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Proposing major changes in land use permitting policy is most successful when it is preceded by months of advanced-session work building coalitions and ensuring an achievable outcome that fits within the existing regulatory scheme. This level of pre-session deliberation seems to have been jettisoned at the state level at times in the emergency mindset that surrounds the housing crises. All too often the approach is to introduce systemic structural changes without advance review, which demands that local regulators scramble to educate, revise and respond to achieve the objective in a workable way. Overhauling local review processes without time for refinement and input compromises the objective, sows confusion, and increases costs for the public as well as housing developers.
For example, the identified goal for Senate Bill 974 was to place time limits on local government post-entitlement decision-making — i.e., public work or engineering review, building permit review, land division plat review. However, as introduced, the bill shortened the 120-day time in which a local government must take final action on a “permit, limited land use decision or zone change” for a single-family dwelling to 45 days. This bill had no effect on post-entitlement review and other statutory time limits for such decisions would make compliance impossible.
Dash 1 amendments to this legislation introduced in mid-March required that all “urban housing applications” must be processed as “limited land use decisions” with a final decision within 120 days. “Urban housing applications” include comprehensive plan or zoning amendments, planned unit developments, concept plans, partition plats, engineering reviews for utilities and design reviews. In addition, any unsuccessful challenger before the Land Use Board of Appeals (LUBA) must pay not only attorney fees of the prevailing party but also all engineering costs for the development. Although this may well achieve the sponsors’ goal, it’s also more far-reaching and destructive.
Dash 2 amendments clarify that: 1, only quasi-judicial decision-making can qualify within the “urban housing application;” 2, variances are added to the list, and 3, final plat reviews or residential building permits are excluded. Although removing large-area legislative decision-making limits the scope of the legislation, retaining quasi-judicial plan and zoning code amendments require evaluation against the Statewide Planning Goals, the comprehensive plan and utility plans for adequacy and suitability.
Since these are discretionary reviews, more robust statutory procedures apply and require notice and opportunity for a hearing. But the limited land use decision procedure does not require a hearing opportunity. If a local government opts to provide only a 14-day notice period for comments under the limited land use decision process, the applicant is unable to revise the project in response after the record closes on the 15th day. This foreshortened procedure will disadvantage applicants in responding. And although the heavy fee recovery clause may incentivize approvals, sacrifices may be safety, livability and managed long-term utility costs for customers.
As for post-entitlement reviews, the Dash 2 amendments require that a local government issue all engineering permits, including “grading, water, sewer, stormwater, transportation systems, utilities and landscaping,” within 90 days after a 14-day completeness determination period. Given the level of engineering detail required to satisfy technical road, stormwater, water and sewer design standards, applicants’ responses to reviewers red lines often take more time than the review itself. This back-and-forth could lead to gamesmanship, where an applicant is either unable to respond given the hard deadline or fails to do so sufficiently. Either way, the local government is forced into issuing approval on the 90th day in violation of its standards or defending its untimely decision in a mandamus challenge in circuit court at the risk of paying attorney fees if it loses. Neither outcome achieves the objective of setting reasonable review timelines.
Further, the bill prohibits local governments from requiring any design review procedure or the imposition of conditions “relating to aesthetics, landscaping, building orientation, parking or building design” not including “limitations on size” for any development that includes, according to the -3 amendments, more than 20 residential lots. The term “aesthetics” is not defined. Does it include historic preservation, scenic view or Willamette River Greenway protections? Does “landscaping” include planting required to protect riparian or wetland resources? Does this apply only to multifamily, middle and single-family housing development?
Last year, as part of Senate Bill 1573, cities and the governor’s office painstakingly negotiated a mandatory adjustment program that would excuse compliance with certain development and design standards and grant oversight to the newly created Housing Accountability and Production Office. That whole mandatory exemption program goes out the window under SB 974-3 for the development of subdivisions including 20 or more lots. Do you want to fully grade to remove all the trees and develop windowless bunkers with zero setbacks turned from the street? No problem.
Every local government on record, along with the League of Oregon Cities, the Oregon chapter of the American Planning Association, and the Association of County Surveyors raised these fundamental safety and coherency concerns with this bill. This ought to be a sign that this bill is not ready for prime time. Yet, apparently undeterred, this bill continues moving forward.
Setting timelines on post-entitlement review may well be a positive step toward getting units to market. It may be that a 90-day review clock provides a realistic schedule that will not compromise safety, but the lack of definition in these amendments suggests otherwise. Expedited review will increase engineering and other review costs at the outset, which applicants will pay and pass along to the homeowner. And the bill will take effect on the 91st day after the session concludes — that isn’t much time for local governments to implement this sea change in approach.
Everyone wants to identify solutions to encourage the provision of housing but without consulting the engineers, plan reviewers, and planners to draft language that fits within existing statutory and local regulations, coupled with support from affected regulators. What is pitched as providing greater efficiencies will be a recipe for disaster.
Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at [emailprotected].
Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or [emailprotected].
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 DJC guarantees the accuracy or completeness of any information published herein.
