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In August 2025, we wrote an article excoriating the Oregon Legislature for passing Senate Bill 974, which, among other things, made nearly all housing-related land use decisions subject to a more constrained public involvement procedure known as the 鈥渓imited land use decision.鈥� Now, a mere six months later, the governor鈥檚 office is going all-in with respect to killing public involvement.

Under the proposed House Bill 4037, cities are prohibited from providing any participatory protections when making so-called 鈥渃lear and objective decisions鈥� about housing. As Matthew Tschabold, the governor鈥檚 housing and homelessness initiative director, recently explained to the House Committee on Housing and Homeless, the rationale is to 鈥渁void the impression of discretion鈥� and 鈥渕isaligned expectations鈥� of what 鈥渃an come out of a hearing.鈥� Cutting people out of a process because they might misunderstand is an interesting response in a land use program supposedly built on Statewide Land Use Planning Goal 1: Citizen Involvement.

Before getting into this further, it is important to frame how far this stifling of public participation has come. The general rule, going back to the 1980s, had been that when a local government applies or alters land use law or regulation in a discretionary case, it must provide mailed notice within a certain radius of the subject property and hold at least one public hearing with a right to a local appeal. In the 1990s, the legislature created the 鈥渓imited land use鈥� decision for urban design review and land divisions, which provided notice to neighbors within 100 feet, a 14-day period for the submittal of written comments necessary to establish standing to continued participation and an appeal hearing, if requested. Both obligations establish the minimum level of required procedures; local governments were free to provide for greater public participation such as expanding the notice area to 1,000 feet.

Enter SB 974, again from last year, which prohibits local governments from providing notice beyond 100 feet from the site, prohibits any hearing in advance of an initial decision and provides a permissive right for a local government to hold a hearing on appeal. Importantly, these constricted review procedures were expanded to not only apply to residential design review and subdivisions as controlled in the years past but also control review of a zone change to allow for a denser development (assuming that it is already zoned for residential or mixed use), a planned unit development, or a variance.

As proposed, HB 4037 provides that a city decision applying only clear and objective standards may include notice to only those that share a 鈥渃ommon boundary with the subject property鈥� or those separated only by a public road. This adjacent neighbor notice authorization is permissive; a city could elect to provide no notice to any neighbors, affected owners or neighborhood entities. Further, a city 鈥渕ay not require any public hearings鈥� or 鈥渁ny local appeals.鈥� HB 4037 will not apply to a zone change, planned unit development or a variance, so long as they require the exercise of discretion; however, it will apply to design review, subdivision review, and natural resource protection and hazard reviews.

An appeal to the Land Use Board of Appeals is available only to applicants who want to challenge whether the standards are clear and objective in the first instance. Neighbors who might want to argue that other standards apply, such as those that are not 鈥渃lear and objective,鈥� will have no forum to participate at LUBA because they were shut out below and have no standing to seek that review.

This lopsided appeal right fails to acknowledge that, as things currently stand, determining when the clear and objective limitation controls is anything but clear. According to state law, clear and objective standards can be applied only to the 鈥渄evelopment of housing.鈥� Does 鈥渄evelopment of housing鈥� include only those regulations controlling the design and siting of a home or the other elements that may be necessary for the house to function 鈥� like grading necessary for a driveway or the extension of public facilities? Suppose no public facilities exist to serve a development 鈥� must a local approval be compelled nonetheless assuming that the standards for determining the scope and extent of service are discretionary? This question is pending review before the Oregon Supreme Court. Until this question is answered, shutting out neighbors who may be adversely affected, like steep slope standards put in place to protect them, seems ill-advised.

Like the governor鈥檚 office, some may say that mandating a ministerial procedure when reviewing clear and objective housing decisions makes sense when there is little opportunity to affect the outcome. Why hold a public hearing when the evaluation criteria contemplate nothing more than check-the-box quantifiable determinations without any discretion to make a different decision? The problem is that this assumes there is never any ambiguity in identifying the nature of the use, identifying which standards control or whether an application sets forth sufficient detail to establish compliance. Moreover, it assumes that the only benefit of public participation is the ability to change the outcome. Public participation in land use may not only be about affecting an outcome; it might also be about knowing what goes on in a community and voicing an objection.

In January, the city of Sherwood held a special election to consider a charter amendment providing that with respect to land use, local government procedures will control. This ballot measure passed by 93 percent 鈥� a resounding statement in favor of home rule. Yet, notwithstanding this clear statement that the public wants to have a say in how land use decisions are made within their community, this continued takeover by the state marches on. The ink is barely dry on SB 974. We have no idea whether SB 974 will reveal a greater number of housing units, yet we continue to slash away blindly at alleged 鈥渞ed tape鈥� when the only thing that is certain is that cutting public involvement will erode trust and transparency in the land use process.

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.