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In response to the housing supply crisis, Oregon is engaged in a grand experiment of overhauling its housing policies. Most local governments are still reeling from revising housing regulations to make them clear and objective and to allow for middle housing. Without asking to what degree these changes, in place for almost five years, are making a difference, we are now awash with innumerable and untested solutions.

The Legislature last week passed Senate Bill 1537, which preempts local governments and waives those recently implemented clear and objective design standards. In addition to waiving design standards upon request, SB 1537 provides $400 million of state-funded assistance for medium-income housing production, one-time expansions of urban growth boundaries and the creation of a new Housing Accountability and Production Office (HAPO) that will, according to Gov. Tina Kotek, 鈥減rovide the spark to jump-start the building of new housing that we need to see across the state.鈥�

There is a saying: you can鈥檛 fix something that you cannot measure. The question is what data supports this particular set of 鈥渟parks鈥� that will make the difference and not just create more bureaucracy standing in the way of producing actual housing? There is no data-backed study to suggest that 鈥渏ump-starting鈥� the total overall supply of market-rate housing will move the needle on the affordable housing supply or even the overall total production. Similarly, there is no data to support the notion that waiving regulations by 20 percent as recommended by the Housing Production Advisory Council or requiring local governments to grant up to 10 adjustments to residential design standards, as proposed in SB 1537, will be the golden ticket to increasing either the market-rate or affordable housing supply.

Certain activists would argue that now is the time to act boldly 鈥� we cannot require systemic perfection as an enemy of good. Driven by anecdotal examples identified by developers, activists propose a 鈥渢ry-anything鈥� posture which, at the very least, means we should be tracking what has worked and what has not.

The statewide need is at least 20,000 new homes per year to keep up with growth, and the governor鈥檚 Executive Order 23-04 sets a goal of producing 36,000 new homes per year. However, what the data lacks is knowing how many homes have been created with the clear and objective and middle housing regimes now in effect, and, more importantly, whether these new homes are getting built at affordability levels and in the places that they are needed.

Rather than following what is working and trying to replicate those results in areas that are struggling to produce, the Legislature is proposing to roll out an entirely new scheme, mandating uniform implementation at an enormous administrative price tag with little more than crossed fingers that it will work. Instead, we should look to the effectiveness of recent changes we have made to our housing program and consider whether effective solutions we may have abandoned could be reinvigorated as a lower overall cost.

In 1981, Oregon adopted a series of laws requiring that local governments submit their comprehensive plan and land use regulations to the Department of Land Conservation and Development (DLCD) for periodic review to confirm that they were still in compliance with the land use laws, goals and rules. In 2007, due to funding constraints, the Legislature disemboweled the periodic review program now requiring nothing more than initial review of regulations when they are adopted. Without periodic review, there is no system to evaluate the extent to which a local government is realizing the objectives set forth in its plan and regulations. The tremendous benefit of periodic review is that it is customized to address challenges and enforcement on an individualized local basis rather than forcing all local governments to accept a one-size-fits-all statewide government mandate.

Without regard to this periodic review scheme already in place, HB 2003, adopted in 2023, requires cities to conduct a housing capacity analysis to determine if they have enough land to meet their projected housing needs as well as policies directed at realizing housing production. Although this bears a striking resemblance to the buildable land needs analysis that has been part of the local government planning obligations under Goal 10 for decades, the required analysis is expanded to focus on actual housing production. Cities must evaluate and report their progress on housing production based on a schedule and make changes if housing needs are not being met. These are exactly the kinds of objectives that periodic review was created to handle. One can鈥檛 help but wonder if reestablishing the Land Conservation and Development Commission鈥檚 periodic review program, perhaps with some rulemaking directed particularly to housing, would not have achieved the same result. Moreover, periodic review would include other planning objectives relating to housing, such as public facilities and services, transportation, and plan consistency and coordination.

This same criticism should be leveled against the HAPO, a major component of SB 1537.聽 HAPO is charged with providing technical assistance to local governments in implementing state housing policy, establishing best practices and model codes for housing policy, and mediating disputes between local governments and applicants seeking to build housing. With all due respect, these are tasks already entirely delegated to the DLCD and to the Land Use Board of Appeals (LUBA). In carrying out Goal 10, DLCD has a long history of implementing housing policy, most recently with its middle housing rules. DLCD also has an enforcement process that can preempt local regulations, if necessary. LUBA has been adjudicating disputes between developers and local governments for over 40 years.

Why are we constructing this additional layer of government review to handle something that is already provided? Why are we going to expend precious resources on creating and staffing this new office when that money could be directed immediately to rental assistance or the construction of affordable housing units?

Before we commit precious state funds to these 鈥渘ew鈥� untested solutions, it might be worth considering whether we are not replacing existing regulatory structures that could be adjusted to focus on housing production at a lower cost rather than creating something new and untested out of whole cloth. After all, every dollar that is spent to create new government processes and implement them at the local level, is a dollar that is not available to the actual provision of affordable housing.

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.