OP-ED: Big changes will greatly impact the housing picture in Oregon

From the Daily Journal of Commerc 12/10/19.

The 2019 session of the Oregon Legislature saw changes to many existing laws, but none as significant as those relating to requirements for state, regional and local government actions to meet housing needs. Two pieces of legislation are particularly significant: HB 2001, which requires more housing types in single-family zones in large and medium-size cities and the Metro region, and HB 2003, which provides for a uniform database for a more frequent review of housing statistics and needs and a basis for further actions to deal with housing shortages. These bills trigger some major changes.

Let’s first look at HB 2001, which was better known during the legislative session for ending the exclusivity of the single-family housing type in single-family zones. By mid-2021, medium-size cities (i.e., populations between 10,000 and 25,000) must also allow duplexes on all lots and parcels in single-family zoned areas, while large cities (populations over 25,000) and most cities and urban counties in the Metro region must, by mid-2022, allow duplexes on the same basis as medium-size cities, and in addition allow triplexes, fourplexes, townhouses and cottage housing clusters in large portions of these single-family zones. There are a few off-ramps, such as inability to supply sufficient urban services (a result our planning system was supposed to avoid) and the ability of the Department of Land Conservation and Development (DLCD) to grant extensions to deal with infrastructure deficiencies; however, requests for extensions from local governments must be accompanied by a plan of action to correct these deficiencies.

Local governments may regulate the siting and design of these new housing types, but only if those regulations do not, by themselves or cumulatively, discourage those new types through “unreasonable” cost or delay. One can expect to see these words frequently in Land Use Board of Appeals (LUBA) and appellate court opinions over the next few years, unless administrative rules adopted by the Land Conservation and Development Commission (LCDC) provide additional direction regarding such regulations.

LCDC is also directed to adopt administrative rules and model codes. If a local government covered by the rules does not adopt local ordinance provisions to implement the new law, the model codes will displace conflicting existing codes for single-family zones. That said, it is important to keep in mind that nothing in these standards requires middle housing actually be built. The Legislature also appropriated $3.5 million to assist local governments in complying with the new law in terms of code revision and provision of supporting infrastructure.

HB 2001 also clarifies earlier legislative direction that accessory dwelling units be allowable in most single-family areas by prohibiting obstacles that some local governments had used to discourage them, such as owner occupancy and off-street parking requirements. The legislation prospectively prohibits use of covenants that would interfere with these new legislative requirements and directs the Building Codes Division to consider code requirements that would facilitate conversion of single-family dwellings into duplexes, triplexes or fourplexes.

HB 2003 is more oriented to the housing planning process and deals with three areas:

  1. Every city with a population greater than 10,000 must have a housing needs analysis (HNA) submitted to the DLCD on a schedule adopted by the end of this year. The HNA must be updated every six years in the Portland region and every eight years elsewhere.
  2. The state, with Housing and Community Services taking the lead, must devise a regional housing needs analysis, a methodology for calculating housing needs on a regional basis to analyze and quantify the housing shortages in the state over a 20-year horizon. That analysis must consider matters related to the equitable distribution of publicly supported housing within a region and a housing shortage analysis for each city and Metro and must be completed by Sept. 1, 2020 and be submitted to the Legislature by March 1, 2021.
  3. Finally, DLCD must develop a methodology and adopt rules for a Housing Production Strategy (HPS) for cities with populations greater than 10,000 – including a list of specific actions that the city must undertake to promote development within the city to address housing needs identified in its HNA. Controversy over the adequacy of the HPS is years away – DLCD does not expect to begin reviewing them until late 2023, but it has enforcement powers to assure that local governments respond to these housing needs.

While the Legislature has spoken, that is not the end of the story. Eugene tried to derail state ADU requirements and is rumored to be leading efforts to repeal some or all of this new legislation. Though this legislation will not take effect for many months, if not years, the storm clouds of controversy may already be forming.

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.