HomeMy WebLinkAboutAgenda Item - 2021-11-16 - Number 6.2 - Joint Meeting with the Planning Commission on House Bill 2001 6.2
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Subject: Middle Housing Code Advisory Committee (House Bill 2001)
Meeting Date: November 16, 2021 Staff Member: Erik Olson, Senior Planner
(Joint Meeting with Planning
Commission) Department: Planning and Building Services
Report Date: November 4, 2021
Action Required Advisory Board/Commission Recommendation
❑ Motion ❑ Approval
❑ Public Hearing ❑ Denial
❑ Ordinance ❑ None Forwarded
❑ Resolution ❑X Not Applicable
❑ Information Only Comments:
❑X Council Direction
❑ Consent Agenda
Staff Recommendation: n/a
Recommended Language for Motion: n/a
Project/ Issue Relates To: Council Initiative to "Adopt codes that comply with HB 2001 that
are consistent with the community's sense of place, neighborhood character, and livability."
Issue before Council: Provide direction on the next stage of the City's process to adopt code
that complies with HB 2001 and is consistent with the community's sense of place,
neighborhood character, and livability.
❑X Council Goals/Priorities ❑Adopted Master Plan(s) ❑Not Applicable
ISSUE BEFORE COUNCIL
Provide direction to staff on the next stage of the City's process to adopt code that complies
with the minimum requirements for middle housing set forth in House Bill 2001 (HB 2001).
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EXECUTIVE SUMMARY
Consistent with the City Council initiative to, "Adopt codes that comply with HB 2001 that are
consistent with the community's sense of place, neighborhood character, and livability," the
Council appointed an Ad-Hoc Middle Housing Code Advisory Committee (MHCAC, or the
"Committee") to provide high-level policy guidance on key issues related to middle housing
implementation required under HB 2001. Now that the Committee process has concluded, staff
and consultants with Cascadia partners are proceeding with the second and final phase of work
to comply with the bill through further code development, code refinement, and the public
review and adoption of code changes.
HB 2001 requires that we adopt compliant regulations not later than June 30, 2022, or the State
Model Code for Middle Housing would apply directly to the City. Staff is seeking Council
feedback on code concepts recommended by the Committee, as well as direction on two
process-related questions:
1. Whether to pursue code concepts recommended by the Committee that are not required
by the state for compliance with HB 2001. Refinement and testing of some of those
concepts would be necessary, which could make it difficult to complete the State-
required code updates prior to the June 2022 deadline, as discussed in this report.
2. Whether the recently adopted state legislation requiring cities to permit land divisions to
facilitate middle housing ownership opportunities (Senate Bill 458)could complicate the
City's work, and require more time to implement non-mandated concepts such as the
allowance of detached forms of middle housing. Staff recommends that the City adopt
code amendments that are required to comply with SB 458 concurrently with the code
amendments required for compliance with HB 2001, but the Council should consider
whether to pursue non-mandated code amendments under HB 2001, such as the
allowance of detached middle housing, in light of SB 458 requirements.
BACKGROUND
On December 9, 2020, the State of Oregon formally adopted rules intended to implement HB
2001, which provide the roadmap for local governments' compliance with the middle housing
requirements in the bill. Shortly thereafter, staff and consultants with Cascadia Partners
initiated the City's first phase of work to adopt code amendments compliant with the bill.
This process began with a number of opportunities for public engagement in January and
February of this year, including a kickoff meeting, several interviews with neighborhood
association representatives, and a survey that received over 880 responses from Lake Oswego
residents. The Planning Commission also hosted several presentations during this time in order
to learn directly from professionals who were involved in the development of HB 2001 or have
specific expertise related to middle housing.
At a joint meeting held on May 18, 2021, the Council and the Planning Commission received a
presentation outlining initial findings and the work products completed during phase one: a
Neighborhood Character Report with a qualitative analysis of the development patterns,
character and architectural history of Lake Oswego neighborhoods; a Neighborhood Conditions
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Analysis with an analysis of existing neighborhood conditions in Lake Oswego; a Plan and Code
Audit Memo that identifies Comprehensive Plan and Community Development Code (CDC)
sections that should be updated for compliance with HB 2001; and a Middle Housing
Opportunities Report containing recommended concepts and alternatives for amending the
Comprehensive Plan and CDC for middle housing to be compliant with HB 2001. These reports
and other background documents are available on the project web page referenced at the end
of this Council Report.
This presentation was followed by two Planning Commission work sessions on May 24 and June
14, 2021, where the Commission reviewed the phase one findings and refined a work plan for
phase two based on Council direction. At their meeting on June 15, 2021, the Council formally
appointed the Ad-Hoc Middle Housing Code Advisory Committee (MHCAC, or the "Committee")
to provide high-level policy guidance to the Planning Commission for the development of draft
code amendments to comply with HB 2001. See also, Committee Process and
Recommendations, below.
At a joint study session scheduled for November 16, 2021, the Council and Planning
Commission will receive a brief presentation from staff, MHCAC Chair Randy Arthur, and
MHCAC Co-Chair Lisa Strader. This presentation will cover the Committee's process and
recommendations, recently-passed state legislation that requires cities to permit land divisions
to facilitate middle housing ownership opportunities (Senate Bill 458), and a proposed timeline
and work plan for completing the project, including adopting code amendments. This
presentation will be followed by Planning Commission work sessions on December 13, 2021,
and January 10, 2022, focused on the drafting of code amendments that comply with HB 2001
based on Council direction.
DISCUSSION
The following summarizes the MHCAC process and recommendations, code concepts
recommended by the Committee that are not required by the state, recent legislation requiring
cities to allow expedited land divisions to facilitate middle housing ownership opportunities
(Senate Bill 458), and a proposed process for adopting code amendments that comply with HB
2001 by the June 2022 deadline.
