For the last seven years, Oregon has been roiled to find solutions to secure additional housing. The price of new homes and rentals is steadily rising; renters have complained that the lack of adequate alternatives allows landlords to force them to pay higher rents and enter into agreements that heavily favor the landlord. Moreover, the effects of homelessness are manifest on the streets of many cities and suggest a breakdown in the social order. Housing has become a major, if not the major, political and social issue in the state for the last decade.

From the time she was House Speaker, Gov. Tina Kotek has been a driving force in responding to the so-called “housing crisis” in the form of legislation and state funding. Since 2019, Kotek has proposed, and the Oregon legislature has adopted, multiple solutions to relieve the situation of renters, to provide shelter for homeless persons and to increase the number of housing units, especially to low and moderate income Oregonians.

Let us consider each of these three areas.

Renters have seen benefits as the Legislature imposed statewide rent control, restricted the use of evictions, enacted tenant rights regarding security deposits, fees and the habitability of premises. These changes improve the situation of renters, despite concerns that they discourage construction of new rental units. The number of building permits for new multifamily units in Oregon, which range from basic to luxury housing, was about 5,000 in 2024 and 2025. These numbers are far short of the annual 36,000 new housing units the state declares as necessary. That deficit will not be filled by other forms of housing such as new single-family dwellings.

There are many reasons for these relatively low numbers, but they do show that investors are not lining up to build more units in Oregon.

Regarding homelessness, Gov. Kotek declared a housing emergency in 2023 and saw through legislation that mandated siting of homeless shelters despite local zoning restrictions and provided funding for their operation. Nevertheless, a recent federal report found that, while , approximately 27,200 people experienced homelessness in Oregon in January 2025, a 19 percent increase from the previous year and the second largest increase for any U.S. state.

Federal, state, and local funding for homelessness are likely to decrease as the numbers of homeless persons increase. This is discouraging news.

As to increasing the number of available housing units, it is here that the Oregon Legislature has been most active. Since 2019 Oregon requires that accessory dwelling units and duplexes be allowed in most urban areas and in larger cities that a suite of housing alternatives that increase density be allowed in single-family zones. It has established a statewide housing apparatus that keeps track of existing and proposed housing and allocates housing obligations on local governments to allow their fair share of the regional housing need.

These significant land use law changes were supplemented over the years by other measures designed to preempt local regulations as a means to encourage residential uses , especially those relating to low income or affordable housing. Local governments were admonished to use only “clear and objective standards” to regulate housing, to decide within certain time limits, that larger communities would provide a Housing Production Strategy to assure they were on target to meet their fair share of housing (with the state both assisting them and providing disincentives for failing to do so), allowing housing on certain commercial, public or religious land notwithstanding local zoning, requiring the use of up to 10 “adjustments” from various local zoning requirements in housing cases, encouraging use of Inclusionary Zoning” to give applicants who accommodate affordable housing increased density or other benefits, prohibiting or nullifying private covenants that would restrict certain housing, allowing “one-time” changes to urban growth boundaries and limit or eliminate local hearings or appeals in certain housing development cases. This partial list demonstrates legislative commitment to providing for housing development, a commitment that is, in terms of activity, far more detailed and extensive than that involved with landlord-tenant relations or providing shelters for the homeless.

The question is whether all this activity will produce results. Many of the land use measures are derived from changing state-local land use relationships in California, which does not have a statewide land use program comparable to Oregon’s half-century of experience with the Land Conservation and Development Commission, which has a stronger deference to local controls, and which is even more committed to overcome planning and zoning restrictions to accommodate housing. By waiting so long to do so, California’s efforts are meeting with local resistance and time consuming and expensive litigation which Oregon has largely avoided.

But what has all this activity meant for housing? While it is too early to come to a definitive conclusion, the numbers are revealing. In the last three years, Oregon has not met half of the 36,000 residential dwelling permits it projects as needed. Over half of the residential building permits issued between 2014 and 2023 were for single family housing. The state permitted 14,621 units in 2024, down 33 percent from the 2021 peak of 21,916. Multifamily permits (5-plus units) dropped by over 50 percent from 2022 to 2024. Lower birthrates, slower population increases and higher household formations as younger people strike out on their own puts a strain on housing and households get smaller (they now average 1.9). With all this housing need, the market should be building more housing. Why is this not happening?

The reasons are many, starting with interest rates as public debt and the stock market attract capital, the increased cost of materials and labor, especially after the Iran war, the lack of construction labor availability following immigration sweeps, low income levels that do not compete with other similarly-sized urban areas across the county and a state public financing system that leaves local government infrastructure dependent on bonding (requiring a public vote to raise property taxes) or systems development charges (which raise the cost of housing).

What do not appear to be reasons are litigation (LUBA has almost no urban housing cases) or local delays (there are almost no cases in which local governments have violated state laws against delays). This suggests that what is not needed is more state preemption of local land use regulations. Cities are barely keeping up as it is.

What is needed is money to deal with heavy systems development charges and subsidies to low income and affordable housing. King Canute could not command the tides and the State of Oregon cannot produce more housing by mere fiat.

Edward J. Sullivan is a retired practitioner in land use and municipal law with more than 50 years of experience in these fields. Contact him at esulliva@gmail.com.

Carrie Richter is an attorney specializing in land use and municipal law at the law firm Bateman Seidel. Contact her at 503-972-9903 or at crichter@batemanseidel.com.

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��Ƶ guarantees the accuracy or completeness of any information published herein.

