91视频

If you were planning to cook a dinner for you and a friend, would you buy enough food to serve eight solely because the table seats eight? Would you buy six tickets to a movie for you and your date simply because your car seats six? Of course not. You would be wasting money buying excess capacity that you鈥檙e not planning to use.

In Husk v. City of Bend (October 2022), the Oregon Land Use Board of Appeals (LUBA) opined that the city of Bend had erred in approving a tentative plan for a 26-lot single-family subdivision (and certain related waivers) by failing to consider that the site could theoretically be developed for 104 residential units under the 2019 鈥渕iddle housing statute鈥� (House Bill 2001).

In rendering its opinion, LUBA wrote that this maximum theoretical capacity consideration is 鈥渞equired鈥� by the middle housing statute. Given the potentially massive impact this decision by LUBA could have on horizontal development requirements and cities鈥� land use application review, let鈥檚 take a closer look at the ruling and consider some questions left in its wake.

But first consider the facts, which are fairly unremarkable. The developer sought and received approval from the city of Bend for a tentative 26-lot subdivision plan and a waiver of certain public improvements standards, allowing construction of only partial street improvements. The approval was appealed, and the dispute made its way to LUBA. The parties contesting the approval (the 鈥減etitioners鈥�) asserted that the Bend hearings officer who granted the approval made four errors in the process.

LUBA summarized the main thrust of the second asserted error (the subject of this article) as follows: Petitioners argue 鈥渢hat, because the middle housing statute requires the city to allow up to four dwellings on each newly created lot, (transportation review), water and sewer capacity review, and (fire code) compliance review are required to take into account the potential number of dwellings that could be developed on a lot within the new subdivision.鈥�

Essentially, petitioners argued that the hearings officer鈥檚 conclusion that a maximum of 26 dwellings would be developed on the lots (and approving the plan and waivers based on that conclusion) was erroneous and not supported by substantial record evidence because 104 units are theoretically allowed by the middle housing statute. Of course, this ignored that the actual plans approved by the city were designed and intended for development of only 26 units.

LUBA agreed with the petitioners鈥� general argument, but reframed it in the process. While the petitioners鈥� arguments (as summarized by LUBA) focused on how the Bend development code required such considerations because the middle housing statute allows denser development of right, the LUBA opinion stated instead that the middle housing statute requires that the city consider maximum 鈥渙f-right鈥� development.

LUBA remanded the case to Bend for reconsideration of the application, but while that process and any appeals of LUBA鈥檚 ruling run their course, two questions remain:

1. On what basis is LUBA asserting that the middle housing statute (rather than Bend鈥檚 development code) 鈥渞equires鈥� Bend to consider the maximum potential development of the lots? The LUBA opinion fails to cite a specific middle housing statute provision that articulates that requirement; the opinion only cites what the statute allows. Additionally, a read of the plain language of the middle housing statute reveals no maximum development requirement.
2. Is the logic applied by LUBA here generally applicable? Will any proposed development that falls short of the maximum legally permitted density be at risk of legal challenge, with the potential to be forced to develop infrastructure to support maximum legally permitted density, regardless of the plans?

The LUBA ruling as written does not clearly limit its logic only to the middle housing statute and/or residential development. As mentioned above, at its most basic level, the logic of this ruling rests on requiring the city to consider potential uses, rather than the uses proposed in the application. The middle housing statute was merely the source of such 鈥減otential鈥� in this case; any other statute or code provision could be the source of such potential in other situations.

The cost implications are obvious and concerning for builders across all areas of commercial and residential real estate development. In the Husk case, development of infrastructure to support 104 units at a 26-home development will almost certainly upend the prospective developer鈥檚 budget and project profitability. Accounting for excess traffic and utility impacts (beyond what is planned) is no less costly for other types of commercial development.

Finally, something equally concerning but perhaps less obvious is the possibility that angry neighbors and other anti-development forces may attempt to weaponize the logic in this case to stop other 鈥渓ess than maximum density鈥� developments in the future. Ironically, this may hinder future development and density, which is precisely the opposite of what the middle housing statute was intended to stimulate.

Jeffrey Kapp is a Jordan Ramis shareholder. He advises clients on matters that span the entire spectrum of complex commercial real estate and finance transactions. Contact him at 503-598-5537 or聽[email protected].

Jordan Ramis land use planner Chris Damgen contributed to this article.

This article 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.