Committee Process and Recommendations
The Committee was comprised of a balanced membership of 13 voting members representing a
diverse set of interests, as follows:
• Randy Arthur: Chair, Development Review Commission representative
• Lisa Strader: Co-Chair, Diversity, Equity, and Inclusion Committee representative
• Rachel Verdick: City Council representative (non-voting member)
• Helen Leek: Planning Commission representative (non-voting member)
• Cynthia Johnson: 50+Advisory Board representative
• Larry Snyder: Historic Resources Advisory Board representative
• Stephanie Glazer: Sustainability Advisory Board representative
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• Carole Ockert: Neighborhood Chairs Committee of Lake Oswego representative (1 of 2)
• Robert Ervin: Neighborhood Chairs Committee of Lake Oswego representative (2 of 2)
• Ross Masters: Building Industry Advocate, Crosswater Development
• Samuel Goldberg: Affordable Housing Advocate, Fair Housing Council of Oregon
• Ralph Tahran: Architect, Tahran Architecture & Planning, LLC
• Tam Hixson: Realtor or Real Estate Finance Professional, Windermere Realty
• Todd Prager: At-large member (1 of 2),Todd Prager & Associates, LLC
• Alexandra Byers: At-large member (2 of 2), Parks, Recreation & Natural Resources
Advisory Board
The Committee adopted bylaws that established the roles and responsibilities of Committee
members and staff, including a provision that, "a vote by two-thirds of the members present
and eligible to vote will be required to decide any question."The Committee conducted six
meetings between July and October 2021; materials distributed in advance of each meeting
were also distributed to members of the public, and are accessible on the City website.
Invitations to each meeting were also made available to members of the public, and recordings
of each meeting were posted to the City's YouTube page.
During these meetings, Committee members considered code concepts related to the following
key issues outlined in the MHCAC Key Issues &Work Plan:
1. Preservation of existing residential structures
2. Scale and character of new middle housing
3. Runoff and storm water impacts of middle housing
4. Affordability and accessibility of middle housing
Committee members were provided with a series of memos— referred to as "Key Issue
Memos"—which contained summaries of the above issues and lists of relevant questions for
the group to consider. Polling was conducted by staff at MHCAC meetings in an attempt to
reach an agreement on the questions raised in the Key Issue memos; each memo has since
been updated to include polling results and a summary of the Committee's discussion on each
question /code concept. Staff has also maintained a record of substantive email
communications between MHCAC members and/or staff, as well as comments from members
of the public to the MHCAC.
For a summary of the key issues and discussion of MHCAC recommendations, see Attachment
1.
Code Concepts Not Required for Compliance
The Committee discussed a number of code concepts for middle housing that address the
Council's initiative to pursue code amendments that maintain consistency with, "the
community's sense of place, neighborhood character, and livability." Many of these code
concepts involve modifications to the City's existing siting and design standards for single-family
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housing to better address middle housing and its anticipated impacts. Pursuant to Council
direction, staff plans to incorporate many of these siting and design concepts into the code
amendments that will be considered for adoption prior to the June 30, 2022 deadline.
However, a number of the code concepts that were intended to address the Council's direction
to maintain neighborhood character and livability would have wider applicability, and
amendments to incorporate these broader concepts would not necessarily need to be adopted
concurrently with other code amendments required by June 2022. For example, though the
state does not specifically require that cities allow for the development of detached duplexes,
triplexes, and quadplexes in order to comply with HB 2001, the Committee recommended code
amendments that would permit such detached "plexes" in Lake Oswego.
Code concepts recommended by the Committee that are not technically required under HB
2001 include the following:
• Recommendation 1.a: Revise the definition of"demolition" to include remodels that
remove more than 50%of the exterior walls of the house.
• Recommendation 1.b: Define duplexes, triplexes, and quad-plexes to include detached
units, in addition to attached units.
o Recommendation 2.h: Regulate open space for detached duplexes, triplexes, and
quadplexes in the same manner as for attached "plexes". Open space is assumed
to be in yard setbacks but could also be in common areas between buildings on
the same lot. Do not specify minimum size or location of open space.
o Recommendation 2.i:Allow smaller front or rear yard setbacks of 10-15 feet
(compared to 25 ft/30 ft front/rear) for detached duplexes, triplexes, and
quadplexes, as is allowed for cottage cluster housing.
• Recommendation 3.a: Limit the development of impervious surfaces to mitigate the
impacts of increased density. Currently impervious surface limits apply in only two
neighborhood overlays: Glenmorrie, Lake Grove, and Uplands.
• Recommendation 4.a: Provide financial incentives for middle housing projects that
include a minimum number or percentage of income-restricted affordable units or meet
certain accessibility standards. Currently, financial incentives apply to accessory dwelling
units and multifamily affordable housing projects of 20 or more units.
o Recommendation 4.a.i: Revise the City's current SDC exemption policy so that it
applies to middle housing developments that provide a minimum percentage of
income-restricted affordable units or meet certain accessibility standards.
o Recommendation 4.a.ii: Provide property tax exemptions for middle housing
developments that provide a minimum percentage of income-restricted
affordable units or meet certain accessibility standards.
See Attachment 1 for a more in-depth discussion of code concepts listed above.
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Senate Bill 458
In May of 2021, the Oregon legislature adopted Senate Bill 458 (or "SB 458") as a follow-up to
HB 2001 in order to facilitate lot divisions for middle housing that enable units to be sold or
owned individually (see Attachment 2). As stated in Attachment 3, "For any city or county
subject to the requirements of House Bill 2001, Senate Bill 458 requires those jurisdictions to
allow middle housing lot divisions for any HB 2001 middle housing type (duplexes, triplexes,
quadplexes, townhouses, and cottage clusters)" built pursuant to the state's minimum
requirements for middle housing (ORS 197.758). SB 458 only applies to land divisions permitted
on or after June 30, 2022, which is the same date as the state's deadline for compliance with HB
2001.
