2019 Legislature and landowner rights

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By Oregon Property Owner Association,

OregonPropertyOwners.org

At long last, the 2019 Oregon Legislature adjourned on June 30.   The session was dominated by big issues – taxes, climate change, rent control, criminal law etc. and cooperation between legislators was almost non-existent.  But despite emotions, high drama, and big issues, a number of land use/property bills were able to get through the legislative process and pass.

“As usual, land use bills flew under the radar,” said Dave Hunnicutt, President of the Oregon Property Owners Association (OPA).  “Land use law in Oregon is complicated, filled with acronyms and jargon that only a few people understand, and isn’t the type of issue that dominates the newspaper or social media headlines.  That means that land use laws aren’t at the top of the list for any legislator.  But that doesn’t mean that changes don’t happen.”

OIA/OPA had a number of successes this session, including:

House Bill 2001:  HB 2001 was the most talked about and controversial land use bill of the session.  The bill allows a property owner in an Oregon city with at least 25,000 residents to remove/remodel a single family dwelling and replace the home with a duplex, triplex, fourplex, cottage cluster (small homes along the edge of the lot with a central courtyard) or townhomes.  If the city population is between 10,000 and 25,000, the property owner is allowed to replace a single family home with a duplex, and the city can allow more.

The bill does not require a homeowner to do anything.  In fact, a homeowner is free to replace an existing single family home with a brand new single family home.  The choice is entirely with the homeowner, not the local government.  For that reason, OIA/OPA supported the bill, as it allows a homeowner to have more flexibility to use the property, not less.

The bill also contains new language making it harder for Metro (the Portland-area regional government), and larger Oregon cities like Eugene, Corvallis, and Salem from overestimating future housing density increases as an excuse for not expanding the city’s urban growth boundary (UGB).  As people continue to move to Oregon’s cities, the demand for housing has skyrocketed.  If cities don’t have enough land to build the needed housing, housing prices go up and become unaffordable for most people.  The new language will make it harder for “no-growth” or “slow-growth” cities to claim density levels that have never and will never occur as a way to refuse to expand the UGB.  This is a win for all Oregonians.

House Bill 3024:  HB 3024 amends the replacement dwelling statute for dwellings in exclusive farm use (EFU) zones, the most common zone for privately-owned rural land in Oregon.   In 2013, OIA led the charge and convinced the legislature to approve significant changes to the replacement dwelling provisions of ORS 215.213 and ORS 215.283.  Prior to 2013, the owner of EFU zoned property could only replace a dwelling that was standing or had recently been destroyed.

The 2013 legislature changed the replacement dwelling law to allow a property owner to replace dwellings that once existed on the property, but had been demolished, had become dilapidated, or had been converted to some other type of use, even if those changes had occurred years ago.  These changes greatly expanded the use of the replacement dwelling provisions to site houses on parcels that had a home at some point in time that had been removed.

Unfortunately, the 2013 law was complicated and ambiguous, and proved to be difficult for property owners and county planners to understand.  In fact, earlier this year, the Oregon Supreme Court issued an opinion interpreting the 2013 law in a case in which each decision maker prior to the Supreme Court had interpreted the 2013 law differently from the previous decision maker.

In short, the 2013 law, while well intentioned and a good law, was confusing and needed to be fixed.

HB 3024 greatly simplifies the 2013 replacement dwelling statute.  Like the 2013 statute, the bill allows a property owner of EFU land to replace a dwelling that had once existed on the property, but is no longer on the property.  But the demonstration that the owner must meet in order to receive approval to replace the dwelling is greatly simplified, and much easier for the owner to meet.  The changes should make it much easier for property owners and county planning offices to understand and apply.

Senate Bill 2:  SB 2 allows ten eastern Oregon counties – Harney, Malheur, Lake, Baker, Grant, Wallowa, Union, Sherman, Gilliam, and Wheeler – to explore alternative economic uses in their rural areas, in the hope of generating potential economic development and diversification for each county.

Unlike cities and counties along the I-5 corridor, where growth pressures have continued for over three decades, eastern Oregon cities and counties have experienced the opposite scenario.  Many eastern Oregon counties have smaller populations today than they did in the mid-1900’s.  Small populations and long distances from major metropolitan areas have led to few of the opportunities in the major growth areas of the US economy.

In every other state, local officials would have the ability to think out of the box and try new and creative ideas to promote growth and opportunity in rural areas.  But in Oregon, our state land use laws, which were conceived in the 1970’s and based on a 1970’s economic development model,  hinder a rural community’s ability to try new and imaginative ideas.  SB 2 starts the process of changing that dynamic and allowing rural Oregon governments to do something different.

Under current law, LCDC prohibits counties from conducting an economic opportunity analysis (EOA) for their rural areas.  An EOA is an important tool that local governments can use to direct resources towards areas and types of development that might bring jobs and growth to the community.

Unfortunately, for rural Oregon, LCDC demands that rural counties stick to two industries – farming/ranching and forestry.  These are great industries and form the backbone for our rural areas.  But as we’ve seen in eastern Oregon, the community cannot survive on ranching alone.  Combining ranching with other industries, like mining, recreation, or energy production is something that each rural county should be allowed to explore, whether that fits in with the desires of western Oregon or not.

House Bill 2844:  This bill allows farmers to build small-scale processing facilities on their farms without having to satisfy local siting standards, like landscaping and parking requirements.

In 1999, OIA led the charge to create Oregon’s first processing bill.  Prior to that time, LCDC prohibited counties from allowing farmers to build processing facilities in exclusive farm use zones.  LCDC believed that farmers should take their crops to town to have them processed, which made little sense to anyone except LCDC, and was largely ignored by the farming community.

The 1999 legislature made it clear that farmers could build facilities to process their own crops, along with crops grown from around the area.  By doing so, the legislature made farming more profitable, and allowed a group of neighbors to build a single facility that they could all share.  What a concept.

Unfortunately, the 1999 bill contained compromise language that gave local governments the authority to impose “siting standards” on processing facilities, without defining what “siting standards” mean.  Recently, a couple of counties have begun demanding that farmers comply with stringent siting standards in order to put processing facilities in their barns.  These standards include landscaping requirements, parking requirements (both cars and bicycles), and ADA accessible facilities.

There is nothing wrong with any of these siting standards if the building being constructed was for a retail business open to the public.  But the buildings in this case are processing facilities used only by farmers for processing their own crops.  They aren’t open to the public.  So why would the county demand they be designed in the same way that a local supermarket is designed?

HB 2844 makes clear that small scale processing facilities (buildings with less than 2,500 square feet of area devoted to processing) do not have to comply with county siting standards.  This is a good win for rural property owners.

Senate Bill 287:  SB 287 allows for the siting of “farm breweries” in exclusive farm use zones.  Current law allows a property owner to create a winery or cidery in an EFU zone, but does not allow for breweries.  SB 287 changes that, and allows Oregon’s craft brewing industry to produce beer using crops grown on the same farm as the brewery.  OIA/OPA worked with Rogue Brewery in Newport to introduce this bill, and it passed with strong bipartisan support.