9. A similar argument, equally unpersuasive, is that the ordinances in Title 4 are preempted by state laws empowering cities such as Hillsboro to enact a comprehensive plan, ORS 197.175(2), and to exercise zoning authority, ORS 227.090. Because the ordinances permit Metro to perform the same functions that the statutes allocate to cities, Hillsboro contends, the ordinances must give way. The flaw in this logic is apparent. Metro’s ordinances themselves are authorized by statute. Thus, Metro’s ordinance creating a plan or imposing a zoning regulation that conflicts with a city’s plan or regulation, pursuant to ORS 268.390(5), cannot be preempted by Hillsboro’s statutory authority to perform the same functions. Both Metro and Hillsboro derive their authority from statute, but the statute authorizing Metro’s authority explicitly states that Metro has the authority to bring cities like Hillsboro into compliance. — 494 — In sum, we conclude that, under its own charter, the constitution, and ORS chapter 268, Metro has the authority to enact the disputed ordinance as part of its RFP, even when that ordinance imposes requirements on Hillsboro that Hillsboro would not choose for itself. The constitution delegates authority to the legislature to enact legislation. That legislation, particularly ORS 268.380 and ORS 268.390, unambiguously confers authority on Metro to enact ordinances that require Hillsboro to enact ordinances bringing its land use regulations into conformity with Metro’s, Hillsboro’s oblique and inferential arguments to the contrary notwithstanding. IV. CONSTITUTIONAL LIMITATIONS ON THE LEGISLATURE’S AUTHORITY TO EMPOWER METRO We have concluded above that the Metro ordinance amendments are authorized by Metro’s charter; the charter is authorized by statute; and the statute is authorized by Article XI, section 14, of the Oregon Constitution. That conclusion, however, does not end our inquiry. When a challenge to a state statute under home rule provisions is made, the court’s decision must be derived from a standard arising from the constitution itself and not from the court’s own view of competing public policies that find their origin outside the language of the constitution. LaGrande / Astoria, 281 Or at 147. According to the Oregon Supreme Court, the appropriate analysis for interpreting provisions of the Oregon Constitution is to understand the wording in light of the way the wording would have been understood and used by those who created the provision and then to apply those principles as understood to modern circumstances as they arise. State v. Rogers, 330 Or 282, 297, 4 P3d 1261 (2000). Under those standards, Hillsboro argues that Metro’s ordinance amendments violate Article IV, section 1(5), and Article XI, section 2, of the Oregon Constitution. Section 1(5) of Article IV provides, in relevant part: “The initiative and referendum powers reserved to the people by subsections (2) and (3) of this section are further reserved to the qualified voters of each municipality and — 495 — district as to all local, special and municipal legislation of every character in or for their municipality or district.” Section 2 of Article XI provides, in relevant part: “The Legislative Assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon[.]” The language of Article XI, section 2, resolves the issue framed by Hillsboro’s argument. The home rule authority granted to Hillsboro is subject to the other provisions of the Oregon Constitution, including the plenary authority granted by the constitution to the state legislature. That authority has been described as follows: “[A] general law addressed primarily to substantive social, economic or other regulatory objectives of the state prevails over contrary policies preferred by some local governments * * * unless the law is shown to be irreconcilable with the local community’s freedom to choose its own political form. In that case, such a state law must yield in those particulars necessary to preserve that freedom of local organization.” LaGrande / Astoria, 281 Or at 156 (footnote omitted). A similar principle is in play here. The formation of Metro and its exercise of regulatory power are authorized by the constitution itself. In the exercise of its plenary authority under the constitution, the legislature enacted statutes that grant authority to Metro to coordinate existing comprehensive plans within the district and to assign responsibilities regarding issues of districtwide impact. Pursuant to that constitutional and statutory authority, Metro directed the Hillsboro City Council to examine its industrial zoning districts and amend them if necessary to conform to Metro’s direction. Because the constitution contemplates the exercise of regulatory power by Metro districtwide and because the grant of authority to home rule cities in the constitution is a limited grant of authority subject to other provisions of the constitution, Hillsboro’s authority to determine the location of industrial zones and to enact enabling legislation must — 496 — yield to the legislature’s plenary authority derived from the constitution itself. Said otherwise, the exercise of such authority by the legislature is not irreconcilable with Hillsboro’s freedom to chose its own political form because of Metro’s districtwide regulatory objectives. Affirmed. Footnotes [1] Before LUBA, the petitioners were the cities of Sandy and Hillsboro. Biles Family, LLC, Robert Bailey, Patricia Bailey, and 1000 Friends of Oregon were intervenors. On judicial review, Hillsboro is the sole petitioner and Metro the sole respondent. Two amicus curiae briefs were filed in support of Hillsboro, one from the League of Oregon Cities and one from a group consisting of the Greater Hillsboro Chamber of Commerce, the Westside Economic Alliance, the Association of General Contractors — Oregon Columbia Chapter, the Specht Development, Inc., and the Urban Developers Coalition. [2] Article IV, section 1(5), gives initiative and referendum powers to the voters of districts. The ordinances at issue in this case were not enacted in the exercise of those powers.