The bill requires that cities process middle housing land division applications using an
"expedited land division" procedure, as long as the application includes a plan that:
• Complies with applicable middle housing land use regulations and the Oregon
Residential Specialty Code;
• Provides separate utilities for each dwelling unit;
• Provides "Easements necessary for utilities, pedestrian access, common use areas or
shared building elements, dedicated driveways/parking, and dedicated common area";
and
• Results in no more than one dwelling unit per each resulting lot or parcel.
The bill is intended to facilitate land divisions for middle housing where the original or "parent"
lot complies with applicable middle housing requirements, in order to make dwelling units in
middle housing developments available for individual ownership. This is primarily intended to
address the difficulty of making middle housing units available for ownership currently, given
that ownership models such as condominiums typically have additional costs associated with
insurance and maintenance, including homeowners associations, as compared to dwellings on
individual lots.
Unlike other partition or subdivision processes contained within the City's code currently, land
divisions to facilitate middle housing would not always accompany an increase in the density
permitted on a given lot or parcel. Because HB 2001 requires that cities allow an increased
number of dwelling units on parcels that meet minimum lot requirements regardless, land
division applications are not necessary to develop middle housing with up to four units on
parcels currently zoned for single-family residential use.
As outlined in Attachment 3, cities will, "retain the ability to require or condition certain things,
including further division limitations, street frontage improvements, and right-of-way
dedication if the original parcel did not make such dedications." However, cities are not allowed
to apply approval criteria beyond those provided in SB 458 (Attachment 2); this means that the
City could not require additional driveways, vehicle access, parking, minimum or maximum
street frontage, or other requirements inconsistent with HB 2001. Staff notes that, while SB 458
does limit the ability for cities to condition or require such elements, compliance with all
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applicable middle housing regulations—including those related to vehicular access, parking,
frontage width, etc.—would still need to be demonstrated on the "parent" lot prior to a middle
housing land division.
Updated Phase 2 Work Plan
Staff has drafted an updated work plan for the final stages of the City's work to comply with HB
2001 (Attachment 4) outlining next steps to develop the MHCAC's recommendations into code
language for Planning Commission review and eventual adoption by City Council.
Multiple Planning Commission work sessions are proposed in order to prepare draft code
amendments, as well as another "check-in" with the City Council prior to draft code
amendments going to a public hearing. These meetings will provide the Council with several
opportunities to refine policy direction relevant to the implementation of middle housing, and
will allow the Planning Commission to receive more updated guidance from City Council prior to
staff finalizing the proposed code amendments for a public hearing. The work plan also includes
opportunities for public engagement, including two "community forum" events and ongoing
opportunities for neighborhood associations to request meetings with City staff to answer
questions or present to their members.
The first of these community forums is tentatively scheduled to be held virtually on December
9, 2021 at 6:30 PM. An online tool is being developed for the public to provide input on middle
housing code concepts if they are unable to attend or want to provide input following the
event.
RECOMMENDATIONS
With respect to the question of how to prioritize code concepts not required by the state for
compliance with HB 2001, staff recommends that the City conduct economic feasibility testing
to further explore MHCAC Recommendation 3.a, "Limit the development of impervious
surfaces to mitigate the impacts of increased density." This will allow the Planning Commission
to make a more fully-considered and informed decision regarding whether to apply impervious
surface limitations in all single-family residential zones, while allowing for further exploration of
concerns identified by the Committee that such regulations could make middle housing
development less feasible.
Staff recommends that other code concepts not required to be adopted by the state-mandated
deadline of June 30, 2022 be explored at a later date in order to more fully assess their
potential impacts. Recommendations related to affordability and accessibility of middle
housing would be most appropriate to consider when the City updates its Housing Needs
Analysis and develops housing production strategies pursuant to House Bill 2003; staff
anticipates that the City will begin to conduct this work in mid-2022.
Due to workload-related concerns, staff recommends considering code concepts that would
modify the definition of"demolition"to be more inclusive of significant structural removal
(1.a) at a later date, due to the potential impact on the City's demolition tax, and the effect
these changes could have on development of other types of housing. Staff also recommends
considering code changes that would permit the construction of detached "plexes" (1.b, 2.h.
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2.i) at a later date, after HB 2001-compliant code amendments have been adopted by the City.
This would help ensure that the City meets the State-mandated deadline for HB 2001
compliance and provide more time for the additional research and analysis required by DLCD to
demonstrate that these concepts do not result in "unreasonable cost or delay" to the
development of middle housing, as both concepts would only be permitted through DLCD's
"alternative track" process.
Finally, staff recommends adopting code amendments that comply with the middle housing
land division requirements of SB 458 concurrently with other code amendments required
under HB 2001. Guidance provided by DLCD indicates that, if a City were not to incorporate
middle housing lot division standards into their development code by the June 30, 2022
deadline, the City would instead be required to directly apply the bill's language in order to
process SB 458 middle housing land division applications. Staff suggests that amending the City
code to incorporate SB 458 land divisions would be a more straightforward and less
administratively-cumbersome way to comply with the bill.
ATTACHMENTS
1. MHCAC Key Issues Summary Memo, 11/02/2021
2. Enrolled Senate Bill 458, 5/17/2021
3. DLCD Senate Bill 458 Guidance, 7/8/2021
4. Revised Phase Two Project Timeline, 11/2/2021
BACKGROUND MATERIAL AND REFERENCES
Use the link below to visit the City's HB 2001 "Project" webpage, which contains links to
background materials and references mentioned above.
https://www.ci.oswego.or.us/house-bills-2001-and-2003
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.lakeoswego.city
ATTACHMENT 1
2021 Middle Housing Code Advisory Committee tiA F
Key Issues Summary Memo
Preliminary draft on October 7, 2021 ~' AM V �- O
Final update November 3, 2021
OREGO�
KEY ISSUES
1. Preservation of existing residential structures
2. Scale and character of new middle housing
3. Runoff and storm water impacts of middle housing
4. Affordability and accessibility of middle housing
1. PRESERVATION OF EXISTING RESIDENTIAL STRUCTURES
Members of the City Council and Planning Commission expressed concern that permitting middle housing
in Lake Oswego could increase the rate of demolitions of existing residential structures, including existing
naturally-occurring affordable (or relatively-affordable) housing. The Middle Housing Code Advisory
Committee (the "Committee") was provided with direction to explore potential incentives to encourage
conversions or additions that create middle housing (as an alternative to demolitions) in order to
promote the preservation of existing buildings.