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Land use planning demands a balance among conflicting values. Nowhere is that conflict starker than in Portland’s Columbia Corridor, between the Columbia River and the Columbia Slough. It’s home to wetlands, streams, floodplains and wildlife corridors but surrounded by long-standing development of industrial lands including an airport, industrial parks with heavy and light manufacturing, and commercial and residential uses. Importantly, most of the natural resources are not located in open space zones; much of that land has already been developed and the remaining undeveloped land serves a critical role in the management of stormwater and floodwater.

Portland previously applied environmental overlay zones within this area between 1989 and 2011. Since that time, the city has inventoried wetlands, identified streams that were previously missed and applied new technology to enable more accurate mapping.

Over the past year, the city has compiled this information and proposed revisions to the environmental zones (ezones) applied within this area, providing greater protection for natural resources. This past month, these efforts culminated with the Planning Commission’s recommended adoption of plan and zoning code amendments providing greater protection to natural resources. They’re known as the Columbia Corridor and Industrial Lands (CCIL) Environmental Overlay Zone Project amendments.

These conservation planning efforts had to account for the availability of industrial land demands imposed by Statewide Planning Goal 9. To do this, the city concurrently updated its Economic Opportunities Analysis, which forecasts needs for economic growth as necessary to ensure that sufficient land is available to meet industrial and employment needs across all sectors. Overall, the CCIL amendments would reduce the amount of land available for industrial and employment opportunities through the 2045 planning horizon. The potential effect of this update was based on refinements to the city’s Buildable Lands Inventory, which is a part of Goal 9 compliance.

Balancing the appropriate buffers for natural resources while accounting for the needs of industrial uses is a tricky task. First, this large area was divided into “resource sites” with mapping that ranked vegetation near wetlands and bodies of water, as well as riparian areas and wildlife areas.

Second, in addition to considering public testimony, while the record was open, city staff invited concerned property owners to request a site visit from city staff to conduct an on-the-ground assessment to confirm natural resources. In fact, during the Planning Commission deliberations, city staff visited 35 different properties and amended their recommendations for 29 of them.

For example, the proposed ezones on portions of certain single-family residential sites were changed from the most restrictive environmental protection zone to the more permissive conservation zone. Staff have completed a total of 56 site visits over the multiyear project. This level of detailed investigation is rarely seen in large-scale, long-range planning, and this example suggests that these types of efforts are feasible where there is staffing, expertise and resources to support the effort.

Simplifying the regulatory landscape is proposed via the permanent repeal of a number of natural resource protection plans, which imposed different rules for natural resource protection and in some cases sowed confusion. Between 1989 and 2011, Portland adopted eight area-specific natural resource conservation and protection plans for the areas evaluated through CCIL. Under these recommended amendments, regulation is accomplished by applying ezones in a more consistent manner across the geography.

In most cases, the environmental protection (p) zone protects significant resources including streams, sloughs and wetlands by requiring new development to be at least 50 feet from the edge of resources. The environmental conservation (c) zone applies to other high and medium ranking riparian resources outside of the 50-foot environmental protection zone.

The amount designated in the Planning Commission’s recommended draft was slightly less than the high scenario (among high, medium and low scenarios) recommended by city staff. In total, the existing ezone coverage in this area encumbered 27.3 percent of the total land. Under the draft approved by the Planning Commission, this total area was increased to 31.6 percent. Considering just industrial lands, the proposed changes increase ezone coverage from 14.9 percent to 19.6 percent. Critically, however, these changes would not impact pre-existing development, which can continue to operate and be replaced if destroyed. However, this will come as little solace for owners of vacant or underdeveloped industrial lands who may see a significant shift in their development options.

Although the city received testimony expressing strong support for natural resource protections, those in opposition were concerned about impacts on existing industrial development and river-dependent activities. Changes to the environmental overlays applied to an existing industrial building can impair financing, insurance availability, marketability, reinvestment decisions, and the ability to repair or rebuild following a casualty, even in cases when the regulations would allow such rebuilding.

These amendments must still be approved by the City Council, which is tentatively scheduled to consider them later this year. As Portland is experiencing hotter and drier summers, as well as warmer and wetter winters, natural resource protections become invaluable in providing flood areas, managing stormwater, and keeping these resources cool through the preservation of vegetation around waterways and on wetlands, helping to improve air quality and protect wildlife and fish. Where this effort includes site-specific mapping and data-driven inventory work, planners can provide detailed evaluation of the regulatory impacts on industrial lands at a level of detail rarely encountered in long-range planning efforts.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at esulliva@gmail.com.

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or crichter@batemanseidel.com.

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��Ƶ guarantees the accuracy or completeness of any information published herein.

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A recent decision from the California Court of Appeal (Fourth Appellate District) provides an opportunity to compare housing policy in our neighboring state. Kennedy Commission v. Superior Court of San Diego County, decided last December, arose out of the enforcement efforts to force the city of Huntington Beach to come into compliance with state housing laws.

California requires every local government to amend its plan to accommodate its regional allocation of housing needs for each housing category. Those needs are determined through state housing agency projections and the regional council of government (COG) for the area that allocates the “locality’s share of the regional housing need.” The local plan must then identify adequate sites for housing to meet that allocation, The result must then be reviewed by the state housing agency and, if it complies with state housing laws, the local government must proceed with adoption.

