Some Thoughts on the Law of Population Projections

ORS 195.036 requires counties to “establish and maintain” a population forecast to be used by the county and cities within the county when updating their comprehensive plans.  The statute also requires the forecast to be “coordinated” with affected local governments – presumably cities and special districts.  But what, exactly, does it mean to “establish and maintain” a forecast, or “coordinate” it with the affected local governments? There are precious few cases on the subject but in practice, compliance has fallen into two categories.  The first category includes those counties that adopted (and may periodically update) a single forecast for the entire county.  DLCD recently contacted all 36 Oregon counties to determine how many have adopted this type of forecast and discovered it is less than half.  The remaining counties constitute the second category in which the county simply adopts a forecast for each city, often proposed by the city itself.  As one DLCD staffer commented, “As long as the same number is adopted by both the city and county, it’s ‘coordinated.’”

Some in the planning community advocate a hard line approach under the first category.  For example, in Polk County v. DLCD, 217 Or App 521 (2008), the county adopted an unincorporated community designation covering a portion of the county.  The county’s decision included a population projection which the county relied upon to determine the proper size and zoning of the area.  On appeal, 1,000 Friends of Oregon argued that, because the County had not adopted a county-wide forecast under ORS 195.036, it could not rely on the forecast in the decision.  The Court of Appeal rejected the argument, holding that nothing in the statute or the administrative rules for unincorporated communities requires such an outcome.

In subsequent correspondence in another jurisdiction, 1,000 Friends restated and extended their argument, writing “ORS 195.036 requires all population forecasts used in updates to comprehensive plans, whether for UGB amendments, URA designations, or other purposes, to be components of a coordinated countywide forecast that includes individual forecasts for each urban area within the county’s jurisdiction.” In addition to UGBs and URAs, “other purposes” include such things as transportation system plans, public facility plans and the unincorporated community designation at issue in Polk County.  While acknowledging that counties “may be discouraged” by the cost involved in developing this type of forecast, 1,000 Friends nonetheless concludes that adopting a separate forecast for each city “is not the answer.”  Significantly, 1,000 Friends does not advocate making funding available to counties or that LCDC should take action against those counties that refuse to comply with the statute.  Instead, 1,000 Friends is apparently content to simply shut down comprehensive planning across most of the state until the counties can scrape together enough money (and the political will) to adopt county-wide forecasts.  This is indeed a strange position for an organization which considers itself an advocate for land use planning to take.

Whether a county opts to produce a county-wide forecast or to adopt individual forecasts for each city, a county decision adopting a population forecast must be based on substantial evidence.  In Meyer v. Douglas County, LUBA 2010-004 (July 2010), LUBA held that the law “requires the county to evaluate historical data” and that the decision must be based “on reliable data [taking] into account long term trends and events.”  Moreover, LUBA wrote, “With respect to City forecasts, the cities may have adopted their own population forecasts as part of their comprehensive plans.  If so, those forecasts may have some bearing on the county’s projections . . . [a]nd might well provide an adequate factual base for the cities’ projected populations.”  In short, expressed in Goal 2 terms, there must be an adequate and reliable factual basis for the county’s decision.

This is not just playing with numbers.  Regardless of whether a city elects to grow up or out (we believe up is the better choice), land use planning must begin with an accurate assessment of the number of people the city will have to accommodate.  Whether to install a 12-inch or 16-inch sewer line depends on the number of bathrooms the city can expect.  The size – and therefore the cost - of public facilities such as water lines, pump stations and treatment plants are all predicated on an assessment of future demand. Under-building these facilities means additional and unnecessary downstream costs for things like expanding treatment plants, ripping out and replacing transmission lines and expanding pump capacity.  Of course, because no one has a crystal ball, mistakes will be made occasionally but to consciously undersize these facilities by intentionally underestimating population growth is simply bad planning and a criminal waste of public resources.

So what happens if a county simply declines to adopt any population forecast?  For example, Clackamas County is on record that it will not adopt a county-wide forecast and the county planning commission recently declined to adopt an individual forecast for the City of Molalla (which is updating its comprehensive plan for the first time since it was adopted in 1981).  Can the city proceed with its comprehensive planning?  According to 1,000 Friends hard-line approach, the answer is “no.”  Until the county adopts a county-wide forecast, which it has stated it will not do, neither Molalla nor any other city in the county can update its comprehensive plan.  Even under the individual-forecast approach, a city such as Molalla is stymied in its planning efforts until the county adopts an individual forecast for the city, which, again, the planning commission has rejected.  At this point, it’s an open question whether Clackamas County is complying with its obligations under ORS 195.036 but it’s clear that Molalla is stuck until the county acts.

In short, an accurate population forecast is the fundamental building block for land use and public facility planning. Yet, the law regarding these forecasts is a mess, consisting of an ambiguous statute, counties that refuse to implement it, a state agency that so far has declined to require compliance and interest groups that would use it to shut down planning across the state.  The legislature should simply repeal the statute and allow cities to adopt population forecasts based on the evidentiary standards articulated by LUBA in Meyers v. Douglas County.  Until then, any city or county which tries to adopt a population forecast is likely to encounter significant political headwinds and repeated appeals – all at substantial costs to the very public the planning program is intended to serve.