Committee discussion surrounding this topic indicated over 2/3 support'for the following code concepts:
a. Revise the definition of"demolition" to include remodels that remove more than 50%of the
exterior walls of the house.
Members felt that this recommendation would help to prevent builders from pursuing projects
that almost completely demolish an existing structure while still being considered a "remodel"
under the current definition of"demolition". Under this current definition, a builder is able to
demolish all but just one wall of an existing structure while not being required to classify the
project as a "demolition", thus allowing builders to maintain nonconforming setbacks and lot
coverage and avoid the City's recently-adopted $15,000 per dwelling-unit tax on residential
demolitions. Changing the definition of"demolition" could encourage remodel projects that
preserve more of the existing structure than under the current definition, while also working to
disincentive demolitions of existing residences. Any revisions to the definition of demolition would
'The bylaws adopted by the MHCAC require a vote by two-thirds of the members present and eligible to vote to decide any
question.
Middle Housing Code Advisory Committee Key Issues Summary Memo Page 1 of 14
PP 19-0008 Attachment 1/Page 1 of 14
have broad applicability and would not just apply to middle housing, so further analysis would
required to test the feasibility of any proposed changes.
Though there was support for modifying the definition of "demolition" among many Committee
members, one member expressed concern that this approach could result in adverse impacts on
existing neighborhood character and recommended waiving the demolition tax for middle housing
projects. Another member suggested a requirement that a reasonable opportunity be provided to
a representative from the Historic Resources Advisory board to thoroughly photograph the
interior and exterior of any structure that had been listed on the National Register of Historic
Places or local Lake Oswego historic landmark designation list prior to its demolition.
Next steps: Work with the Planning Commission to further consider concepts for how
nonconforming development is defined and whether demolition tax applicability should be
changed, particularly with respect to the threshold that must be reached in order for the project
to qualify as a "demolition" (as compared to a remodel). Conduct feasibility testing and determine
the extent of the impact this definitional change would have on existing City policies related to
demolition and on development trends more broadly.
b. Define duplexes, triplexes, and quad-plexes to include detached units, in addition to attached
units.
While some Committee members questioned the likely effectiveness of preserving existing houses
by allowing for detached forms of duplexes, triplexes, and quadplexes, members were generally
supportive of detached "plexes" even in cases where an existing house is not preserved. Members
stated that they supported detached "plexes" because they could allow additional flexibility for
middle housing developments to better respond to topographical constraints, and because they
could potentially result in more accessible dwelling units that would be more conducive to multi-
generational living. There was general interest in exploring the question of detached "plexes" in
further detail, particularly whether the City would only allow detached versions of certain types of
"plexes" (for instance, allow detached duplexes but not detached triplexes or quadplexes).
Committee members expressed particular concerns regarding the specifics of how detached
duplex, triplex, and quadplex units would be regulated. Some members were concerned that it
may be difficult to craft regulations for detached "plexes" that both comply with state
requirements and result in a positive design outcome. For instance, one member noted that
detached duplex, triplex, or quadplex developments would not be subject to the same standards
that could be applied to cottage cluster developments, which are similar in concept to detached
plexes but include different dimensional and design standards that are more appropriate for
detached forms of middle housing. Another Committee member noted that, while the flexibility to
construct detached units could produce a more positive design outcome, dimensional and design
regulations should be further refined for both detached and attached middle housing
developments in order to mitigate potential negative impacts on adjacent neighbors— particularly
those related to access lanes constructed near adjacent properties.
Middle Housing Code Advisory Committee Key Issues Summary Memo Page 2 of 14
PP 19-0008 Attachment 1/Page 2 of 14
Following this discussion, new information was provided by the Oregon Department of Land
Conservation and Development (DLCD) clarifying that detached "plex" forms of middle housing
must be treated similarly to other middle housing required under Division 46. This means that the
City could only apply more refined siting and design standards to detached "plex" developments
through an alternative track, as opposed to the minimum standards, which would require that the
City conduct more extensive analysis to prove that these standards do not create "unreasonable
cost or delay". Considering that cities are not required under Division 46 to allow detached "plex"
developments in the first place, a representative from DLCD informally stated that it was
reasonable to assume that applying different siting and design standards for detached "plexes"
would not be expected to create such cost or delay.
Code concepts were further explored at MHCAC Meeting#6 to address design and compatibility
issues that may arise if detached "plexes" are permitted. See the Detached
Duplex/Triplex/Quadplex discussion in the Remaining Issues Memo (last updated on October 25,
2021) and the Scale and Character of New Middle Housing section, below, for more discussion
and next steps related to detached plex regulations.
The Committee did not reach a clear consensus on other questions related to this topic, though half of the
Committee did express support for a code concept that could preserve existing housing through the
adoption of incentives to encourage conversions of or additions to single family dwellings (SFD) that create
middle housing. The Committee also expressed 50% support for a code concept to not require that
conversions of or additions to existing SFDs that create middle housing be consistent with the style and
architecture of the existing structure.
For a more in-depth review of the Committee's consideration of these issues, please refer to Key Issue#1
Memo: Preservation of Existing Homes (last updated on October 26, 2021).
2. SCALE AND CHARACTER OF NEW MIDDLE HOUSING
The City Council has directed staff to pursue the minimum compliance standards of Division 46, which
generally require that cities apply the same or less restrictive dimensional standards (or "siting standards"
in terms used in the state rules) to middle housing as apply to single-family housing. For Lake Oswego,
dimensional standards include setbacks, height, setback planes, lot coverage, floor area ratio, and other
requirements associated with utilities and public facilities.