In Kennedy Commission, the state concurred that the city’s housing element was sufficient, but the city then failed to take the final step of adoption. When the California Department of Housing and Community Development sent a notice of violation in 2023, the city responded by filing a federal lawsuit challenging the constitutionality of the housing law. The city contended that the affordable housing share need allocation was inflated and that additional affordable housing units would harm the environment, in violation of the California Environmental Quality Act (CEQA), and the city’s suburban character. The Kennedy Commission, a housing advocacy entity, then sued to enforce the law, and California’s attorney general filed similar separate litigation.

The state sought an order mandating that the city adopt compliant housing measures. The city responded by filing cross-petitions arguing that the language of the state law authorizing the court to mandate adoption of those measures did not apply to charter cities both under state law and that the legislation violated the home rule provisions of the California Constitution. The court rejected both arguments. First, it pointed out that the language of state law mandated the adoption of plans that included the housing measures and for enforcement applied to charter and non-charter cities alike.

Regarding the home rule conflict, the court focused on whether the state law was reasonably related to the resolution of a statewide concern and narrowly tailored to avoid unnecessary interference. It found the obligation to provide sufficient lands for housing and the ability of the courts to accelerate and ensure compliance was reasonably related to the state’s interest in promoting the supply and affordability of housing statewide and was not an unduly oppressive burden.

In support of its decision, the court emphasized state legislative declarations of the housing crisis and the urgency of providing a remedy and the use of the state’s Regional Housing Needs Analysis to assess housing supply and needs and the allocation of future housing among local governments. On remand, the trial court found a violation of California’s housing statutes and ordered the city to comply with them. Moreover, the California and U.S. supreme courts subsequently denied review. Compliance is now imminent.

The California system is similar to the structure of housing policy in Oregon but with some key differences. Both states have a profound housing crisis, especially with respect to affordable housing. Both states try to measure existing housing, future needs, and the role of planning and zoning in assessing and meeting those needs. Both states require local government planning and land use regulations to carry out those plans and assert state powers to assure that state policies will be carried out locally. However, neither state requires housing to be built — only provided for in local plans and regulations.

In the absence of a state agency for planning like Oregon’s Land Conservation and Development Commission (LCDC), California has developed the Regional Housing Needs Analysis as its process for increasing housing units based on state-provided housing projections. Local governments are ultimately required to amend their plans and land use regulations to accommodate the assigned allocations. The Kennedy Commission litigation shows a more recent commitment to put teeth into what may historically have been treated as a hortatory paper exercise.

LCDC, on the other hand, has enforcement authority and, with its new Housing Accountability and Production Office, may suspend local zoning regulations and instead require that local zoning decisions comply with a state model code. Another distinction is that the only forum for resolving housing disputes such as these in California is the court system. This might explain why the Huntington Beach odyssey took over four years to resolve. Oregon has its Land Use Board of Appeals that reviews plans for conformity with state law, allowing review to occur in a matter of months.

In both states the pathway toward increasing housing opportunities since 2019 has not been without controversy or difficulty. Frequent disagreements occur over the wisdom or effectiveness of frequently changing state housing policies pre-empting local government regulatory authority in the hopes of expediting and reducing the cost of housing. From middle housing mandates, mandatory adjustments, limiting design options or public involvement in land use proceedings, it is too soon to say whether, and to what extent, they will work. What is clear is that having an enforcement authority that is efficient, predicable and provides for implementation of state housing policy in the meantime are all important tools.

It is indeed unfortunate that the funds put into four years of legal wrangling could have been better spent on construction of affordable housing. The Kennedy Commission decision suggests that cities will have difficulty overcoming statewide housing policies and that if they disagree with those policies, they should consider other ways to express that disagreement.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at esulliva@gmail.com.

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or crichter@batemanseidel.com.

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��Ƶ guarantees the accuracy or completeness of any information published herein.

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As reliance on artificial intelligence (AI) seeps into everyday life, it was bound to seep into the world of land use. One of us got a cold call from a prospective client indicating that ChatGPT had instructed the person to not just hire an attorney, but to reach out to this attorney in particular, and provided the author’s personal number rather than office number. By searching for and combining lengthy and complicated land use records – local zoning regulations, applications, testimony, and staff reports in numerous cases, AI tools are now used by the public and attorneys alike as a convenience to create land use applications and supportive testimony submitted at the local level, as well as briefs submitted to the Land Use Board of Appeals (LUBA) and the appellate courts. This “convenience,” although perhaps providing greater access, is causing clients to question attorney fee estimates, as well as the use of planners and attorneys at all, assuming that AI is equally up to the task. LUBA and the courts have now responded, evaluating these AI-generated efforts. The results are sobering.

What is well-known is that generative AI models hallucinate. Not only do they fabricate cases that do not exist, but they also provide false case quotations and inaccurate descriptions of those cases and yet give all appearances that they are supportive of a party’s arguments. As the Oregon Court of Appeals recently observed, “generative artificial intelligence is not perceiving nonexistent law as the result of a disorder. Rather it is generating nonexistent law in accordance with its design.” Large-language platforms, such as ChatGPT, Copilot and Claude, are trained by observing how phases or words appear together, and to use statistical modeling techniques or extrapolate from its input, so as to support whatever the user desires or its AI device is programmed to desire. However, when AI generates a case citation or holding, it is less prone to test its existence. Because the words sound so right, it is easy to believe that its proposition is, in fact, true.

