OP-ED: Public participation in Oregon’s land use system: a vexed issue

Oregon has citizen involvement as the first of its 19 statewide planning goals and has a statewide Citizen Involvement Advisory Committee to advise citizen involvement programs that each city, county and regional planning agency must have. However, public participation is more often ignored or despised by many participants in the planning process; they view it as a waste of time and obstructionist rather than constructive. Developers and local governments ascribe NIMBY (not in my backyard) motivations to organized local groups that participate in local land use hearings, and some urban sociologists claim that recognized neighborhood associations are too white, too insular and unrepresentative of their locality. These latter criticisms play a large part in the proposals to change recognized community participation in Portland’s planning scheme.

There’s a lot at stake here. Being “recognized” gives an organization a seat at the table before the decision-maker to allow the voices of affected members on various issues – parking districts, ordinance enforcement and, most important to many, zoning. While that participation does not give the neighborhood association (the term used for geographically-based entities that the city recognizes as representative of each area) “standing” (a legally recognized interest in the outcome), Commissioner Chloe Eudaly suggests a broader base is necessary so that other communities (business associations, underrepresented minorities, LGBTQ+ groups) may also participate. While the proposals keep changing, existing recognized neighborhood associations assert that longstanding modes of participation (including the opportunity to take an appeal of certain land use decisions at no cost to the City Council) may be lost.

Public participant testimony is often dismissed as insignificant or nonresponsive. While elected officials generally need not respond to all comments on policy matters, Oregon planning law does require a response to properly raised issues in a local government decision on a discretionary permit (a conditional use for a new sewage treatment plant, for example). Although that is a good thing because it demonstrates that citizen testimony was indeed heard, it can be time-consuming for applicants and local government staff. And sometimes an appeal may be needed to clarify how the local governing body construes a plan or zoning ordinance provision.

Local governments in Oregon are authorized to recover some or all of their costs for appeals to their governing bodies. Questions of whether the public at large should bear these costs or whether some or all of those costs should fall on the appealing party, who may be disproportionately impacted or benefited by the outcome, are some of the policy questions local government decision-makers must weigh. Certainly imposing the full cost of processing an appeal on an individual appellant may render the appeal impossible.

While this result may be avoided through a fee waiver for individual appellants or neighborhood associations, current law places the prospect of true citizen involvement at risk. Local governments seeking reimbursement of the cost of processing appeals (as well as developers) sometimes point to the abuse of the appeals system by “frequent filers,” who appeal and add time and expense to review of projects that are often affirmed.

The 2019 Legislature enacted a bill that authorized the imposition of attorney fees on failed challenges to certain public housing projects approved by local government. This was not the first, and certainly will not be the last, proposal directed at discouraging appeals of certain local government decisions. But while discouraging certain appeals, the Legislature has thus far declined to consider the most appropriate way to balance and allocate the costs of processing appeals, which may be an even greater concern.

Citizen participation may also have another dark side. In 2001, William Fischel proposed the “home voter” thesis, suggesting that, unlike state and federal governments, local governments reflect different voter concerns – i.e., those of homeowners. Property taxation (the principal means of financing local governments and schools), local laws regarding public conduct and particularly zoning, reflect a deep-seated desire to protect property values. Developments that would bring more children, accommodate people of a different race or ethnicity or those with unfamiliar social or religious practices, or otherwise upend the prevalent single-family land use patterns of the area may often be subject to a skeptical, if not hostile, view. While immigrants vote with their feet, the Fischel hypothesis says that city and suburban homeowners remain and vote their perceptions of property values and choose to locate and express their preferences by voting in accordance with their own economic interests being significant.

By Fischel’s own admission, the hypothesis is less effective in larger cities, which have a significant rental cohort. In Portland, for example, there is political support for increasing density and a diversity in housing types, for rent control, and for less parking for multifamily developments than would be the case in Sherwood or Happy Valley, where the perceptions of the value of one’s own home will spill over into planning and land use decisions that may, for example, conflict with state policy to increase densities within urban growth boundaries.

In the early years of the state’s planning program, public participation was lauded; however, it was clear that this participation could not be used legitimately to oppose state policy on such things, for example, as farmland protection or alternatives to the automobile. The current discussions must balance public participation against a land use system influenced by relatively quick (by national standards) processing times.

Oregon has not fully dealt with public participation in planning. Its rules are vague, its enforcement avoided and its present status is a desiccated symbol of ambivalence. Despite state law to the contrary, the level of that participation has effectively become optional for local governments to allow public participation at whichever level they desire. The reticence of most local legislative leaders to deal with the role of the public in land use policy making may well lead to frustration of those who feel left out and unheard. Those sentiments have resounded on the national scene, leading to the implacable dissonance in national politics. Oregon can do better than that.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 45 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.