The Council also directed staff to apply the City's existing design standards to middle housing, with a
suggestion to add new clear and objective standards that comply with state rules for middle housing in
order to maintain consistency with existing homes and neighborhood character, as appropriate. In Lake
Oswego, existing design standards regulate different form-based attributes of buildings, including garage
appearance, long wall planes, roof projections, and in some zones, front porch, roof pitch, and other
features. Under this direction, the City can regulate design features to ensure that middle housing has a
scale and character that is consistent with existing homes or neighborhood character—as long as the
same design standards that apply to middle housing also apply to single-family housing. These design
Middle Housing Code Advisory Committee Key Issues Summary Memo Page 3 of 14
PP 19-0008 Attachment 1/Page 3 of 14
standards must scale with form-based attributes of the site or building, not with the number of dwelling
units.
Committee discussion on this issue indicated over 2/3 support for the following code concepts:
a. Apply existing bulk and massing standards (or "dimensional" standards)for single-family
housing to middle housing.
Members generally felt that the current building envelopes in the Code were appropriate for the
scale and character of the City. Some expressed concern that decreasing or "tightening" the
building envelope could make it overly cumbersome to construct certain forms of middle housing
(and may not comply with state regulations), while others were concerned that increasing or
"loosening" the building envelope could increase the bulk or cost of single-family dwellings.
Next steps: Work with the Planning Commission to further refine and develop this concept into
recommended code language.
b. Do not limit building width beyond existing setback regulations.
Members expressed concern that building width limitations could produce undesirable design
outcomes, with one member noting that some of the more desirable examples of middle housing
would likely not comply with stringent building width limitations. One member also expressed
concern that building width limitations could inadvertently encourage taller housing
developments that may be less accessible to residents with a disability.
Though members were clear that they did not support limiting building frontage width to a
specific length or distance, some expressed support for a limitation on building width tied to a set
proportion or percentage of the width of the overall lot. One member expressed concerns that, in
conditions where lots are consolidated or larger than the minimum lot size, side setbacks alone
may not adequately maintain building width, form, and massing patterns characteristic of that
neighborhood. Members generally agreed that, though the "street side" of a development is
certainly an important component of the design, it may be even more important to consider the
potential impacts of middle housing development on abutting properties.
Code concepts were further explored at MHCAC Meeting#6 to address concerns that wide or
uninterrupted building facades may negatively impact neighborhood character. However,
following that discussion, the Committee did not opt to recommend any additional building width
or façade articulation standards—consistent with their direction on the original question. See the
discussion on Building Width and Facade Articulation in the Remaining Issues Memo (last
updated on October 25, 2021) for more.
Code concepts were also further explored at MHCAC Meeting#6 that would address the potential
impact of activity in side and rear yards on neighboring residents. See the discussion on Screening
and Buffering in the Remaining Issues Memo (last updated on October 25, 2021) for more.
Middle Housing Code Advisory Committee Key Issues Summary Memo Page 4 of 14
PP 19-0008 Attachment 1/Page 4 of 14
Next steps:Work with the Planning Commission to further refine and develop this concept into
recommended code language.
c. Enhance existing single-family garage appearance standards to better address the negative
visual impacts of front-facing garages and driveways.
Members agreed that existing garage appearance standards should be updated to address the
potential implications of middle housing, a recommendation that would also address concerns
that were identified more broadly by the community in the Neighborhood Character Survey
results regarding front-facing garages and driveways.
Members expressed differing views on the benefits or drawbacks of streets containing many
garages and curb cuts, with some members concerned that more driveways and curb cuts could
reduce the availability of on-street parking, and others concerned that more on-street parking
could produce an unsafe pedestrian environment by limiting visibility. One member pointed out
that some garage design standards may impact accessibility for individuals with a disability, and
that garages and driveways when designed appropriately can help provide ADA-compliant access
to the street.
Next steps: Work with the Planning Commission to further refine and develop this concept into
recommended code language.
d. Apply existing single-family housing design standards for driveways and garages to townhouses.
The polling question presented to the Committee on this subject allowed members to select
options that would indicate full support of the concept to apply existing single-family housing
design standards for driveways and garages to townhouses, and another option that would
indicate support for the concept while still expressing concerns about the potential negative
impacts of wide garages and driveways. Though less than 2/3 of the Committee voted in support
of this specific concept with no caveats (64%), staff has included this recommendation because an
additional 27%of members were also tentatively in support of the concept while concurrently
expressing concerns that the existing single-family housing design standards could result in wider
and more visually-dominant garages and driveways for townhouse developments. Taken in
combination, there is a clear trend that the Committee did not support applying DLCD Model Code
standards for driveways and garages to townhouses or other middle housing types, as less than
10% of Committee members voted for the other polling options that would apply DLCD Model
Code Standards to townhouses.
During the discussion it was mentioned that, under the DLCD Model Code Standards, garages
could occupy a greater percentage than currently allowed under the development code (60%) on
townhouses with street frontages of less than 20 feet. Staff reminded Committee members that,
while the regulations in the Model Code may be less restrictive for buildings with a frontage width
of less than 20 feet, the Model Code would be more restrictive for buildings with a frontage width
of over 20 feet. Some Committee members expressed concern about challenges that could
emerge for those with different accessibility needs if the City were to further limit driveway and
Middle Housing Code Advisory Committee Key Issues Summary Memo Page 5 of 14
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garage space. Other members expressed that, while they felt it was important to address concerns
related to the visual impact of driveways and garages, they were concerned that these limitations
could negatively impact the feasibility of developing townhouse units.
Next steps:Work with the Planning Commission to further refine and develop this concept into
recommended code language, while also addressing the potential negative visual impacts of wide
garages and driveways.
e. If landscaping is required for all new single-family and middle housing developments, include
tree canopy requirements.
