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It is rare that we dedicate more than one article to a singular topic and we have never before covered the same topic in back-to-back columns. That said, very rarely, if ever, is there the kind of high-stakes drama centered around land use on the Senate floor on the final day of the legislative session to justify a second column on the same topic.

As previously recounted, House Bill 3414 included two components intended to encourage housing production. The largely uncontroversial piece created a Housing Accountability and Production Office, giving it enforcement authority against local governments that fail to produce housing units. The controversial part of HB 3414 mandated that local governments grant variances or adjustments to regulations applying to housing. Last month, we traced the evolution of the variance mandate, elevating housing at all costs above other planning goals without a reasoned foundation. That background will not be retread here.

Suffice it to say that in early June, the variance provisions of HB 3414 had been the subject of six public hearings or work sessions, as well as the subject of nine amendments. Groups like the League of Oregon Cities, the American Planning Association’s Oregon chapter, and environmental and historic preservation-focused interest groups tried to place some bounds for these by-right waivers. They sought to set overall numeric caps on the degree, type and number of variances and requiring some showing that the variance was necessary to realize housing or make it affordable.

Although agreeing to some very limited exemptions for variances to hazardous conditions and natural resources, Gov. Tina Kotek’s office continued to push for broad variance authorizations that did not inquire much as to the purpose to be furthered by the variance, even where it was in pursuit of a large second home at the coast. The governor’s approach was buoyed not only by support from the homebuilder and property rights lobbies, but also from 1000 Friends of Oregon, which not only offered vocal support for the bill but also encouraged its members to offer the same.

During the final work session before the House Rules Committee, the testimony of the homebuilder advocates expanded. In addition to the by-right variance for most development and design standards, an amendment was introduced authorizing local governments to expand their urban growth boundaries (UGBs) to increase land supply. Capped at 75 residential acres for cities with a population of less than 25,000, 100 residential acres for cities with a greater population, and 600 acres for Metro, these expansions could occur without showing any need or compliance with any of the requisite strict UGB expansion rules.

With the constitutional deadline to adjourn sine die on June 26 looming, bills were passing the House and Senate at breakneck speed, following an agreement to end the Senate Republican walkout. On the morning of June 24, without any discussion, the House voted to approve HB 3414 with the UGB amendment by a vote of 34-21. According to Gov. Kotek, advocating for HB 3414 with the UGB provisions was one of the pieces of the agreement for Senate Republicans and Independents to return so the Legislature could complete its work.

Seeing this amendment as housing overtaking its previously central mission of protecting farmland, 1000 Friends of Oregon mobilized in opposition to the bill. Notwithstanding that opposition, the amended bill included several more detailed backstops for the variance provisions, but now including the UGB increase authorization, passed the House Rules Committee. The result was to split Senate Democrats between those who wanted to support the governor in giving greater free reign in the construction of housing notwithstanding local plans that the state had acknowledged, and those who supported a long-established planning system that encompasses the value of all 19 land use goals.

Although the Senate expected the session to end on Saturday, proceedings slowed to a crawl over HB 3414. Passage of a bill through the Senate requires 16 votes. On Sunday, June 26, the Senate convened with five Republicans absent, meaning that at least eight Democrats were necessary to support passage. After a number of impassioned pleas on both sides, the vote returned 15 in favor and 10 opposed, so the bill failed by one critical vote.

Now that the legislative frenzy is over, all attention must turn to what happens next. This bill failed because it was not drafted with broad support from those who are invested in the integrity of the planning system. Backroom meetings followed by piecemeal adjustments based largely on conjecture, speculation, and fear of the alternative is no way to set land use policy. Rather, the governor must convene two stakeholder groups charged with specifically identifying which particular regulations are keeping housing from being built.

The first group should be comprised of local land use planners from around the state who have experience working with local codes and with processing applications for housing whose perspectives will not be oriented to a predetermined outcome. These people are experienced in reviewing regulations and applying them. The second group should consist solely of affordable and workforce housing developers, particularly those with particular focus on those with expertise with internal conversion to capitalize on the HB 2984-authorization to covert commercial to by-right residential. If any market-rate housing developers are included at all, this group should include only those who have a track record of building within the UGB rather than lobbying to expand it. Recommendations from both groups could be forwarded to the Land Conservation and Development Commission to serve as the basis for carefully drafted and circumscribed legislation that will not sacrifice long-standing planning principles for the sake of the flavor of the month.

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 91ÊÓƵ guarantees the accuracy or completeness of any information published herein.