Category Archives: LWNR

OSU Launches Net Zero Initiative

A four-year university program in Bend has and continues to be supported by the community as a critical component for the vitality of the Central Oregon region.  A four-year university program with OSU Cascades is necessary to expand access to a skilled workforce and attract living wage businesses to locate and grow in Central Oregon.  In launching its Net Zero Initiative http://www.osucascades.edu/news/gifts-help-launch-osu-cascades-net-zero-campus-initiative , OSU Cascades demonstrates that it can provide leadership far beyond the “what” in four-year programming.  While the four-year campus location is controversial for certain citizens, the campus location also provides an opportunity to lead in the “how” of campus planning and programming.   The Net Zero Initiative would create a campus whose energy consumption, water use and waste disposal is completely offset by energy production and conservation and water and waste recycling.  A Net Zero campus http://www.osucascades.edu/4/sustainable-campus is not only about the legacy left to future generations, but also provides an opportunity for current residents to participate in and benefit from an industry innovation cluster in green energy and sustainable technologies.  It also improves the competitiveness of the university for high-quality students who can use the campus as a live laboratory.  This, in turn, benefits the skilled workforce and attractive business climate in Bend.  Importantly, the co-location of these facilities and amenities within a clustered campus is likely necessary for such a vision to become a reality.  Such co-location of facilities also demonstrates the true value of a master plan.  Although opponents to the campus assert master planning is necessary for the 10-acre site, two levels of city decision makers have said that the 10-acre campus can move forward standing alone, without master planning and without any changes to the current zoning for that site.  However, it is likely that current zoning districts that could be applied to the 46-acre site do not contemplate siting all of the facilities necessary for a Net Zero campus.   Unlike the 10-acre site, the master planning provisions will provide an opportunity to comprehensively review the campus plan on the 46 acres, including unusual features associated with the Net Zero Initiative, ensure impacts are addressed appropriately and apply a master planned district that can facilitate features not otherwise allowed.  In summary, OSU Cascades’ Net Zero Initiative is offering leadership that will benefit the community in a variety of ways.  It will not only ensure a responsible legacy, but will strengthen the four-year university in ways that will directly benefit the Central Oregon economy and communities and will also ensure that a robust master planning process will occur for the campus.

Master Planning the Campus

OSU-Cascades is planning a four year university in Bend and has identified a location on the west side of Bend.  Initially, the university bought a 10 acre parcel and is seeking a site plan approval for a portion of its needs for its four year campus.  Adjacent to this 10 acres is a separate 46 acre property on which the university has an “option” to purchase—meaning, it has a right, but not an obligation, to purchase the property.  The university has stated that its decision on whether or not it will in fact purchase the property depends on certain due diligence about whether the property is suitable for development, among other factors in its sole discretion.  If the university purchases the 46 acre property, it would plan to develop the property for additional university campus needs.

Some in the community, most notably the university’s opponents Truth in Site, have argued that OSU-Cascades was obligated to “master plan” both properties before it can proceed with any development on the 10 acre property.  What is a master plan exactly?  It can have many meanings—from nefarious super villainy to mundane long range land planning.  The Bend Development Code (BDC) doesn’t specifically define what a master plan is, but its Chapter 4.5, which addresses master planning and development alternatives, identifies the purposes of master planning.  Master planning under the BDC is intended to encourage efficient and interrelated development of land that results in complete neighborhoods, mixed use development, open space protection, transportation options, site phasing of development, protection of features and amenities that otherwise would not be protected, energy conservation, infrastructure improvements, among others.  In summary, it’s more the mundane variety intended to provide more comprehensive and interrelated planning options and outcomes that may be difficult to achieve with straight zoning application.

But does the City’s master planning ordinances apply to the campus planning?  And if so, is it discretionary or mandatory?  There are two provisions of likely relevance.  First, the section addressing Master Planned Developments states that it “may be applied over any of the City’s land use districts for any property or combination of properties three (3) acres or greater in size.”  BDC 4.5.300.  This section is therefore permissive, meaning a developer may choose to follow the Master Planned Developments, but such developer is not required to do so.  That makes sense because these provisions appear intended for developers who seek to change one or more of the development standards contained in the ordinance—meaning, it is intended to provide flexibility in the requirements where needed or desired to accomplish a certain development concept.  For OSU-Cascades, that does not appear to be the case with the initial 10 acre application; however, it may be useful in its 46 acre development if it chooses to advance that.

