91视频

As the affordable housing crisis continues across the region, developers should always be seeking an edge to get their projects approved. Enter Oregon鈥檚 鈥渘eeded housing鈥� statutes.

These statutes are set out at ORS 197.295 to ORS 197.314 and should be in every builder鈥檚 toolbox for residential developments. When enacted 40 years ago, the needed housing statutes incorporated into law the 鈥淪t. Helens policy,鈥� to end attempts by local governments to exclude certain housing types that met lower, moderate or 鈥渓east cost鈥� housing needs. Since their adoption, the needed housing statutes have been extended to most residential developments, making efforts to gain approval substantially easier.

The central provision of the needed housing statutes is the 鈥渃lear and objective鈥� requirement of ORS 197.304(4). Local government may adopt and apply only clear and objective standards, conditions and procedures regulating the development of housing, including needed housing. The Land Use Board of Appeals (LUBA) has found that approval standards are not clear and objective if they impose subjective, value-laden analyses that are designed to balance or mitigate impacts of the development on: 1, the property to be developed or 2, the adjoining properties or community. The standards, conditions and procedures subject to needed housing may include, but are not limited to, provisions regulating density and height of development. In short, development standards may not have the effect, either in themselves or cumulatively, of discouraging needed housing through unreasonable cost or delay.

Critical to a project is the fact that ORS 197.304(4) does not require a developer to demonstrate that the development is 鈥渘eeded housing,鈥� as defined in ORS 197.303. Instead, needed housing requires local governments to apply only clear and objective standards to applications for all housing, and not just 鈥渘eeded鈥� housing. Many jurisdictions continue to have secondary non-clear-and-objective standards for residential development approval, which is allowable under state statutes so long as the jurisdiction also provides at least one clear and objective path.

Developers can rely on needed housing to avoid all manner of subjective standards that a decision maker or project opponent could use to derail approval. This includes ambiguous street improvement standards that fail to clarify timing, extent and scope; landscape preservation requirements that rely on the decision maker鈥檚 subjective analysis of compliance; and the classic catch-all provision that 鈥渢he development will not alter the character of the surrounding neighborhood.鈥� The clear and objective standard of needed housing allows a developer to sidestep these value-laden analyses that would otherwise put the project in jeopardy.

Also on the table for developers wielding needed housing is the prospect of receiving attorneys鈥� fees at LUBA in the event the local government denies a project in violation of the needed housing statutes. Although appeals delay the timeline for a project, a developer that successfully appeals a project denial to LUBA on the grounds of needed housing may be entitled to attorneys鈥� fees under ORS 197.835(10)(b). Needed housing can be utilized to demonstrate that the decision maker erroneously issued a denial because of a failure to apply clear and objective standards to the project.

Requiring local governments to apply clear and objective standards to residential developments provides developers with the degree of certainty necessary to plan successful projects. Needed housing statutes allow one to understand where the goalposts are and how to avoid all sorts of subjective standards that could be adopted by a decision maker or project opponent.

Amid low inventory and rapidly rising prices, housing starts are on the rise across the region. As Oregon moves past the impacts of the COVID-19 pandemic, more housing projects are expected to come online in response to chronic undersupply. Regardless of where in the region a residential development is planned, it is important to understand that needed housing statutes are at one鈥檚 disposal.

Keenan Ordon-Bakalian is an attorney in Jordan Ramis PC鈥檚 land use and development practice group. Contact him at 360-567-4843 or [email protected]. This column is intended to provide readers with general information and not legal advice. Consult professional counsel for help regarding specific situations.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91视频 guarantees the accuracy or completeness of any information published herein.