Member Article

It is a truism to say that infill development in Oregon is fraught and expensive. This is apparently not lost on the Legislature, which over the past four years has enacted a number of laws to reduce local permitting barriers on infill projects in an attempt to provide for more affordable and middle-income housing. Nowadays a number of new tools are available: these include a recently-strengthened requirement that local governments impose only “clear and objective” standards for housing development (the “Needed Housing Rule”), requirements for local governments to allow accessory dwellings in single-family zones, and most notably, HB 2001’s requirement that all residential zoning allow some level of “middle housing.”

Although these laws help make middle housing possible, they have done little to make economically feasible the infill projects necessary to build middle housing. Now entering the fray is Senate Bill 458, which if enacted would alleviate one of HB 2001’s most glaring omissions: it would allow middle housing units to be more readily occupant-owned by allowing the land underneath middle housing units to be more readily subdivided. And SB 458 purports to make these types of subdivisions relatively fast and efficient.

More than 20 years before Salem’s recent efforts to curb municipalities’ limitations on middle-housing development, the Legislature created a much-heralded but ultimately little-used (and even less loved) process for “expediting” land divisions, appropriately known as the “expedited land division” or “ELD” process. The essence of expedited land divisions was a 63-day deadline for local governments to issue an approval on a complete application, elimination of any initial review hearing and limiting appeals to a hearings officer instead of a municipal council, and exclusion of the decision from the jurisdiction of the Oregon Land Use Board of Appeals. Unfortunately, ELDs are now only useful in a narrow range of development circumstances, remain seldom used by developers and poorly understood by local government staff, and are even less promoted by the latter.

This year’s Senate Bill 458 might just give both HB 2001 and the ELD process much-needed shots in their respective arms. Promoters intend that SB 458 will streamline land divisions necessary to allow HB 2001’s duplexes, triplexes, quadplexes, cottage clusters, and townhouses to be built on separate lots and thus, owner-occupied. SB 458 would also allow builders to apply for building permits and a middle-housing ELD at the same time, reducing the two-stage permitting process inherent in other types of subdivisions.

If enacted, SB 458 would not significantly alter the old ELD process but would impose a specific set of criteria that, if met, would require a local government to approve ELDs for qualifying middle housing projects. Specifically, SB 458 would limit the ability of local governments to use their own code criteria as barriers to development, notably prohibiting them from imposing separate vehicle access or frontage requirements, which are so often the third rail for infill land divisions.

SB 458 is in its final form and was approved by the Legislature on May 17. It has heavy bipartisan support and the Governor is likely to sign it. This will undoubtedly be followed by a period of trial and error as the first applications reach cities’ planning counters, but given the state’s structural—and largely self-inflicted—housing shortage, one certainly hopes it will have its intended effect.    

This article summarizes aspects of the law, it does not constitute legal advice. For legal advice for your situation, you should contact an attorney.