Second, the BDO applies Master Planned Neighborhood Development in two circumstances:

  1. Mandatory Project Planning.  “For projects consisting of one or more properties totaling 20 acres or larger at the date of adoption of this ordinance a Master Planned Neighborhood Development shall be required.”  BDC 4.5.300.  This provision, while mandatory, would not appear to capture the OSU-Cascades campus project at this time because it is arguably only a 10 acre project.  The university is not legally obligated or even internally committed to building out the 46 acre property, and they have indicated that if the 46 acre property is not desirable they will pursue other expansion avenues.  Even if the 10 acre and 46 acre properties are properly considered one project (or considering the 46 acre property alone), the BDC language states that it is only required for such projects “at the date of adoption of the ordinance” which clearly pre-dated any identified campus expansion project at the sites.  In other words, the OSU-Cascades “project”—whether both phases or only the second phase—was not a “project” “at the date of adoption of the ordinance.”  It is unclear why the provision reads this way, but presumably, the City identified certain projects at the time it was considering the ordinance to which it desired master planning provisions to apply.  After adoption, the ordinance appears to base application on property acreage as defined below.
  2. 40 Acre or Larger Properties.  Master Planned Neighborhood Development applies “to all properties comprised of one or more lots, parcels, and/or tracts, in any zoning District which totals 40 acres or larger at the date of this ordinance adoption.”  This clearly does not apply to the 10 acre property since it is neither 40 acres nor in the same zoning district as the 46 acre property.   While the 46 acre property appears to meet the size requirement, it still seems unlikely the master planning provisions are required, because they appear to be required only “prior to land division approval.”  In other words, if OSU-Cascades does not plan to subdivide the 46 acre property, no master planning is required.  This provision appears intended to prevent haphazard parcelization of larger lots that result in poor urban form or access to services or unintended impacts.  It is not entirely clear whether OSU could choose to apply these provisions, as there is no clear permissive language allowing such properties to opt into the master planning provisions.

In summary, the Bend Development Ordinance does include master planning provisions.  Such provisions do not appear to apply to the 10 acre property currently under review by the City.  If OSU-Cascades pursues the 46 acre property and intends to modify certain zoning district requirements, it would need to pursue Master Planned Development under BDC 4.5.300 for that 46 acre property.  Similarly, if OSU-Cascades intended to partition or subdivide the 46 acre property, it would need to purse Master Planned Neighborhood Development under BDC 4.5.400; however, if neither of these circumstances applies, it appears that no master planning can be required of the university.

Bend’s Urban Growth Boundary – What does it mean?

Oregon’s comprehensive land use policy is based, in large part, on the overall premise of protecting resource lands, such as agricultural and forest lands, from conversion to non-resource uses, such as residential or commercial uses.  One factor in this policy is the promotion of orderly and efficient urban development within formally designated urban areas, or urban growth boundaries (“UGB”).  These UGBs are intended to supply adequate land for urban development over a 20 year time period.

In 2009, the City sought to expand its current boundary to meet demonstrated residential and employment land needs. That effort resulted in a partial “remand”, or “re-do” of the City’s decision from the state Land Conservation and Development Commission (“LCDC”).  In particular, LCDC directed the City to re-evaluate how it considered which directions to grow and whether certain uses could in fact be accommodated within the existing UGB, among other considerations.

State-mandated policies directing land priorities and infill development are major factors underlying the City’s need to re-do its expanded boundary.   For example, Juniper Ridge was identified for inclusion into the UGB, in part, based on an identified need for a four year university.  However, the State specifically rejected this inclusion on the basis that the City had not adequately explained why a university could not be accommodated within the existing UGB.  And indeed, with OSU-Cascades’ selection of a four year university site(s) within the UGB, the merits of additional land outside the existing UGB for university use have proven to be inaccurate.  Similarly, the City selected for expansion land to the east of town in a lower land priority category in part based on certain “suitability” factors.  The State rejected many of those factors and has directed the City to more closely follow strict state mandated priority categories in its boundary analysis.

