A recent land-use decision in Yamhill County, Oregon, specified a list of allowed cookies that can be baked by a wheat farmer hoping to add an artisan bakery to sell bread to the many wine tourists in the area. Chocolate chip cookies are not on the list.
The county decision also imposed a questionable prior restraint on the business by prohibiting future requests to expand the bakery with an additional oven not contemplated in the start-up business plan. Message to businesses – welcome to Yamhill County, Oregon.
The Yamhill County case, land-use Docket No. C-22-19/SDR-35-19, has already had a crooked path. The original administrative approval was appealed by a local special interest advocacy group, the so-called Friends of Yamhill County that has a long history of opposing increased economic activity on farmland. Yamhill County is perhaps the Oregon epicenter of the evolution away from lower-value commodity agriculture to a more value-added, direct to the consumer business model. It is no coincidence that Yamhill County is famous for starting Oregon’s journey into international stardom in the wine industry. Agri-tourism is the leading industry in Yamhill County – the industry that pulls in the most related and unrelated new economic activity, not necessarily the biggest revenue generator itself.
After the appeal, the parties reached a settlement, which among other terms set the list of allowed cookies. If you wonder where the elected officials are on this case, they can avoid going on the record unless someone appeals the new decision. They should put themselves on the record regarding their leading industry.
So if you want a spelt/hazelnut cookie, or a Sable Breton, you are good to go. But if you want next year’s most famous cookie craze, you, and the baker, are out of luck.
While local government has a legitimate role via its jurisdiction over issues regarding building and land development, when it starts to set the cookie menu, something has gone awry.
The planned expansion of Oregon’s Port of Morrow onto 90 acres of farmland has hit a roadblock after a key rezoning decision was overturned.
Morrow County’s approval of the expansion, which is intended to make way for a data center, was challenged by the 1,000 Friends of Oregon nonprofit organization earlier this year.
The Oregon Land Use Board of Appeals has now determined the county didn’t properly change the 90-acre parcel from an “exclusive farm use” zone to a “port industrial” zone and must reconsider the decision.
The Port of Morrow is “somewhat surprised” by the “disappointing” decision, as it had planned to rezone an equivalent industrial property so there’d be no net loss of farmland, said Ryan Neal, the port’s executive director.
“We were basically swapping acre for acre, just in a different location,” Neal said.
The port is still considering whether to revise its proposal to the county, challenge the LUBA ruling before the Oregon Court of Appeals or drop the expansion plan altogether, he said.
“We’re still reviewing what our options are,” Neal said.
To rezone the 90-acre property, Morrow County decided an exception to Oregon’s statewide land use planning goal of preserving farmland was warranted.
The data center, which would house computer servers, requires a rectangular parcel of at least 85 acres as well as 115 kilovolt electrical transmission lines and access to farmland for discharging cooling water, according to the county.
Rezoning the 90 acres east of the Port of Morrow’s industrial park wouldn’t cause a net loss of farmland because another nearby parcel of the same size would be rezoned from “port industrial” to “exclusive farm use,” the county said.
While the county and the port argued that alternative sites wouldn’t sufficiently accommodate the data center’s specific needs, LUBA ruled that the analysis was inadequate under Oregon law.
“We agree with petitioner that the county’s findings fail to explain why the data center use requires a location on resource lands, as opposed to otherwise suitable non-resource lands,” the ruling said.
The county should not have excluded certain alternative sites from consideration without determining “whether these properties could be made available for the data center in a timely manner,” LUBA said.
Likewise, the county should not have dismissed certain parcels because they include wetlands or because they’re too close to other data centers without discussing the associated costs of potential mitigation measures, the ruling said.
Although the county claimed there would be no net loss of farmland, this analysis was also lacking because it did “not discuss the quality or productivity” of the parcel that would be developed, according to LUBA.
Though it’s not out of the question the data center could find another home, the planned site would have been useful for the Port of Morrow, Neal said.