Though the Committee was split on the question of whether landscaping should be required for all
new single-family and middle housing developments, there was consensus that—if such
requirements are instituted —they should take the form of requirements for a certain percentage
of the lot to be covered by tree canopy. Staff notes that there was significant consensus on this
issue amongst the group, as 90%of voting-eligible Committee members supported the concept of
landscaping taking the form of a tree-canopy standard, if required. This option received more
support than other code concepts that would define landscaping to include other elements, such
as front yard or foundation landscaping.
Next steps:Seek City Council direction on whether to regulate tree canopy under the Development
Code (apart from the City's sensitive lands regulations). Subject to Council direction, work with the
Planning Commission to refine and develop this concept into recommended code language.
f. Limit the size of units within a cottage cluster.
Although there was no clear consensus as to a specific recommended size, Committee members
supported limiting the size of cottage cluster units in order to maintain consistency with existing
neighborhood scale and character, and, indirectly, to promote housing affordability. Members
expressed concerns that developers would be prone to maximize the square footage of individual
cottage units if the City allows for those larger units. One member also expressed concerns related
to accessibility, stating a preference for more square footage to be located on the ground floor of
cottage cluster units when possible.
Next steps:Work with the Planning Commission to further refine code concepts for how to limit
the size of units within a cottage cluster, and develop these concepts into recommended code
language. Coordinate these code concepts with the concepts for detached forms of middle
housing.
g. Apply any design standard that applies to single-family housing to cottage cluster housing, as
long as the standard does not conflict with the DLCD Model Code.
While some members cautioned that the City should not be overly prescriptive with architectural
style, form, or other design requirements, some also noted that designers are capable of
responding to complex or prescriptive design standards, including specifications for modern or
innovative buildings designs.
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Next steps:Work with the Planning Commission to further refine and develop this concept into
recommended code language.
h. Regulate open space for detached duplexes, triplexes, and quadplexes in the same manner as
for attached "plexes". Open space is assumed to be in yard setbacks. Do not specify minimum
size or location of open space.
The Committee was not supportive of additional open space or courtyard requirements for
detached duplexes, triplexes, or quadplexes, which would align the requirements for detached
plex developments more with the requirements for cottage cluster developments. One member
expressed concerns that any requirements for the size or location of open space could work
against the purpose of allowing detached plexes to begin with —which this person felt was to offer
additional flexibility for property owners to add middle housing units to a given site.
While there was general support to provide additional flexibility for detached plex developments,
some members also felt strongly that building entrances should still be required to face either a
street or open space. Staff was able to clarify that the entrance requirements for attached plex
units—which include requirements that entrances face either open space or the adjacent street—
could also be applied to detached units (similar to cottage clusters).
Next steps: Work with the Planning Commission to further refine and develop this concept into
recommended code language.
i. Allow smaller front or rear yard setbacks of 10-15 feet for detached duplexes, triplexes, and
quadplexes, as is allowed for cottage cluster housing.
Committee members agreed with the concept of providing more flexibility for the layout of a
detached plex site by allowing for reduced front or rear yard setbacks for such developments.
Members expressed support for this concept in part because the setback reduction would provide
additional flexibility to facilitate the construction of detached plex units, and in part because such
reduced setbacks could produce larger and more usable open spaces to accompany such units.
However, other Committee members expressed concerns that allowing for reduced setbacks could
produce a negative impact on neighborhood character. One member stated that— because of the
results of the previous question —the reduced setbacks would not be accompanied by open space
requirements, and was concerned that developers may simply choose to maximize their building
envelope and not provide additional open space. Staff clarified that there are numerous other
mechanisms within the code intended to control the bulk and massing of buildings, such as lot
coverage and floor area, and that these would continue to apply in a way that ensures that the
additional space allowed for the setback would not actually permit a larger building envelope/
mass than would be permitted for a single-family dwelling or other types of middle housing.
Next steps: Work with the Planning Commission to further refine and develop this concept into
recommended code language.
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Other Concepts Considered
Though the Committee did not reach a clear 2/3 consensus on other questions related to the scale and
character of new middle housing, a majority of members expressed support for the following code
concepts:
• Create new standards to regulate the design and orientation of entrances for both middle housing
and single-family housing, though the details require further discussion.
• If landscaping is required for all new single-family and middle housing developments, include front
yard landscaping requirements.
• Require landscape screening when a garage or parking lot faces a side or rear lot line.
• Do not require additional design standards relating to façade and entry elements for single-family
and middle housing
The Committee was more divided on polling questions related to landscaping requirements, with a 40%
plurality of members voting for the City to institute landscaping requirements based on a percentage of
lot area. Members questioned how the City would define "landscaping," pointing out that requiring more
grass, for instance, might not necessarily result in positive environmental outcomes. Members were
supportive of native, drought-resistant landscaping as well as a healthy tree canopy, stressing the
importance of conserving water for the future through drought-tolerant plantings. Members
acknowledged that some strategies intended to enhance aesthetics through landscaping may have
unintended consequences for other important goals related to sustainability and resiliency in the face of
climate change. One member cautioned that front-yard landscaping requirements could preclude more
modern or minimalist landscape design approaches intended to highlight architectural form, and felt that
it was more important for landscaping to be used to soften visual impacts on neighbors to the side of a
proposed development than for curb appeal. Another stated concerns that "foundation plantings" could
lead to increased risk of fire damage, as deciduous plantings located near buildings could have the
unintended consequence of spreading fire adjacent to the primary structure. Staff notes there could also
be administrative and enforcement challenges with implementing some of these concepts.
For a more in-depth review of the Committee's consideration of these issues, please refer to Key Issue#2
Memo, pt. 1: Scale and Character of Duplexes,Triplexes, and Quadplexes (last updated on October 26,
2021), Key Issue#2 Memo, pt. 2: Scale and Character of Townhouses and Cottage Clusters (last updated
on September 22, 2021), and the Remaining Issues Memo (last updated on October 26, 2021).
3. RUNOFF AND STORMWATER IMPACTS OF NEW MIDDLE HOUSING
As densities increase with middle housing we anticipate removal of more landscaping and trees to make
way for more driveways, patios, and other features, unless the City limits development of these features.