The State’s remand order, while it places certain prescriptive limitations, does not mean that Bend residents do not have a say in the expansion process or outcome.  In fact, this week kicked off the City’s public involvement process that will accelerate the City’s UGB expansion process.  While, legally, the City has until June, 2017, to adopt a new expanded boundary, the City Council decided to complete its UGB adoption by April of 2016 to help alleviate land need pressures and resulting escalation of prices being felt currently in the City.  No small feat.  Indeed, the City has already been at this for a decade, having started the UGB process initially in 2004.

The City has some fair amount of discretion in how it weighs certain factors.  For example, community desires surrounding traffic facilities, transit, natural resource amenities, service centers, affordable housing, and sustainability can all factor into how the City will weigh different boundary scenarios.  Importantly, however, these desires have to pertain to specific housing and employment needs, the efficient accommodation of identified land needs, the orderly provision of public facilities and services, a comparison of environmental, energy, economic and social consequences, and compatibility with nearby agricultural and forest activities.  The City is seeking broad public feedback with an interactive survey tool on its website. In addition, the City has convened citizen technical advisory committees  to advise on certain elements of the remand order and the City’s process. This outreach will be important for the City in establishing a strong foundation, and factual record, on which to base its ultimate choices within the overarching state-mandated urban expansion policies.

Bend Metro Parks System is an Important Asset to Bend’s Tourism Economy

Recently, the City Club of Central Oregon hosted a forum on what’s next for Central Oregon’s Recreation and Tourism Assets.  The discussion included a well informed panel about the role that recreation plays in Central Oregon’s tourism economy with a focus on Bend being a main tourism driver for the region.  According to VisitBend, 2.2 million people visit Bend annually (which is likely a higher number if you consider the region), there are 8,840 jobs in central Oregon because of tourism, and the annual tourist spending is $526 million.   An important role, indeed.

While there are distinct tourism assets, such as the Bend Ale Trail, golf courses, arts and entertainment events and venues, among others, the panel tended to be more focused on the recreation assets in the context of having access to nearby public land.  In particular, there was significant discussion surrounding the impact of Bend’s growth on the quality of the recreational experience on nearby public lands.

Bend is growing as a city and will continue to grow, including an expanded four year university.  As Bend grows, a vibrant trail and recreational system in the metro area will remain of vital importance.  Accordingly, the cornerstone of Bend’s recreational access and quality could be the assets developed and managed by the Bend Metro Parks and Recreation District. The District manages 2,659 acres of land—1,531 acres of which are developed—manages 65 miles of trail, much of it along the scenic Deschutes River, and is currently implementing a $29 million bond measure to expand the community’s recreational amenities. This bond measure will fund numerous Deschutes River Trail connections and parks, including a whitewater park.  The intended result is to allow for a fully connected trail from Sunriver to Tumalo State Park.  Visitors and residents of Bend are and will be able to efficiently access these trails and parks and enjoy quality experiences without having to access public lands to receive the high quality recreational experiences.  In addition, numerous events are accommodated through the metro parks system, which directly attract tourism dollars.

For trail systems located close in to town, such as Phil’s trail, where users value efficient access and quality trails, additional trail development within the system and on nearby public and private lands and directional improvements will help maintain quality user experiences as demand increases.  However, particularly for these closer in trail systems, having a robust and beautiful metro trail system will be critical for addressing increased demand. For some users, the metro system can provide the same level of recreational amenity and thus reduce or mitigate increased demand on the public land trail system.

