Agenda Item 4 - UGB Rulemaking <br />December 3-4, 2015 - LCDC Meeting <br />Page 43 of 56 <br />that the impracticability measures as proposed in the September 10 draft rule were overly <br />simplistic and could inappropriately permit the exclusion of some lands from the study area. <br />In response to this input, the department proposed three alternative concepts for determining <br />impracticability which were presented and discussed at the October 29 UGBRAC meeting. <br />Those alternatives were: (1) retain (and refine) the current draft rule approach of simplified, <br />measurable identifiers; (2) retain only the slope based identifier from the current draft; <br />incorporate the other identifiers into a non-exclusive list of "impediments to service delivery" <br />that could be the basis for study area exclusion based on specific findings that consider both cost <br />of services and development yield of land to be excluded; and, (3) retain some or all of the <br />simplified identifiers from the current draft rule for division 38 (i.e. the simplified process) only. <br />Division 24 (traditional process) would provide only for the findings based impracticability <br />exclusion. <br />While there was support from some UGBRAC members for retaining the concept of objective <br />measures represented by alternative (1), other members expressed the view that such simple <br />factors are too coarse, and that more refined, fact specific analysis, is necessary. There was <br />general acknowledgment that the array of variables involved in evaluating the feasibility of <br />public service delivery is difficult to fully account for using only simple, objective measures. <br />Based on this discussion, the department has proposed rule language for this section that <br />combines features of the three alternatives. <br />Subsections (5)(a) and (b): retain two measureable qualifiers based on slope and major freeway <br />improvements, respectively. <br />Subsection (c): provides for a general determination of impracticability, to be justified by <br />findings that must address specified considerations, but without distinct, measureable thresholds. <br />Subsection (d): sets forth a non-exclusive list of impediments that may provide the basis for such <br />findings. <br />Finally, the impracticability section for division 24 retains the slope based standard as the single <br />categorical qualifier. Major freeway improvement was eliminated as a categorical qualifier due <br />to the longer planning period (20 years vs. 14 years) specified for UGB amendments using the <br />traditional process. The findings based determination requirements and list of impediments are <br />the same as those in division 38. <br />For purposes of division 38, fashioning impracticability as a findings-based determination <br />without measureable thresholds for compliance introduces an element of subjectivity into the <br />study area identification process. This does represent a departure in concept from the otherwise <br />mostly objective measures of division 38. However, given the complex, fact-specific nature of <br />the impracticability determination, and the necessity to ensure that the factors set forth in the <br />statute are considered in every case, the department has concluded that this is necessary. <br />