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The walkout by Republican senators may have adverse implications on the work of the 2023 Oregon Legislature; however, limiting consideration on non-budget bills during the regular session may not be a total loss if the walkout keeps Section 2 of House Bill 3414 from moving forward. It鈥檚 among some improvident proposals not now moving forward that are better fit for the dustbin than the governor鈥檚 desk.

The legislature has several proposals that are worthy of debate and action, such as revisiting the state鈥檚 Climate-Friendly and Equitable Communities initiative to address climate change or implementing the Oregon Housing Needs Analysis (OHNA) to work out an acceptable means of calculating present housing numbers and assuring future housing needs are met over the next 20 years. Although there has been grousing on all sides, outreach by the Department of Land Conservation and Development and the effort to accommodate affected local government concerns, particularly fiscal impacts, has resulted in legislation that not only will combat houselessness and produce more housing, but also be more likely to enjoy a broad base of local support because of a proactive approach.

That is not the case with Section 2 of HB 3414. Most of the remainder of this bill is needed. Section 7, for example, sets forth a structure to review and ensure compliance of urban areas with the housing expectations contained in the OHNA through a Housing Accountability and Production Office (HAPO). As parties have understood that enforcement through meaningful consequences is critical to ensure success, the HAPO element has enjoyed widespread support.聽 However, Section 2, which has nothing to do with enforcement for housing production, is a completely different story. This section mandates that cities allow deviations (often referred to as variances, modifications, or adjustments) from adopted land use regulations when new dwelling units are proposed. For whatever reason, the legislative leadership is unwilling to separate HAPO from the by-right adjustment portion of the bill.

To understand the impact of Section 2, some background is necessary. Review of an application for housing, just as for any other type of development is very detailed. It may include an evaluation of the height, setbacks, landscaping, materials, utilities, street improvements, and design, along with whatever special site-specific overlay review that may apply. State law provides that when reviewing most applications for housing, local governments may apply only clear and objective standards, which means quantitative, objective determinations that are not susceptible to an exercise of discretion.

When a circumstance, typically outside of the applicant鈥檚 control, makes compliance with the clear and objective standards difficult or impractical, the accommodation is to seek a variance. Discretionary decision-making is allowed when considering a variance and ultimately comes down to a weighing of the burdens imposed and benefits realized by granting the variance. For example, if a lot were to become undersized because a city widened a street, an adjustment would allow for a home to be placed on that smaller lot, and if parking standards were not met for a multifamily dwelling, the adjustment could be used to relax that standard.

As a relief valve, variances or adjustments are necessary, but not overly common in Oregon. There is almost no statutory limitation on them and little evidence of their abuse. Exhibit 鈥淎鈥� for Section 2, according to the legislative sponsors, involves actions of the city of Troutdale in denying variances for window size and off-street parking requirements to an affordable housing project that resulted in substantial delay in bringing these units to fruition, as well as increased costs. However, Troutdale was also requested to vacate a right-of-way to accommodate the project 鈥� a discretionary act not affected by this legislation.

The argument put forth by the homebuilders and certain housing advocates is that mere compliance with the now clear and objective development and design standards is not enough and the variance process must also be revised to avoid onerous burdens on housing.聽They say the only way to deal with these barriers to housing production is to give applicants a by-right pass on compliance. There is little justification for such legislation by anecdote and without any buy-in from communities whose control over their urban design is entirely on the line. Indeed, the Metropolitan Mayors鈥� Consortium, the League of Oregon Cities, the Oregon chapter of the American Planning Association, many cities, and environmental and historic preservation organizations have raised the alarm.

There is another adverse detail of the bill 鈥� only the applicant for an adjustment would be able to appeal to the Land Use Board of Appeals and, for the first time in the history of land use review, the city鈥檚 decision need not be final, i.e. beyond local appeal, to pursue review. This would constrain the city鈥檚 ability to revisit a denial decision at a hearing on the merits of the proposal and expose it to an attorney fee recovery if the decision is reversed by LUBA. This provision not only transgresses the strong state policy of public participation, but also lacks effectiveness. If no appeal is available, the law provides extraordinary remedies to challenge that decision.

Moreover, there is no necessary constraint on the type of housing that would be realized by the variance or adjustment and there is no obligation to link the adjustment to realizing additional density, although there are efforts to make this connection. If all housing is good housing, then only those adjustments necessary to realize density demands should be rewarded. The one-sided approach proposed by those who would override the planning system for a single good brings additional disrepute to the state land use system and encourages the next interest group to use similar tactics. Legislation drafted by legislative advisors and lobbyists in backroom meetings that promotes one interest (housing) over all others and without widespread buy-in will not only lead to litigation, but also sow the seeds of distrust in the land use system, particularly when residents first learn of this concern when a windowless, metal multifamily structure with nothing other than front-facing garages goes up in their neighborhood.

The Legislature has enough to do without attempting to solve a 鈥減roblem鈥� relating to the use of the variance power, much less the ham-handed way it has approached the issue. Perhaps in this one way, the Republican walkout may have done some good.

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 author nor the 91视频 guarantees the accuracy or completeness of any information published herein.