There is no doubt that many people will desire wilderness type experiences on the public lands.  However, backcountry activities are typically only accessed by a much smaller number of visitors with the skills, desire and equipment to enjoy backcountry hiking, skiing, fishing, climbing or whitewater kayaking, among others.  Nevertheless, additional amenities are in the process or planned for development on the national forest lands, including new trails, snow parks, a Cascades Mountain hut route and additional trails and amenities at the Mt. Bachelor ski resort.  Fundamentally, however, the ability of the federal forests to accommodate increased levels of activity will be limited to ensure the protection of wildlife and habitat—for example, federal permits for events such as running and bike races contain participant caps. While a metro system is not designed to deliver wilderness type experiences, it is designed to provide access to recreational activities that may, initially, be out of reach for residents or visitors in the backcountry.  Indeed, recreational access is a significant concern, particularly for lower income visitors and residents. Accordingly, the metro park system fills a recreational need that cannot be met by the public lands and also provides opportunity to lower barriers to access, by offering nearby amenities and training in a diverse set of recreational skills.  In addition, the metro park system appears likely to continue to be developed in a manner that helps to accommodate race event venues thereby helping to mitigate some demand on the public trail systems.

Last, climate change may directly impact the recreational amenities available on nearby public lands.  Adaptability and resiliency are important concepts for adjusting to the impacts of climate change.  A robust metro trail system may very likely be a critical asset that will provide resiliency to our region’s recreational assets.

In summary, Bend’s tourism economy is intimately tied to high quality, trail and outdoor oriented recreational amenities.  Focus can often be concentrated on the recreational system located on public lands as the driving force behind Bend’s recreation tourism economy.  While there is no doubt the public land amenities, including a developed ski resort, offer world class recreation, it is important to consider how critical the Bend Metro Parks and Recreation District’s trail and recreation system is to providing access to outdoor recreation, to meeting recreation demand, and to supporting the quality of recreational assets in the region.

Land Use Considerations Related to OSU-Cascades Campus Expansion Site

OSU-Cascades is planning to expand its programming to a four year degree university and is seeking to develop an integrated campus on vacant land on the west side of Bend.  The site selection has garnered both support and concern from west Bend residents.  The university is pursuing the location, stating that the location is both developable within its limited budget (including land value and infrastructure improvement costs) and is near necessary amenities to attract high caliber students. Currently, the university has a 10 acre site plan pending before the city of Bend under Oregon’s land use laws and plans future applications to address the full campus build out, hopefully on an adjacent 46 acre property.  Oregon’s land use system can be complicated, yet it is intimately related to some of the concerns raised about the site selection and potential development impacts.