Middle Housing Code Advisory Committee Key Issues Summary Memo Page 9 of 14
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The Committee was provided with direction to explore potential limitations on the development of
impervious surfaces for middle housing and single-family homes.
When considering the polling results as a whole, there is a clear trend that the Committee was interested
in further exploring the following code concept:
a. Limit the development of impervious surfaces to mitigate the impacts of increased density.
The polling question presented to the Committee on this subject allowed members to select an
option that would indicate full support of the concept to limit the development of impervious
surfaces for both single-family and middle housing development, as well as another option that
would indicate support for the concept while still expressing concerns related to the impact of
these requirements on development feasibility. Though just —44% of the Committee voted in
support of this specific concept with no added caveats or qualifiers, staff has included this
recommendation because an additional "44% of members were also tentatively in support of the
concept while concurrently expressing concerns that the impervious surface limitations could
make it less feasible to develop middle housing. Taken in combination, there is a clear trend that
the Committee was interested in further exploring impervious surface limitations, as only—11% of
Committee members voted for the other polling option not to apply limitations on impervious
surfaces.
The Committee also received a comment from a member of the public that supported impervious
surface limitations. Despite general support for the concept, Committee members were interested
in the specifics of what would be considered a pervious or impervious surface under the code,
with one member stating that the use of"pervious" pavers in driveways was not desirable.
Another member expressed concern that impervious surface limitations could impact accessibility
for individuals with a disability, as impervious surface limitations could disincentive the use of
accessible pathways, ramps, or other features that would improve accessibility. Staff responded
that it would be appropriate to conduct a feasibility analysis to determine the extent to which an
impervious surface requirement could impact the ability to develop accessible middle housing
units, in order to better "calibrate" the proposed requirement.
Another member expressed concern that percentage-based impervious surface limitations could
disproportionately impact development feasibility on smaller lots, but thought that the
percentage-based requirements may be more appropriate on larger lots. Staff responded that this
issue could be explored when conducting a feasibility study, and that it may be appropriate to
"calibrate" required impervious surface requirements based on lot size. There was also some
discussion of specific site conditions that may further necessitate impervious surface limits, such
as steeply-sloped sites or sites containing soils that do not drain well. While some members felt
that impervious surface limitations would be most appropriate for sites with these types of
conditions, others felt that such limitations are needed on a City-wide basis. Members also
discussed the utility of larger trees in absorbing stormwater on-site, with one member suggesting
that retaining significant trees should be a component of the City's strategy related to impervious
surfaces.
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Next steps:Seek City Council direction on whether to limit development of impervious surfaces to
mitigate impacts of increased density. Subject to Council direction, conduct feasibility testing in
order to calibrate/develop a more specific recommendation related to impervious surface
limitations. As applicable, work with the Planning Commission to refine this concept into code
language.
For a more in-depth review of the Committee's consideration of these issues, please refer to Key Issue#3
Memo: Stormwater (last updated on October 26, 2021).
4. AFFORDABILITY AND ACCESSIBILITY OF NEW MIDDLE HOUSING
City Council directed the Committee to recommend approaches to encourage middle housing developed
under HB 2001 to meet the specific housing needs of the community. The two primary needs that have
been identified are for units that are affordable to lower or moderate-income households (defined as
families earning 80% or less of area median income) and for units that are accessible for people with
disabilities, older individuals, or others who otherwise have needs that may not be met by current
housing options.
Committee discussion on this issue indicated over 2/3 support for the following code concepts:
a. Provide financial incentives for middle housing projects that include a minimum number or
percentage of income-restricted affordable units or meet certain accessibility standards.
Committee members expressed support for producing affordable housing consistent with City
Council goals, with some members stating that the City should also attempt to promote housing
for people of color or more diverse residents in order to redress the history of racist exclusionary
housing practices in Lake Oswego. One member noted that similar forms of discrimination
continue to this day, even though they are technically illegal. Other members responded by
agreeing with the sentiment that past discrimination should be addressed, but urged caution given
the history of fair housing-related legal issues that have emerged when cities attempt to provide
housing preference to individuals based on race or other types of legal status protected under the
federal Fair Housing Act and Oregon's fair housing statutes. Several members agreed that, even
though there may be legal implications for some strategies that would target more diverse
residents, the concept was worth exploring further given that other strategies to promote
diversity may not have the same legal risk.
Though there was general support for providing financial incentives for accessible middle housing
units, some Committee members stressed the importance of determining which specific
accessibility standard would be incentivized. Other members noted that there are several different
standards for accessibility that the City could incentivize, noting that there is no single accessibility
standard utilized by builders given their desire for flexibility. See the discussion below for more
discussion on the specific types of financial incentives recommended by the Committee.
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i. Revise the City's current SDC exemption policy so that it applies to middle housing
developments that provide a minimum percentage of income-restricted affordable units
or meet certain accessibility standards.
Planning staff noted that the City's existing SDC exemption policy for ADUs has had a
measurable impact on increasing their development, with the construction of ADUs
doubling in volume after SDC exemptions began to be offered. While members supported
the concept of SDC exemptions for affordable or accessible middle housing, they also
agreed that there should be a limit to the number of units that could be exempted from
SDCs or property taxes. For example, one member suggested that the first unit on a lot
would be subject to full SDCs while fees for additional middle housing units might be
exempt from or have reduced SDCs. Staff indicated that this approach could be similar to
the existing fee waiver for ADUs, which because of their small size are assumed to have a
de minimis impact on City infrastructure.
Some members expressed concern about making up for any revenue lost through SDC or
property exemptions, stating that City infrastructure could deteriorate without sufficient
funding. Other members countered that municipalities are able to set budgetary priorities
depending on policy direction and that budgetary allocation was not within the purview of
the Committee. One member noted that, if the City had concerns about maintaining
enough funds to offset potential SDC exemptions, SDC deferrals (require payment at time
of occupancy instead of at issuance of building permit) could be another short-term option.