Now the courts are weighing in. In Ringo v. Colquhoun Design Studio, the Oregon Court of Appeals identified signs of AI hallucinations in an appellate brief and imposed a $2,000 sanction against counsel presenting the brief. The court highlighted an attorney’s professional duty not to perpetuate falsehoods where the result undermines the rule of law. Notwithstanding the sanction, the court allowed the attorney leave to file a new brief.

In Doiban v. Oregon Liquor and Cannabis Commission, when questioned in oral argument about the use of AI in a brief, petitioner’s counsel acknowledged that the brief fell short, citing health conditions leading to reliance on staff work that was insufficiently investigated in advance of filing. Petitioner’s counsel explained that AI was used to create a brief outline, and traditional legal databases – Lexis and Westlaw – were consulted for case support. Finding nothing helpful, the effort turned to general search engines, which seemed to generate what appeared to be “legitimate legal analysis.” According to counsel, when asking Google whether the fabricated cases are real, the search engine will respond that “the fabricated cases are in fact real.” Rather than rely on the fee schedule used in Ringo that would reveal an assessment of $16,500, counsel’s acknowledgment of the mistake and corrective action to avoid these mistakes in the future, the sanction was reduced to $10,000. Again, a lawyer’s duty to present a case with candor and truthfulness were the bedrock of the court’s ruling. Finding that striking the brief in its entirety would harm the client more than their counsel, the court accepted a redacted brief removing all the nonexistent case law coupled with an affirmative statement that the brief did not use generative AI and that all sources of law have been verified.

It is not just the courts; LUBA has now weighed in on the use of AI in briefing. In Bartholomew v. Clackamas County, a self-represented petitioner submitted a brief including case citations that did not exist or relied on authorities that did not stand for the propositions stated. In response to challenge, petitioner explained that the reliance on these sources was pursued in good faith, urging LUBA to overlook the mistakes and consider the arguments without the nonexistent citations and incorrect authorities.

The petitioner noted lack of access to legal databases and a desire not to be “shut out of the process.” This argument is interesting because LUBA, unlike the courts, was designed and intended to be open to public participation, including by nonlawyers. Highlighting the additional time necessary for LUBA to decipher these hallucinations as well as the need for “fair and predictable process,” LUBA concluded that self-represented parties must be held to the same “reasonable diligence to verify” sources that applies to attorneys. The LUBA appeal process’ integrity and efficiency demand as much.

Unlike court accommodations to restore non-hallucinatory briefing, LUBA struck petitioner’s brief outright and did not consider it, citing statutory short decision-making deadlines. Unlike Oregon courts, LUBA does not have authority to sanction parties for misrepresenting authorities in a brief, although it will be interesting to see if other parties to this case seek recovery of their fees expended in defense, something that the law does allow.

It is likely that the courts and LUBA will adopt rules prohibiting the use of AI or, more likely, demanding an affirmative statement that all sources have been validated. Local land use planning departments may well do the same. Attorneys and land use planners must help bridge the education gap by explaining the significant limitations of AI to their clients. It may well be that reliance on AI may become as common as turning to the dictionary for reference, but participants must acknowledge full responsibility for the products they produce. Land use regulations and laws, and the cases applying them, is a highly developed, sophisticated area. Although ChatGPT can spit out a LUBA brief just as easily as it creates your next vacation itinerary, all participants, including attorneys, must understand the limitations.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at esulliva@gmail.com.

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or crichter@batemanseidel.com.

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��Ƶ guarantees the accuracy or completeness of any information published herein.

The post Warnings about using artificial intelligence in land use | Opinion appeared first on Daily Journal of Commerce.

What would you say if someone told you that “Oregon needs an effective program to increase the supply of affordable housing choices, measurably reduce racial and economic segregation, avoid the air pollution that is changing the climate, save taxpayers hundreds of millions of dollars by avoiding wasteful spending, conserve precious water and wildlife, save the magnificent Oregon Coast’s public beaches, and protect the incredibly beautiful and productive ranch and farmlands that provide rural jobs as well as food and fiber.”

You might say, “Oregon already has an incredible land conservation and development program, and no state has anything close to it.”

It has taken 50 years of constant updates, refinement, and political blood, sweat and tears from governors from both parties as well as thousands of average citizens across the state to build this program. It is why Oregon does not look like New Jersey or California. But that program has slowly been eroded by incremental Oregon legislative action.

The erosion began with efforts of those wishing to allow placement of uses unrelated to farm or forest purposes on cheaper resource lands to bypass rules for the preservation of those lands by adding them to a list of permitted non-resource uses. That list had grown from fewer than 10 (including rural churches and schools) in 1973 to more than 50 today, including such “necessary” uses as water bottling plants, certain aerial fireworks display businesses, “equine and equine-affiliated therapeutic and counseling activities,” and propagation of insect species.

Some urban legislators hold that, while the overall system is a good one, everything would be better if we just made a few changes. They want to allow rural wineries, breweries and cider houses to become rural restaurants and add stores to sell products unrelated to those raised or grown on the land to be sold there. And they argue that if Hillsboro were to just get 1,700 more acres of farmland inside the regional urban growth boundary (UGB), then economic development would fall from the skies, and everyone would be happy and prosperous. Some cities say they can’t wait to go through a detailed process to justify UGB additions.