By beginning to expand eastward onto the 90 acres, the port wouldn’t have to make as much of a leap when extending services to roughly 2,000 acres of federal property it plans to acquire eventually, he said.
“That would have been one of the benefits,” Neal said.
A bridge construction project in Oregon’s Yamhill County will remain halted after a state land use board determined it may be unlawful and irreparably harm farmers and wetlands.
Opponents of the bridge project along a proposed 3-mile recreational trail have plausibly alleged Yamhill County approved it in violation of zoning ordinances, according to Oregon’s Land Use Board of Appeals.
Construction on the bridge must remain suspended until LUBA can conduct further deliberations in the case. Opponents and the county must submit additional legal briefs before oral arguments take place on May 27 by telephone conference.
The decision extends a stay order imposed by LUBA earlier this month after critics complained the bridge project impermissibly advances the controversial rail-to-trail project, whose approval LUBA overturned last year.
Yamhill County was ordered by LUBA to more closely scrutinize potential agricultural impacts from the Yamhelas-Westsider trail, which is opposed by numerous farmers along the route between Yamhill and Carlton.
Opponents of the recreational trail argued the local government “duped” LUBA by proceeding with the bridge project even though the trail hadn’t yet been fully reviewed for farm impacts, such as increased restrictions on pesticide usage and crop contamination from litter and trespassing.
Yamhill County argued the bridge wasn’t subject to Oregon’s land use process because it’s intended to improve access for fire trucks and wouldn’t be opened to the public until the overall recreational trail passes legal muster.
According to the county, critics also failed to show the bridge would cause “irreparable harm” that would warrant stopping construction, since the project is far enough from hazelnut trees that it won’t impede herbicide and fungicide spraying.
Food safety also won’t be a problem because the bridge was scheduled to be finished before May 1, long before hazelnuts would be grown and harvested from trees that were planted last year, the county said.
The county argued that “all environmental clearances were obtained” for the bridge, whose construction is being overseen by consulting engineers and the Oregon Department of Transportation.
Although LUBA said the issue of pesticides was “a reasonably close question,” the board determined that farmer Ben Van Dyke has established the construction site was close enough to prevent him from necessary sprays, at least for the purposes of staying the project.
Litter from the construction site is also a “probable” injury for the purposes of the stay order, since the county hasn’t promised to ensure detritus won’t blow onto the hazelnut farm, according to LUBA.
As for environmental approvals, LUBA found that documentation from the state and federal governments didn’t clearly enough show that construction won’t occur in regulated wetlands.
The state and federal approvals also cited the county’s conditional use permit for the recreational trail, but that permit is no longer effective after Yamhill County was ordered to reconsider the decision, according to LUBA.
The bridge project, which would cost $1 million to design and build, was largely funded by government grants and wouldn’t be easily removed if it’s later decided the county approved it unlawfully, LUBA’s order said.
At the Metro Technical Advisory Committee (MTAC) meeting on Jan. 15, the committee was briefed by staff from the Oregon Department of Land Conservation and Development (DLCD) regarding the ongoing implementation of recently adopted HB 2001, also known as the “Missing Middle Housing” bill.
Requirements for large and medium cities
The Oregon Legislature passed HB 2001 on the final day of the 2019 session in an attempt to allow for greater housing choice and increased supply in residentially zoned areas. In passing the bill, the Legislature identified what it believes to be a significant lack of supply of middle housing, which bridges the gap between single-family homes and mid- or high-rise apartment buildings. Affected cities are required to update their local regulations, which have previously limited what types of housing could be built. Supporters of the bill argue that those limitations led to increased housing costs across the state. However, many people believe the bill will negatively impact neighborhood character and accelerate housing displacement, especially within Portland city limits.
Implementation of HB 2001 is of primary concern to the Metro Council, because its impact will be felt most significantly by metro cities, which are largely defined as “large cities” under HB 2001. These include cities with a population greater than 25,000, unincorporated areas within the Portland-metro boundary that are served by sufficient urban services, and cities within the Portland-metro boundary with a population greater than 1,000.
