91视频

All hail the 鈥渓imited land use decision.鈥� This seems to be a principle guiding legislative housing policy. If we can just eliminate those pesky procedures, such as public hearings and notice, housing will be built with greater efficiency. For this reason, it is worth taking a closer look at the limited land use decision procedure because it may not be the panacea that its popularity might suggest.

First created in the early 1990s, the 鈥渓imited land use decision鈥� offered a middle-ground procedure between the full-scale review by a planning commission followed by the local elected body and the ministerial, unappealable building permit review. As set forth in state law, limited land use review begins with mailed notice to neighbors within 100 feet, as opposed to 250 or 500 feet for a land use decision, providing a 14-day period for the submittal of written comments. Once the comments are received, the initial written decision is made by the planning staff. The local government can decide whether to allow a public hearing on an appeal of the staff decision and if so, it may be subject to an open or a closed record on review.

Although fairly prescriptive, the limited land use statute also provides that: 鈥渢he local government shall follow the applicable procedures contained within its acknowledged comprehensive plan and land use regulations and other applicable legal requirements.鈥� Most local governments took this instruction to mean that the statute set forth the minimum review procedures for limited land use decisions but would permit local deviation as dictated by local code; most often referenced by the local shorthand as a Type II procedure.

Some local governments adopted the statutory procedures wholesale, but others chose to deviate. For example, cities might provide for a wider notice distribution or small cities that are short of staff might provide for an initial decision by the planning commission followed by council review.

When initially established, state law classified 鈥渓imited land use decisions鈥� including two development proposal types: preliminary review of a land division (partitions or subdivision) and reviews directed to the physical characteristics of a development on a site (site plan / design review). Lot line adjustments, replats and nonconforming use determinations, and SB 1537 mandatory adjustments were added to the list of 鈥渓imited land use decisions鈥� during the 2024 session as part of SB 1537.

More importantly, SB 1537 mandates that 鈥渁 city shall apply the (limited land use) procedures (in state law), and only those procedures,鈥� except for where decisions do not require interpretation or policy judgement, a ministerial procedure can be provided. Interestingly, this amendment did not delete the provision quoted above instructing the application of local government procedures, creating a direct conflict. Be that as it may, the clear intent of this amendment is that design review / site plan decisions may no longer be subject to greater notice; they demand an initial staff decision with a single local hearing review.

Keep in mind that limited land use decisions (subdivisions and design review) are not limited solely to housing where clear and objective criteria constrain the review. Design review of commercial or industrial buildings, which is often discretionary, also is now subject to a review that excludes local design review commission input.

During the 2025 session, with the adoption of SB 974, the Legislature jumped all-in by mandating that nearly all land use decisions relating to housing be subject to limited land use procedures, although they are not specified as such. This includes a wide range of discretionary reviews, including a zone change to allow for greater density, a planned unit development or any type of a variance.

Setting aside how these more limited procedures will cut short citizen involvement in what are often highly discretionary evaluations, there are some other consequences that are likely to frustrate expectations for both sides. Without an initial public hearing, preceded by a staff report, there is no opportunity for any initial understanding of how the city will interpret discretionary review standards. Everyone will simply be 鈥渟hocked鈥� by the city staff decision that will be perceived to be produced from a black box inside the planning office.

As noted above, these decisions will no longer receive input from a planning commission or a design review commission with people appointed because of their expertise and qualifications in development and design. These decisions will place tremendous pressure on local planning staff, not just regarding the mechanics of writing the decision, but in placing difficult, often-controversial, policy-making interpretative burden on them.

Finally, it is important to point out that the limited land use procedures are quite clear that the right to rebuttal obligations that otherwise apply to land use decisions do not apply in a limited land use review. Rather, when the record closes on the 14th day of the comment period nothing specifies reopening for rebuttal. When a neighbor identifies a shortcoming in an application or submits countervailing expert evidence on the last day of the comment period, the applicant will have no opportunity to amend the project or respond with additional facts to establish compliance. This could be particularly challenging when the local government review on appeal is also on record. This closed record, particularly in the case of discretionary review, is likely to create controversy, frustration and further obfuscate housing production efforts.

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.