One can hardly blame Hillsboro. Since the state Legislature intervened in 2011 following the defeat of Hillsboro’s efforts to expand the regional UGB, the instant result of that legislation created the precedent of inviting the Legislature to become the state planning commission. Any property owner desiring to overcome the inconvenience of waiting and the uncertainty of an outcome was welcome to use their lobbyist and local legislators. Efforts to overcome existing UGB amendment processes were accomplished recently by Dallas, Bend and Roseburg. You don’t have to justify anything — all you need is enough votes. That same combination of money, pork barrel influence and cleverness was what led to the passage of Senate Bill 100 in 1973.

Our program was sold to Oregonians based on public participation. But now the Legislature seeks to exclude the public from notice or participation in local land use decisions, or to make further review of those decisions either difficult or impossible. The wholesale elimination of design or tree regulations, which avoids Soviet-style monotony in housing, or waving off the needs of cities in accommodating transportation or public facility concerns over the Legislature’s latest favorite are results the state will live to regret. Local zoning regulations are indeed part of our housing deficit; however, simply removing them will not affect materials and construction costs or bring interest rates down and is unlikely to move the housing needle significantly.

The Oregon Legislature, led by Democrats, is pulling our enviable land use program apart piece by piece. Licking their chops are the land speculators, right-wing extremists, rich reactionaries who want Oregon to be their second vacation home, and the real estate agents and developers (not all of them, fortunately) who will make fortunes by dismantling what others took decades to build.

The phony sophisticates who claim the law is outdated are either ignorant or lying about the hundreds and hundreds (yes hundreds) of pages of amendments to our land conservation and development program that have been adopted, changes made every year, to keep it fresh and relevant, including amendments relevant to housing needs, climate change and food security. But further reforms aren’t what appeal to these interests, but rather exemptions and exclusion of the public from land use changes.

Passing exemptions to the law to enrich certain landowners, without even pretending to hear from the state agency staff with the expertise and the responsibility to administer the law, undermines the rule of law and opens the door to political corruption. Exclusion of the public will lead to the loss of credibility and support for its planning program. In this, the Democratic leadership is following the path being blazed by MAGA. They should be ashamed of themselves.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at esulliva@gmail.com.

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or crichter@batemanseidel.com.

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��Ƶ guarantees the accuracy or completeness of any information published herein.

The post Decades after SB 100, Oregon’s land use mojo is at risk | Opinion appeared first on Daily Journal of Commerce.

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 “limited land use decision.” Now, a mere six months later, the governor’s 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 “clear and objective decisions” about housing. As Matthew Tschabold, the governor’s housing and homelessness initiative director, recently explained to the House Committee on Housing and Homeless, the rationale is to “avoid the impression of discretion” and “misaligned expectations” of what “can come out of a hearing.” 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 “limited land use” 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 “common boundary with the subject property” 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 “may not require any public hearings” or “any local appeals.” 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 “clear and objective,” 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 “development of housing.” Does “development of housing” 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 – like grading necessary for a driveway or the extension of public facilities? Suppose no public facilities exist to serve a development – 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’s 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 – 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 “red tape” 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 esulliva@gmail.com.

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or crichter@batemanseidel.com.

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��Ƶ guarantees the accuracy or completeness of any information published herein.

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Although Oregon’s planning program is more than a half century old, maintenance of that program requires participation and vigilance by all actors. The Statewide Planning Goals apply to all local land use policies, including new or amended plans and land use regulations. While there is a process for periodic review of local plans and regulations, it isn’t used much. Most changes affecting such things as zoning or subdivision codes or plan maps or zoning for individual parcels are done on an individualized basis through what Oregon calls the post-acknowledgment plan amendment (PAPA) process (as it deals with alterations to plans and land use regulations already “acknowledged” as complying with those goals.)

There are hundreds of these discrete amendments every year and each one is subject to a two-step process. That process involves notices to the state (both before and after an amendment is adopted) with an opportunity to comment on those proposals at the local level at the first step and the ability to seek review at the Land Use Board of Appeals (LUBA) after local adoption at the second step.

The notices are triggered by local government transmittal to the state’s Department of Land Conservation and Development (DLCD) of a proposed amendment 20-35 days before the first evidentiary hearing before that local government. In this first step, DLCD and any interested person can convey comments and concerns to that local government before that hearing. More importantly, DLCD maintains an email list of those wishing to be notified of these changes, so that there is a central database to track them. Many special interest groups, such as organizations in the banking, homebuilding and real estate fields, as well as public interest organizations, can review these notices and decide whether to participate locally.

The second step requires the local government to transmit an amendment and its supportive justification within 20 days of adoption to DLCD. Any person or interest group requesting notification of adoption receives notice electronically. With some exceptions, most challenges are heard by LUBA. Any local hearing participant must initiate a challenge of an amendment within 21 days of adoption or notification.

For parties interested in housing, including the implementation of state laws that require more lands to be available for denser and multiple types of housing, the PAPA process provides the forum to assure that state policies are implemented at the local level. Development interests, public policy advocates, and others will examine proposals transmitted to DLCD and compare them to what the law requires, and draft and may then present testimony expressing their views.

This column is dedicated to those housing advocates who do this quotidian work within a very short deadline. These are the folks who review and comment on proposed changes and who review the local responses to their comments (sometimes on multiple occasions) to decide whether that outcome deserves commendation, an expression of concern over the adequacy of consideration directed to state or regional housing reviewers or should be challenged in LUBA. Their comments must be composed quickly and coherently, to allow for local government review and response. The comments may be delivered in person or by written communication. By allowing remote participation at public hearings, greater comment opportunities are provided.  For legal purposes, a letter or email to a local government is equally effective and equivalent to an in-person or virtual presentation.

