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Oregon Court of Appeals Gives a Boost to the State’s Provision of New Housing



On March 20, 2019, the Oregon Court of Appeals affirmed the Land Use Board of Appeals (“LUBA”) in a decision interpreting ORS 197.307(4), which is the “clear and objective” requirement of the ORS 197.295-.314 needed housing statutes. Warren v. Washington County helps ensure that the Portland metro region and other cities in Oregon can meet goals for the provision of new housing. Housing has been a critical issue in Oregon, especially since the recovery from the Great Recession of the mid-2000s. Since 1981, Oregon has had the needed housing statutes in place in one form or another. The purpose of the needed housing statutes is to ensure an adequate supply of buildable lands within urban growth boundaries for housing. 

One particularly tantalizing but at the same time vexing provision of the needed housing statutes has been the ORS 197.304(4) clear and objective requirement. Prior to the passage of Senate Bill 1051 in 2017, ORS 197.304(4) required local governments to adopt and apply only clear and objective standards, conditions, and procedures to regulate the development of needed housing on buildable land. The tantalizing part of this provision was that if you could demonstrate that your land use application for residential development was for needed housing on buildable land, the provision would get you out of all sorts of subjective standards that a decision-maker or neighborhood opponents could use to create havoc with your approval. These include standards such as, “The development will preserve as many on-site trees as feasible,” or “The development will not alter the character of the surrounding neighborhood.” The vexing part of this provision was that it was not always clear that your development qualified as needed housing or that the subject property met the definition of buildable land. There was plenty of litigation over the years in attempt to suss out what these provisions meant.

Senate Bill 1051 made ORS 197.304(4) much easier to meet by removing the requirement that the proposed residential development meet the definition of “needed housing” and that it be sited on “buildable land.” Specifically, ORS 197.304(4) was amended to apply the clear and objective requirement to simply “the development of housing, including needed housing.” The restriction to “needed housing” was lifted, and the reference to “buildable land” was deleted.

In 2017, the meaning of the amendments to ORS 197.304(4) was appealed to LUBA from a Washington County hearings officer’s decision on a six-lot subdivision. LUBA remanded the hearings officer’s decision for additional evidentiary findings related to the subdivision. After the hearings officer made a new decision on remand, that decision was again appealed to LUBA and LUBA affirmed. On review, the Court of Appeals made it clear that Senate Bill 1051 means what it says, i.e., the clear and objective requirement applies to all housing (with a couple of exceptions not relevant here) and the “buildable land” requirement no longer applies. The upshot is that most residential development projects will be subject to only clear and objective standards, which will make them substantially easier to get approved. Many local governments do and will continue to have a second non-clear-and-objective path for residential development approval, but that is acceptable under the statutory scheme. The statutory scheme just requires that there be at least one clear and objective path.

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