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The Oregon Legislature has ended its short session. The governor鈥檚 housing bill has been signed and 36,000 new housing units will be produced each year. NIMBY and local government concerns have been vanquished. Munificent homebuilders and selfless real estate agents will collaborate to end homelessness by providing inexpensive housing with greater density. Peace will guide the planets and love will steer the stars. Well, not quite. There are significant bumps in the road to nirvana.

First, there are the inconvenient facts of the marketplace. Take the one-time expansion of urban growth boundaries (UGBs) without having to meet state land use laws, a proposal formulated in the echo chamber of a governor-appointed Housing Production Advisory Council that lacked representation from land use watchdogs, environmentalists, and other voices that might question its recommendations to waive these laws. Its legislative passage came with great arm-twisting and is trumpeted as a major accomplishment for affordable housing.

However, it is unlikely that much, if any, affordable housing will be built without significant taxpayer subsidies. Those expansions areas are, by definition, at the edges of urban areas and likely require new infrastructure, pushing up the price of that housing. Add the requirement that 30 percent of the units must be for low- or moderate-income use and such housing is even more unlikely.

Moreover, the low- and moderate-income requirements are to be assured by covenants for 60 years. But if the development doesn鈥檛 pencil during this period, what鈥檚 to prevent a bankruptcy court from voiding the covenants after the original applicants have sold their interests and pocketed the profits? While the legislation supplies some funds for infrastructure, those funds are a drop in the bucket compared with housing needs 鈥� development must still generally depend on system development charges (SDCs), which would likely obviate most affordable housing. In Wilsonville, for instance, those charges add over $50,000 to the cost of a home.

Then there are state and local politics. Simply getting Eugene to allow for accessory dwelling units (ADUs), required by state law, took several years, three Land Use Board of Appeals (LUBA) cases and one Court of Appeals decision. Then there is the faux 鈥渉istoric neighborhood鈥� in Portland that uses its mid-20th century architecture to avoid increased density. And there is King City, which lost most of its city council because it approved development opposed by an existing neighborhood. The LUBA appeal against that development was unsuccessful, but the electorate had the last word in securing a recall.

Also consider the machinations of the 2024 Legislature to pass a law prohibiting referenda on annexations (after a successful petition had been filed in North Plains) 鈥� a law that may clash with the Oregon Constitution. If this retroactive legislation were successful, it will encourage one-off state legislation to change the rules to address the issue de jour. If not, it will encourage similar rebellions to thwart necessary development.

A third concern involves the perverse outcomes of the cumulative applications of housing legislation. In a recent article in the Northwest Neighborhood News, Allen Classen discusses 鈥淒evelopment without Design,鈥� a situation that occurs in most urban areas in which all housing regulations must be 鈥渃lear and objective.鈥� One result is the loss of a need for the applicant to meet with those affected by the development. (There is no need for discussion if there鈥檚 nothing to discuss.) Most cities don鈥檛 have the funds for multiple clear and objective design schemes, so the prospect of Soviet-style housing (monotonous, brutalist, and cheap) is real. There must be no avoidance of a mandate to accommodate low- and moderate-income housing, but it need not be all the same and it need not exclude neighborhood discussions of development that affects them.

Another ironic result of the drive toward certainty in housing is that any land use challenge involving housing runs the risk of liability for attorney fees. However, those fees must be awarded only if the developer prevails and include legal expenses in preparing and processing the application and supporting the application in local land use hearings or proceedings. So, if the local ordinance is unclear as to whether the term 鈥渁dequate public facilities鈥� includes certain transportation improvements, or at what point maximum building height is measured, or whether the conditions of approval are justified, issues that may involve extensive briefing and further appeals 鈥� the result may be ruinous to opponents, and the budgets of local governments.

A final bump in the road relates to the legislative haste toward improvident public policy. The legislation offers applicants up to 10 鈥渁djustments鈥� 鈥� i.e., deviations from many (but not all) development standards, such as height, setbacks, parking minimums, and design and improvement requirements, so long as an applicant can certify that it will facilitate housing. Decisions in these cases may only be challenged by applicants, who stand to win attorney fees if they prevail.

The net result of all this is that local governments will likely grant permit approvals in questionable cases and opponents will not take the risk of challenging those decisions, both being intimidated by the prospect of significant losses. Moreover, these outcomes are not limited to cases in which affordable housing is at issue, but to everything that relates to housing in a land use case. It is those living in these design-less, standardless housing that will suffer due to a state policy that is 鈥渋mprovident鈥� 鈥� a more polite term for 鈥渟tupid.鈥�

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at [email protected].

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or [email protected].

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 红桃视频 guarantees the accuracy or completeness of any information published herein.