Many individuals and interest groups can, and do, participate in local land use plan and regulatory changes relating to urban housing. However, Oregon’s PAPA system provides access to advocacy groups like Housing Land Advocates (HLA), a public interest group seeking policies that “affirmatively further fair housing” (a phrase taken from the 1968 Federal Fair Housing Act), of local government actions throughout the state. HLA and the Fair Housing Council of Oregon (FHCO) have launched their PAPA project as a means of providing advice to local governments in meeting their housing obligations.

On a weekly basis, an HLA volunteer planner surveys all the PAPA proposals by local governments in their DLCD notices and flags those related to housing. That subset is then forwarded to one or more HLA board members to evaluate and formulate comments for HLA and FHCO, another advocacy organization supporting affordable housing. Those comments are reviewed and, with any revisions, are sent to the local government in advance of their action on the proposed amendments. Those comments serve multiple purposes: they may suggest further revisions to the proposal or commend the same; they may provide additional information to support their recommendations, and, if necessary, warn the local government that its proposal may be challenged by HLA or others for violation of state law. These comments may trigger discussions and revisions of the local proposal.

The dedicated effort to engage with local governments through HLA and FHCO’s PAPA project has existed for almost a decade and has been largely undertaken on a voluntary basis. Its participants are generally veterans who can more easily review local government proposals and suggest commendations or possible revisions. Its representatives have significant informal interactions with local planners so that potential conflicts are identified and more likely to be resolved. Long-term observers generally agree that Statewide Planning Goal 10, inadequately addressed in the past (if addressed at all), is now a regular part of PAPA affecting urban housing and that housing-related findings to justify changes are the norm. Information on the PAPA project may be found on both the HLA and FHCO websites.

While LUBA appeals and litigation are a part of Oregon’s land use program, their avoidance through advice from a respectful reviewer and collaborator can obviate conflict. In any event, the PAPA project is a significant and valuable addition to the constellation of planning tools for housing equity in the state. Hats off to this effort!

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. He is a Housing Land Advocates board member and a participant in the PAPA process. Contact him at esulliva@gmail.com.

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or crichter@batemanseidel.com.

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��Ƶ guarantees the accuracy or completeness of any information published herein.

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At least 90 percent of the fossil fuels serving the state of Oregon are stored in, or transported through, the northwest industrial area of Portland, which is in a moderate to high-risk earthquake liquefaction zone. Zenith Energy Terminal Holdings LLC operates such a terminal where it stores approximately 64 million gallons of petroleum and renewal fuels for distribution, as well as an asphalt refinery. Zenith operates pursuant to an Air Contaminant Discharge Permit issued in 2022 by the Oregon Department of Environmental Quality (DEQ).

Any state agency action affecting land use must be accomplished “in a manner compatible with acknowledged comprehensive plan and land use regulations.” Although a state agency can conduct the necessary compatibility review, it most often defers to local governments by asking applicants to secure a check-the-box template for completion. This is known as a land use compatibility statement or LUCS.

The LUCS submitted in 2022 asked that the city approve a “repositioned facility” that would phase out all crude oil and instead handle sustainable fuels. The 2022 LUCS described four limitations on facility operations, which Zenith proposed and were imposed through conditions of approval. The 2022 LUCS was not appealed.

In 2024, Zenith sought to update its DEQ permits to allow certain operational changes, including expansion of the area of use and installation of equipment to produce sustainable jet fuel. The city approved this request, checking the box that “the activity or use is allowed outright” and that “the activity or use is allowed; findings are attached.” In support, the city attached a lengthy written narrative submitted by Zenith addressing more than a dozen comprehensive plan policies. Further, the city included revised versions of the same four conditions included in the 2022 approval: 1, the phaseout of crude oil; 2, reduction in storage tank capacity; 3, reduction in emissions of volatile compounds; and 4, closure of the asphalt refinery. According to the decision, these conditions are enforceable by the city.

Northwest Environmental Defense Center (NEDC) and others appealed the 2024 LUCS to the Land Use Board of Appeals. Zenith and the city moved to dismiss the appeal for lack of jurisdiction. LUBA can review only those types of decisions delegated to it under state law. When it comes to a LUCS, where a local government checks the box that “the use is allowed without review under the acknowledged comprehensive plan and land use regulations,” the decision is not a land use decision eligible for review by LUBA. According to the city, the facility is allowed outright in the zone and as such, deemed compatible with the comprehensive plan falling squarely within the LUCS exception and not subject to LUBA review.

NEDC countered that by adopting findings evaluating compliance with regulations and plan policies that resulted in the imposition of enforceable conditions, the city did in fact conduct a review. This review, resulting in the imposition of four enforceable conditions, converts this otherwise exempt LUCS into a discretionary land use decision subject exclusively to LUBA review. NEDC highlighted that the 2025 LUCS conditions are more expansive and detailed than those imposed in 2022, suggesting that the use was not accomplished “without review.”

LUBA’s analysis begins by noting how unusual it is for a LUCS decision concluding that a use is permitted outright to include conditions. If the use is permitted outright without review, conditions would be unnecessary. LUBA noted that the city’s authorization to impose conditions appears limited to “discretionary reviews” or were imposed for reasons that had nothing to do with zoning compliance. The focus, according to LUBA, is only on whether the facility is allowed outright and once that determination is made, review of the lawfulness of the conditions rests entirely with the circuit court and not with LUBA. NEDC appealed.