The bill requires all large cities to allow construction of additional “middle housing” inventory beyond duplexes. These include fourplexes, multiplexes, accessory dwelling units (ADUs), and cottage clusters of homes centered around a common yard.
HB 2001 affects cities statewide, including sizable ones like Bend and Medford, but also smaller ones like Newport and Pendleton. These “medium cities,” as defined in HB 2001, are all those “outside the Portland-metro boundary with a population between 10,000 and 25,000.” HB 2001 requires medium cities to specifically provide for construction of duplexes in areas zoned for single-family dwellings.
In addition to specific changes to local development regulations, HB 2001 also imposes new limitations on, for example, zoning and development standards relating to ADUs, CC&R provisions relating to middle housing in residential neighborhoods, and building codes.
The bill does provide some flexibility for medium and large cities to regulate siting and design of middle housing, provided that the regulations do not, individually or cumulatively, discourage development of all middle housing types permitted in the area through unreasonable cost or delay. The bill also provided $3.5 million for technical assistance to cities, and DLCD has been tasked to work with local governments to update their codes and implement the specifics of the bill by mandated timelines.
Deadline for new regulations
Medium cities have until June 30, 2021 to adopt local code sections implementing HB 2001 requirements. Large cities have until June 30, 2022 to do the same. While affected cities may request an extension from DLCD due to infrastructure deficiencies, if the extension is not approved by DLCD and the city fails to develop regulations implementing middle housing by the applicable deadline, a model code promulgated by DLCD will apply directly.
DLCD has a deadline of Dec. 31, 2020 to adopt a model code for all affected cities. DLCD noted at the MTAC meeting that this is a significant undertaking, because the bill requires promulgation of a code that will be generally applicable to all affected cities, while at the same time accounting for the fact that cities across the state face diverse planning and infrastructure challenges.
Impacts of HB 2001
The cumulative effect of HB 2001 on metro-area cities – where the bill will have the most acute impact – remains to be seen. The city of Portland is in the process of undertaking its own Residential Infill Project, which will allow for additional middle housing in conjunction with the requirements of HB 2001. Additionally, the city is revising its rules around multifamily housing, called “Better Housing by Design.”
Another metro-area city, Beaverton, is in the process of developing its own Housing Options Project, which is designed to increase middle housing inventory within existing neighborhoods. However, because affected cities are still in the planning stages of implementing HB 2001, the implications of the bill will not be fully revealed until new housing development comes online.
Beyond the impact to Oregon cities, the bill will also require private developers to adjust market strategies and long-term planning objectives. Small-scale developers have historically been the most active builders of middle housing, while major developers have focused on large single-family homes in suburban areas or high-density multifamily projects. It is not clear whether HB 2001 will encourage major developers to become more active in the middle housing arena.
Further, national studies have provided conflicting answers as to whether denser zoning leads to additional construction. It is highly likely that Oregon cities will see dramatically different effects when the new middle housing regulations come online. Certain cities will see a dramatic increase in middle housing supply, while others may see a less tangible change, due to infrastructure constraints, market demand, and siting and design requirements – which will vary from city to city.
HB 2001 will require private developers to engage in a complex balancing act, simultaneously striving to achieve the bill’s goal of creating more housing, while at the same time navigating shifting market demand and new development regulations.
Keenan Ordon-Bakalian is an attorney in Jordan Ramis PC’s land use and development practice group. Contact him at 360-567-4843 or email@example.com. This column is intended to provide readers with general information and not legal advice. Consult professional counsel for help regarding specific situations.
For decades land use regulation across the U.S. has emphasized single-family houses on large lots. This approach has priced many people out of the quintessential American dream: homeownership. It also has promoted suburban sprawl – a pattern of low-density, car-dependent development that has dominated growth at the edges of urban areas since the end of World War II.
Headlines have predicted a housing revolution. But based on our research, we believe that while attitudes about suburban life may be evolving, the transition away from single-family zoning will be slow and difficult.