  1. The Site is inside Bend’s Urban Growth Boundary.  Cities are designated as urban areas—on purpose under Oregon land use laws, which are intended to prevent sprawl and protect resource lands.  If the university were to select a location outside of the urban growth boundary (UGB), urban levels of amenities would be prohibited from growing out to support it, unless the UGB is later expanded to include the campus.  However, UGB expansions are undertaken under very restrictive statewide standards, and such a result is highly speculative.
  2. The Site is Developable Land within the UGB.  The university’s current site is developable land within the urban growth boundary which mandates certain densities. The city of Bend is undertaking a UGB expansion process that was originally turned down by the State, in part, because the City could not justify the number of acres it desired to take in.  In other words, the City will be required to implement policies that ensure development densities that justify its UGB expansion area.  In summary, in light of the policy requiring infill development to meet these density requirements, it is unlikely that a vacant site inside the UGB will remain so.
  3.  The Land Use Process is About Identifying and Addressing Development Standards.  Understanding that the site a) is in an urban area and b) is unlikely to remain vacant, the issue then becomes what development impacts are allowed under Oregon land use laws.  All development has impacts.  Whether the site is developed as a shopping center (which has been under consideration) or a university campus, the Oregon land use system is designed to mandate certain development standards that require the developer to identify potential impacts, and find ways to avoid, reduce or mitigate them to meet the standards. Importantly, the land use system is “standards based,” and the process will only consider the subject of the application. In other words, if the developer can meet the standards, the City will have no basis to deny the application.  Of high relevance to the site selection, such standards include meeting traffic safety standards, including those very expensive ones imposed by ODOT at the Juniper Ridge site, thereby taking Juniper Ridge out of consideration.  In contrast, the City is currently considering and will make a decision on only the 10 acre proposal at the west Bend site, which does not appear to require the same magnitude of traffic infrastructure costs.
  4. The University is Proposing a Phased Development Process, but the Full Build Out Impact will be Addressed.  As noted above, the City will not at this time consider all of the impacts of a full 56 acre build out of the area, because the university is only currently applying for a 10 acre build out and because the university is still undertaking due diligence on the remaining 46 acres for development.  Concerns about the full build out of the campus will be studied and made part of the university’s future land use application(s).  The future phase(s) will include the same open land use process and will be designed to apply the development standards to the land use application(s).  Importantly, the City’s consideration of development impacts is cumulative—meaning, with the future application(s), the City will consider impacts on top of then-existing impacts of the 10 acre phase, so that the full development impact will be considered.
  5. OSU Cascades Public Process Exceeds that Required by Oregon Land Use Laws.  Of note, OSU Cascades has voluntarily opened up a community advisory committee process and a regional collaboration effort to collect and share information to help it plan for the future development phase(s) and achieve desired community and university outcomes.  This advisory committee and collaboration process is not required under Oregon land use law and is not a common practice for private developers.
  6. Food For Thought: Consider Development Characteristics.  While the City may be prohibited from denying an application that meets the standards, it can impose conditions that are reasonably necessary for ensuring compliance with a particular standard.  The nature of the conditions will be directly related to the characteristics of the proposed use.  OSU Cascades may provide some unique opportunities for managing development impacts that other developers may lack.  For example, OSU can control its enrollment; it can control when courses are offered to help manage traffic; and it can plan for student transit, living and life arrangements to reduce traffic trips and off campus impacts.  In contrast, a shopping center would not have these tools to mitigate impacts.
  7. You Can Get Involved, But Collaborative Input is Most Effective.  The Oregon land use process is open to public participation.  And, as noted above, OSU Cascades has voluntarily initiated a citizen advisory process related to the campus expansion and a regional collaboration effort to address expansion issues and more.  Anyone can get involved; however, involvement is most constructive and effective if it focuses on becoming informed and on being open to offering solutions where some can be had.  There are many examples, including the southern crossing bridge, where constructive and collaborative public participation shaped a result that improved the outcome and satisfied numerous interests.

Forest Owner Opportunities in California’s Cap and Trade Program

In 2006, California passed Assembly Bill (AB) 32, the Global Warming Solutions Act, directing the California Air Resources Board (ARB) to develop a program to reduce greenhouse gas emissions to 1990 levels by the year 2020 in California.  ARB developed its Cap and Trade Program, and 2013 saw the start of mandatory compliance obligations.  In general, the program sets emission caps which reduce over time and which trigger emission compliance obligations.  To comply with the program, covered entities such as electric utilities or fuel refineries must acquire either emission allowances (“Allowances”), issued by the ARB, or carbon emission offset credits (“Carbon Offsets Credits” or “COC”) from COC project owners/developers (collectively, “Compliance Instruments”) and then surrender these Compliance Instruments to the ARB for their covered emissions.

The Carbon Offset Credit component of the program creates opportunities for forest owners in the lower 48 states to participate and receive revenue for being a COC provider.  As part of the Compliance Offset Program, the ARB has adopted four Compliance Offset Protocols under which projects can be developed, implemented and verified for issuance and sale of Carbon Offset Credits:  Ozone Depleting Substances Projects Protocol, Livestock Projects Protocol, Urban Forest Projects Protocol, and US Forest Projects Protocol (the “Forest Protocol”).

The COC creation market has the potential to be significant.  Unlike voluntary carbon credit markets, California Carbon Offset Credit prices are responsive to regulatory floors and requirements—namely, the ARB sets a price floor for the Allowance auctions which helps to support COC prices.  COC prices are discounted to the Allowance price because Carbon Offset Credits may comprise only 8 percent of a covered entity’s compliance obligation.   For example, the 2014 floor price for an Allowance is set at $11.34, and the 2014 Allowance budget is 159.7 million Allowances—meaning there is an opportunity in 2014 to market approximately 13 million offset credits at prices that could range from $8-10 per offset (or higher if the allowances trade higher than the floor price).  This annual market opportunity grows in later years due to additional covered entities entering the regulatory program (for example, the Allowance budget jumps to 394 million Allowances in 2015).  Further, there is flexibility in the market as Carbon Offset Credits may be banked for future year compliance obligations.