The Court of Appeals review started from the premise that the conditions imposed through the 2025 LUCS were “conditions of land use approval” under the city code. Also important to the court was that the city decided that it had authority to impose conditions. These types of decisions are not limited exclusively to whether a use is allowed without review but rather require the discretionary application of land use regulations – the magic language for triggering LUBA review. The court explained that overlooking the four conditions, LUBA improperly expanded the narrow exception from LUBA jurisdiction for certain LUCS decisions to include other types of land use decisions, “as long as they are folded into a LUCS.”

Interestingly, the Court of Appeals’ decision attributes to the city arguments that the conditions expressly imposing reductions moving toward a more sustainable model were not necessary to approve the LUCS. This is the same city that for over a decade has fought to rid itself of being the fossil fuel storage capital of the state. Zenith argued that the conditions reflected nothing more than the state of its use subject to the 2022 conditions. The court highlighted the language of the condition that the facility “will be limited … with such limitations being conditions enforceable” by the city through conditions. This text does not suggest that the conditions are hortatory, but rather enforceable.

With that reversal by the Court of Appeals, the matter is now remanded to LUBA to consider the merits of the NEDC appeal. NEDC’s arguments on appeal have not been presented yet but presumably will include a claim that, in addition to being a “land use decision” subject to LUBA review, this decision is also a “permit,” which triggers notice and the opportunity for a public hearing type of review. Presumably the scope of the conditions will also be critical. It is unclear whether the parties would agree to voluntarily remand the decision to remove the conditions that the city apparently now believes are unnecessary or continue to defend a decision that questions the authority for those conditions in the first instance. What is certain is that including conditions as part of a LUCS exception for “check the box” approvals – which is not as uncommon as LUBA thinks – are likely to be land use decisions and that local governments must think carefully when adopting this approach.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at esulliva@gmail.com.

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or crichter@batemanseidel.com.

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��Ƶ guarantees the accuracy or completeness of any information published herein.

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For better or worse, Oregon has long differed from other states in land use law, particularly for housing. For over 50 years, housing has been a significant element of state policy. In the past 10 years, however, the state legislature has repeatedly taken up housing to respond to a shortfall that overshadows almost all other urban issues.

The notion that housing be subject only to “clear and objective standards, conditions and procedures” and that those conditions, and the land use process itself, must not discourage needed housing through “unreasonable cost or delay” resonates through the system. Housing is given special treatment in terms of legislative incentives for low- and moderate-income units – unlawful denials or unsuccessful challenges to housing are met with attorney fee sanctions, urban growth boundary amendment rules have been eased to accommodate more housing, strict decisional timelines are provided, landlord tenant laws are strengthened, and responses to homelessness are mandated. The 2025 Oregon Legislature has continued this trend as this survey attests.

More recently, urban areas must allow density increases to accommodate ambitious goals for new housing. Smaller cities must allow accessory dwellings, duplexes, and single-room occupancies wherever single-family homes are permitted, while larger cities must, in addition, allow on those lands a suite of alternative housing types such as duplexes, triplexes, quadplexes, townhouses, and cottage clusters. Changes in the law also allow applicants for middle housing projects to divide their lands so as to accommodate those higher densities. Those local governments that fail to rewrite their zoning regulations to allow middle housing are subject to state sanctions, including imposition of a state model code that would allow those uses.

Among all these changes was the authorization, and later adoption by the legislature, of the Oregon Housing Needs Analysis (OHNA), which provided for a means of assessing housing needs on a statewide basis, allocating those needs by local jurisdiction, and providing housing targets for each of them. To assure that state housing expectations were not ignored, the legislature established a Housing Accountability and Production Office (HAPO), with support of those state agencies involved with housing and land use. HAPO would assist housing developers and local governments and would also process complaints that local governments were not permitting development as required by law. Moreover, HAPO was given enforcement tools by the legislature, in addition to those already provided under state land use laws.

Cities are now obliged to prepare a Housing Capacity Analysis (HCA) to determine if it has sufficient land to meet projected housing needs for a 20-year period. If there is a shortfall in housing capacity, the city must either amend its urban growth boundary (UGB), allow more housing development within the existing UGB, or combine both approaches. In addition to providing housing expectations, allocations and targets, the state now seeks to require cities with populations greater than 10,000 to report periodically on their housing actions through a Housing Production Strategy (HPS), which must be adopted within a year of its HCA. The HPS must include specific actions the city plans to take, like changing regulations or offering financial incentives, to encourage the development of the necessary housing types identified in the OHNA.

Enforcement of housing obligations includes a Housing Acceleration Program that may require an audit of a local government housing program if it appears to be underperforming on its production targets or equity metrics. If the audit concludes there is a deficit, the state and local government must enter into an agreement to take actions within their respective control, with state financial and technical support, to address identified barriers. If the local government fails to enter into or abide the terms of an agreement, the state can issue an enforcement order to require compliance. Until the city complies, the order can impose a developer’s remedy in the form of a model code and ministerial review process that supersedes local land use regulations.

The state has provided local governments with a list of tools, actions, and policies that would help them increase housing production. They range from amendments to land use regulations, financial and tax exemptions and abatement, and various real estate initiatives to meet the targets. The state has combined these creative efforts with financial incentives in the form of support for loans for infrastructure (although at fairly paltry levels), incentive programs to facilitate housing for those with disabilities, and provision of additional density for lower-income homeowners and renters if a certain number of units are bound by long-term covenants to sell or rent at levels commensurate with their incomes.