Sprawl’s heavy costs
Elected officials are rethinking single-family zoning because some of their constituents worry that single-family houses cost too much, are wasteful and can isolate people from their communities.
We have examined how Oregon’s land use policy affects residential density and Oregon’s housing affordability crisis. Oregonians are known to be progressive and environmentally conscious. They hate density because they value privacy and space. But they also hate sprawl because it consumes valuable agricultural land.
In short, Oregon would seem to be the ideal starting point for policies curbing single-family zoning. One of its 19 statewide land use planning goals, which were adopted in the early 1970s, addresses housing and requires cities to include many housing types. But exclusive single-family neighborhoods still dominate Oregon’s landscape today.
In the early 1970s, in what came to be named “the quiet revolution in land use control,” some states started taking back authority over zoning that they had ceded to cities and towns. In 1973, Oregon created “urban growth boundaries” – a line of demarcation between urban and rural land uses – around each of its cities, along with other measures to contain growth and prevent sprawl.
Our research shows that this approach has helped contain urban growth and promote more efficient land use. Single-family density in urban growth boundaries, as measured by single-family housing units per acre, has consistently increased since the zones were created. Statewide, single-family density increased 22% from 1993 to 2012.
Still, sprawl exists inside urban growth boundaries. We have found that land exclusively zoned for single-family homes can hold only a maximum of eight to ten units per acre. And as demand for houses exceeds supply, lower-income families are pushed into cheaper areas far from their work. Up for Growth, a national coalition that advocates for denser development, estimates that only 89 housing units were built in Oregon for every 100 households formed from 2000 through 2015.
In short, housing is getting more expensive. A 2019 Harvard study concluded that the supply of low-cost rental units (under US$800 per month) in Oregon decreased by 44% between 1990 and 2017. Today 63% of Oregon’s housing is stand-alone houses or detached single-family units.
Housing struggles make smaller dwellings more desirable
These issues aren’t limited to Oregon. According to the Harvard Joint Center on Housing, 47% of renter households nationwide are paying more than 30% of their income in housing costs. And new residential construction remains below pre-2008-2009 recession era rates.
Between 2000 and 2015, the U.S. underproduced 7.3 million units of housing, meaning that families across the country are struggling to find housing that is affordable and available. This shortage spanned 22 states and the District of Columbia.
Public officials are recognizing that allowing only single-family houses also creates equity problems. Single-family zoning segregated neighborhoods after World War II by excluding African American families, who could not afford to buy single-family homes, from middle-class white neighborhoods.
Today demand for smaller, connected houses – including duplexes, triplexes and quadplexes – within walking distance of services is increasing. People like living this way, but as architect and urban designer Daniel Parolek has shown, regulatory barriers deter builders from producing more of these types of housing, which he calls the “missing middle.” As Parolek points out, many of the diverse housing types that are common in older neighborhoods, such as duplexes and triplexes, are illegal under most current zoning codes.
A modest but important start
All of these factors helped drive Minneapolis and Oregon to move away from single-family zoning and allow more housing types. But for all of the attention that these actions have received, we predict that they will have modest impact.
Housing markets are complex and are affected by much more than zoning. One key question is whether costs will decline if policymakers encourage construction of diverse “missing middle” dwelling types.
But this does not mean that changing zoning policies is misguided. Promoting construction of broader ranges of housing creates more vibrant neighborhoods, reduces conversion of farm and forest land for suburban development, reduces infrastructure costs and provides more equitable housing opportunities for all.
Robert ParkerCo-Director, Institute for Policy Research and Engagement, University of Oregon
Rebecca LewisAssociate Professor of Planning, Public Policy and Management, University of Oregon
Robert Parker has received funding from the Oregon Department of Land Conservation and Development and the National Institute for Transportation and Communities relevant to this subject.
Rebecca Lewis has received funding from the Oregon Department of Land Conservation and Development and National Institute for Transportation and Communities relevant to this subject.