91视频

A 19th century judge, Gideon Tucker, once wrote in a decision that 鈥淣o man鈥檚 life, liberty or property are safe while the Legislature聽is in session.鈥� While the recent session of the Oregon Legislature does not prove that assertion, its actions do reveal some surprising responses to land use issues facing the state. The following is our attempt to call out those changes to land use law during the 2021 session that are of greatest interest to our readers. There are three principal areas in which the Legislature addressed land use: housing, wildfire responses and intervention in local affairs.

Regarding housing, HB 2008, among other things, limits local government restrictions on affordable housing provided by a religious organization in urban areas to clear and objective criteria or to criteria relating to specific concerns over health, safety, habitability and infrastructure. The legislation also requires those governments to approve affordable housing developments on land contiguous to residentially zoned land, except for industrial lands, and requires those parcels on other contiguous lands to be treated as residential.

Similarly, SB 8 requires affordable housing to be approved in commercial and industrial zones under certain conditions. This legislation is concerning because both bills overturn the plan inventories and policies, infrastructure arrangements and land use expectations of a community to favor a particular use. The result can hardly be called planning.

On a more positive note, SB 458 revises land division laws to provide for the constellation of new residential uses that are likely to emerge from urban area implementation of some 2019 legislation that requires those areas to provide for duplexes, triplexes, fourplexes, cottage clusters and townhouses. This legislation allows for these lands, and structures, to be sold or transferred separately, so that a condominium process need not be used. We should expect a great deal more of these land divisions to result.

There are two bills that highlight the many efforts of the Legislature to help devastated communities recover from the 2020 wildfires. HB 2289 allows landowners affected by the wildfires to use a 鈥渟treamlined process鈥� in lieu of existing local government land development processes to replace structures and uses affected by the wildfires. Without attempting to provide all the details of this legislation, suffice it to say that a former dwelling that is shown by the evidence to have had four walls and a roof, and electrical wiring, plumbing and heating systems, and previously granted approval may be 鈥渁ltered, restored or replaced鈥� if it doesn鈥檛 exceed the original footprint by 10 percent, is 鈥渁dequately served by water, sanitation and roads,鈥� stays generally within the original building footprint and meets certain building code standards.

Similarly, nonresidential uses are given a more relaxed process to facilitate their establishment or continuance. Any local decision on these issues is not a 鈥渓and use decision鈥� and challenges must be undertaken under a difficult and expensive process, to which local decisions are given great deference. Finally, the Department of Environmental Quality is instructed to use a more relaxed process for issuing subsurface sewage permits.

The other piece of wildfire legislation is the omnibus SB 762 that, among other things, requires consumer-owned and investor-owned electrical utilities to undertake a fire protection planning process and requires the Oregon Department of Forestry to establish a statewide map of fire risks with five categories, to use that map as part of a fire protection strategy, and present that map to the next regular session of the Legislature. The legislation requires the state fire marshal to establish 鈥渄efensible space鈥� standards to reduce fire risks, which may be enforced by the fire marshal or other fire agencies. The Land Conservation and Development Commission is charged with scoping updates to the state planning program and local plans and land use regulations that are necessary to incorporate the wildfire risk maps and to present its conclusions to the 2023 Legislature.

The Legislature also commanded the state鈥檚 building codes be revised to respond to fire risks. Other state agencies, such as the Department of Environmental Quality and emergency management agencies, play a role in the reduction of risk as well, but much of the work is left to the Department of Forestry and the newly-created Oregon Conservation Corps to be proactive in risk reduction. A state wildfire programs director position is established and special attention is given to the wildland-urban interface (WUI), where the danger of fire is especially acute, and has been the subject of much discussion in land use circles since the 2020 fires.

As for local intervention, the Legislature just couldn鈥檛 help itself. SB 16 set aside 200 acres of exclusive farm use land in Eastern Oregon for residential use (most likely for second homes for Idahoans) notwithstanding the state鈥檚 farmland protection laws. HB 3318 all but guaranteed an expansion of the Bend urban growth boundary so long as a small part was used for affordable housing, and HB 2160 gave license to Pendleton to engage in a pilot program to expand its urban growth boundary with special provisions to encourage affordable housing.

Some of these bills made important decisions on matters of state policy, such as the response to past wildfires and avoidance of similar catastrophes in the future. Whether we agree with these decisions is less important than the fact that they had to be made and indeed were made.

The same cannot be said for the thoughtless haste resulting in doing something to meet the state鈥檚 housing needs. This headlong rush to appear to do something immediately, instead of allowing better tools to accomplish the job, such as through requiring clear and objective standards for housing decisions, increases in housing varieties and densities, and seeing the current regional housing needs analysis project through, evinces both a misunderstanding and betrayal of planning for the instant gratification of appearing to do something meaningful. And the occasional one-offs of legislative interventions when requested by certain interests belies the notion that the state provides general policy direction and leaves planning and land use regulation to local governments.

Oregon is still the national model for planning and land use regulation; however, like T.S. Eliot鈥檚 鈥淗ippopotamus鈥� it sometimes can find itself 鈥渨rapt in the old miasmal mist鈥� of political interest trade-offs.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at [email protected].

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or [email protected].

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