Lowering housing costs is a significant driver in the campaign to increase housing production. Moreover, more local housing decisions are steered to a template where there are fewer hearings and little local discretion over such matters as design. The state also encourages housing designs from templates.

Thus, a combination of funding (which is likely to be more difficult to continue at current levels, given state government financial projections), development incentives through the easing of regulations, and a willingness to require local governments to approve more housing are likely to make more housing possible. However, just as King Canute could not command the tides, interest rates, higher costs of construction materials, and the lack of construction personnel (in part due to immigration raids) may render the deregulation efforts less effective. Nevertheless, these efforts are significant and a model for other states to lower zoning barriers to housing.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at esulliva@gmail.com.

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or crichter@batemanseidel.com.

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��Ƶ guarantees the accuracy or completeness of any information published herein.

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In 2023, the U.S. Supreme Court ruled, in Tyler v. Hennepin County, that counties must have a process allowing former owners to recover the surplus proceeds following a foreclosure sale for unpaid property tax debt, even where state law allows counties to keep those funds. The court said that to do otherwise, would constitute a taking under the Fifth Amendment to the U.S. Constitution. Until recently, Oregon had a similar law allowing counties to retain any excess. Some parties have argued that retaining proceeds has the effect of depriving owners of the equity in their homes in cases of foreclosure, disproportionately impacting minorities.

In response, Oregon needed to revamp its laws to create a system for returning these funds. Changes were necessary, not only for foreclosures in the future, but also for potentially disgorging funds from past forfeitures as well. The 2024 Legislature passed HB 4056, which required the Department of Revenue to work with counties to refine this procedure; however, lacking urgency, the matter remained unresolved.

The 2025 Legislature responded by passing HB 2089, which details the procedure for properties that counties must follow. That includes a standardized notice, translated into multiple languages, that explains the foreclosure process and the right of redemption as well as information to access the unclaimed property website.

Counties must provide additional notice of any surplus within 60 days after which any claimant could make a claim for the surplus along with notices to cities and other state agencies, which may also have claims for proceeds.

The law goes on to detail the steps that counties must follow for selling property subject to a foreclosure judgment, depending on whether the property is residential or nonresidential. It includes obtaining appraisals, initial efforts to sell the property via a real estate agent, and auction with a minimum bid demand of two-thirds of the fair market value; only after exhausting these efforts can the county attempt to auction the property for the minimum amount necessary to cover the debt. Appraisal costs and real estate agent costs will absorb some of the profits. The amount of the surplus is determined within 60 days after the sale and any surplus must be deposited as unclaimed property with the Oregon State Treasury.

Importantly, HB 2089 took effect in September 2025, and this procedure applies to all property and claims where the claimant received a one-year redemption period notice on or after May 25, 2023.

However, this bill does not address how counties must deal with surplus profits recovered before 2023. According to partial data compiled by the Oregon Association of Counties, there are at least 172 properties that would have qualified for a refund since 2018, with some speculation that the cost owed for compensation would be somewhere around $50 million. Nothing in HB 2089 creates any kind of fund for repayment, suggesting that this debt may fall solely to counties.

With respect to the amount of the look-back period, the Court of Appeals ruling in Western States Land Reliance Trust v. Linn County issued last month was instructive. It is the first case dealing with the Tyler ruling in Oregon.

In 2008, after the plaintiff failed to pay property taxes, the county filed a foreclosure action and without any appearance by the plaintiff, a judgment was entered. And upon expiration of the two-year redemption period, the property’s title was forfeited to the county. In 2022, the county sold a portion of the property for $800,000. The county used these funds to pay off the $248,000 tax debt and retained the remaining proceeds.

In 2024, the plaintiff filed a Section 1983 claim arguing that under Tyler, the county’s retention of the surplus proceeds was a taking. In response, the county argued that unlike the statutory scheme at issue in Tyler, a property owner is entitled to file an answer in its defense at a foreclosure proceeding; there, a claimant could seek recovery of any profits.

Disagreeing with the county, the court concluded that the question was not whatever rights a claimant may have before the title passes but rather afterward, once title passed to the county and the redemption period expired, the taking occurred. Oregon statutory scheme that requires any excess funds remain with the county was squarely within the ambit of Tyler and therefore deemed unconstitutional.

Here, the case takes an interesting twist. The county put forth an alternative argument – that the takings claim was untimely. The statute of limitations for Section 1983 claims for constitutional violations is two years. This period starts as soon as there is a present cause of action upon which a party could seek relief. The county argued that the claim accrued in 2008, when the foreclosure judgment was entered. The plaintiff argued that its ability to file a takings claim accrued in 2022, when the county sold the property and took the surplus proceed for itself. The court found that claim accrued in 2010, which the redemption period ended, and the property was essentially deeded to the county. It was at that point that the plaintiff had an equitable interest in the surplus value and suffered the unconstitutional taking and therefore, the plaintiff’s claim was time-barred.

The result is that the county’s obligation to disgorge funds will extend back only two years to those cases where the right of redemption expired after 2023, lining up directly with the newly enacted distribution of proceeds procedure of HB 2089. This is likely a welcome result for cash-strapped counties that would have been challenged to locate claimants from years ago. But this leaves out entirely the individual homeowners who will be unable to recover from past wrongs.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at esulliva@gmail.com.

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or crichter@batemanseidel.com.

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��Ƶ guarantees the accuracy or completeness of any information published herein.

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