Eligibility of forest lands for the Forest Protocol depends on the project type.  The Forest Protocol identifies three different project types: 1) Reforestation; 2) Improved Forest Management; and 3) Avoided Conversion.

  • Avoided Conversion projects may only occur on privately owned (including tribal) land, unless the land is transferred to public ownership as part of the project.  Lands are only eligible if it can be demonstrated that there is a significant threat of conversion of project land to non-forest land use.
  • Reforestation projects are limited to lands that have had less than 10 percent tree canopy cover for a minimum of 10 years or have been subject to a Significant Disturbance removing at least 20 percent of the land’s above ground live biomass in trees.  The projects may occur on private land, tribal land or on state or municipal public land.
  • Similarly, Improved Forest Management projects may occur on private, tribal or state/municipal lands.  These projects involve management activities that maintain or increase carbon stocks on forested land relative to baseline levels of carbon stocks.  To be eligible, these lands must contain more than 10 percent tree canopy cover.

Notably, federal lands, except for tribal lands, are not eligible for any of the projects.  The exclusion of federal lands creates a significant opportunity for private and tribal forest owners to participate in the carbon market and create additional asset value.  The Carbon Offset Credits create opportunity for an annual revenue stream. And, importantly, some of the Forest Protocol projects are not incompatible with ongoing timber management objectives, but may, in fact, help generate revenues that can assist in overall forest health and timber management objectives such as through thinning projects and/or biomass removal.  The Carbon Offset Credit revenues could also be rolled into other management objectives, for example, forest land acquisition.  However, there is a cost to entry and ongoing management costs for reporting and verification which should be factored into any project projection.

Any forest owner interested in the program should contact a reputable professional to assist them in a feasibility review of the Forest Protocol and the forest owner’s lands, forest composition and management practices and objectives.  This would evaluate potential size of project, credit generation and revenue and cost projections.  For example, under the Improved Forest Management protocol, project sizes under 5,000 acres may not make financial sense standing alone, but could perhaps be aggregated with other land holdings.  In addition, invalidation and other legal risks should be evaluated.

In summary, the California Cap and Trade Program is large enough and valuable enough to entice interest in forest carbon offset project development on private and tribal lands.  These offset projects can create additional value for forest owners, but only if they are consistent with existing overall management objectives. While the market is regulated, it is also still emerging.  Accordingly, it is important to evaluate the risks as well as the opportunities before committing to a project.

Important Oregon Court of Appeals Decision Affecting Municipal Water Right Permit Extensions

Yesterday, the Oregon Court of Appeals issued its decision in WaterWatch of Oregon, Inc. v. Water Resources Department, et al., which affects water right permit extensions for municipal uses under ORS 537.230(2).  WaterWatch challenged the Department’s procedure for issuing extensions to municipal water right permit holders.  Under current law, a municipal permit holder must complete construction and make full beneficial use of water within 20 years in accordance with the terms of the permit.  If construction cannot be completed within this deadline, the municipality may seek an extension to complete the construction.  The extension then allows the municipality to begin using the yet “undeveloped” portion of the permit. The extension statute requires that the Department take into consideration the effect on certain protected fish species caused by the municipality’s use of this as yet undeveloped portion of its permit.

The issue before the court of appeals was how to determine the size of the undeveloped portion of the water right permit.  The Department argued that the undeveloped portion was the difference between the permitted amount and the amount actually used by the municipality at the time the last extension was requested (in this case December 2007).  WaterWatch argued that the undeveloped portion of the permit should be measured as of the expiration date of the previous extension period (in this case October 1999).  After a thorough examination of the facts and statutory history, the court concluded that “[a]lthough this is a close case, based on a contextual reading of the statute and the legislative history, we conclude that petitioner [WaterWatch] has the better view.”

For further information, a copy of the decision can be found here.

 

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