Staff clarified that any proposal for financial incentives that would be presented to Council
would need to include an assessment of the budgetary impact of the policy as well as
alternative approaches, including potential offsets for any lost revenue through other
budgetary sources.
Next steps:Work with the City Council and Planning Commission to further refine code
concepts for SDC exemptions to incentivize affordable or accessible middle housing.
ii. Provide property tax exemptions for middle housing developments that provide a
minimum percentage of income-restricted affordable units or meet certain accessibility
standards.
Committee members asked clarifying questions about how property tax exemptions would
apply to owner-occupied affordable or accessible units, with staff noting that deed
restrictions related to owner-occupied housing are feasible but function differently than
for rental housing. One Committee member expressed interest in potentially exploring a
"community land trust" model within Lake Oswego in order to ensure the continued
availability of homeownership opportunities related to affordable housing. It should be
noted that the City currently does not offer property tax exemptions for affordable housing
except as required by state law.
Next steps:Work with the City Council and Planning Commission to further refine code
concepts for property exemptions to incentivize affordable or accessible middle housing.
Middle Housing Code Advisory Committee Key Issues Summary Memo Page 12 of 14
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b. Do not provide regulatory incentives for middle housing developments that include affordable
and/or accessible units.
Committee members voiced concern that adjacent neighbors would bear the burden of regulatory
incentives that increase bulk, add density, or eliminate parking requirements, and that loosening
these zoning requirements could diminish many of the characteristics that residents stated that
they valued about their neighborhood during the Neighborhood Character Survey conducted
earlier this year. Members also expressed concerns that regulatory incentives could produce less-
desirable housing than would be produced otherwise, with members noting that low-income
residents should be offered the same quality of housing that would be offered with market-rate
housing.
Next steps: Convey this recommendation to the City Council and Planning Commission.
Though the Committee did not reach a clear 2/3 consensus, a majority of members expressed support for
the City to institute a Construction Excise Tax (CET) to help fund affordable housing incentives and
programs. Some members expressed concern that CETs would increase the cost of construction in Lake
Oswego, with one member stating that the burden of funding affordable housing should not be placed
upon homebuilders. Other members countered by stating that a CET could actually encourage builders of
affordable housing to work in Lake Oswego by showing that the City values equity and inclusion, and that
this added value could make this type of housing more viable or desirable from a builder's perspective.
Staff notes that there will likely be another opportunity to discuss the concept of CETs when the City
proceeds to update its Housing Needs Analysis and develop a Housing Production Strategy (per House Bill
2003) in coming years.
For a more in-depth review of the Committee's consideration of these issues, please refer to Key Issue#4
Memo: Affordability&Accessibility (last updated on October 7, 2021).
ISSUES OUTSIDE OF ORIGINAL COMMITTEE SCOPE
During the course of the Committee's discussion, some comments and ideas emerged that were not able
to be addressed within the scope of the Committee's work. These additional issues are documented
below:
• Equitable Housing and Racial Justice: One or more Committee members stated that the City
should go beyond incenting affordable or accessible units by looking at strategies that would
specifically redress the history of racist exclusionary housing practices in Lake Oswego. While
some members posed the idea that new housing units could be targeted to people of color or
more diverse residents, other members urged caution given the history of fair housing-related
legal issues that have emerged when cities attempt to provide housing preference to individuals
based on race or other types of legal status protected under the federal Fair Housing Act and
Oregon's fair housing statutes. Some members agreed that, even though there may be legal
implications for some strategies to target more diverse residents, the concept was worth exploring
Middle Housing Code Advisory Committee Key Issues Summary Memo Page 13 of 14
PP 19-0008 Attachment 1/Page 13 of 14
further given that other strategies to promote diversity within the city may not have the same
legal risk.
• Senate Bill 458: Shortly before the Committee's first meeting, Senate Bill 458 was adopted by the
Oregon Legislature. The bill requires jurisdictions subject to the requirements of HB 2001 to allow
lot divisions for any type of middle housing allowed pursuant to HB 2001 through an "expedited
land division process." The bill also sets forth a series of parameters on how a city must process
middle housing lot division applications. Committee members posed many questions about how
Senate Bill 458 would impact their decisions, and whether allowing for such expedited land
divisions would make it possible not to comply with other requirements under consideration.
While staff responded that, generally speaking, they did not see any provisions in SB 458 that
would conflict with the direction already provided by the Committee, it will be necessary to
discuss the implications of the bill more thoroughly through the public process and seek direction
from City Council regarding how to respond.
• Stormwater requirements: While discussing potential recommendations related to impervious
surface limitations, some members expressed concern that the City's existing Stormwater Code
may not be sufficient to accommodate the potential increase in runoff that could result from new
middle housing development.
• Access and connectivity: One Committee member expressed a desire to explore design standards
that would encourage pathways, driveways, and access lanes for middle housing that connect to
one another, where practicable.
• Land use restrictions for garages: One Committee member expressed an interest in restricting the
use of garages to parking only, thus prohibiting the use of garages for storage or other purposes
that could result in the need for more on-street parking. City legal staff examined this issue and
expressed concerns about the difficulty of enforcing such a restriction, as well as concerns that this
restriction could conflict with previously-enacted City policies related to garages.
• Garbage and recycling bins: One Committee member suggested that the City explore strategies to
require or incentivize the screening of garbage, recycling, and compost bins.
• Moratorium on tree removal: One member of the public suggested that, in order to improve the
on-site absorption of stormwater runoff, the City should institute a moratorium on the removal of
any tree above 15 inches in diameter.
Middle Housing Code Advisory Committee Key Issues Summary Memo Page 14 of 14
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ATTACHMENT 2
81st OREGON LEGISLATIVE ASSEMBLY--2021 Regular Session
Enrolled
Senate Bill 458
Sponsored by Senators FREDERICK, KNOPP; Senators GOLDEN, HANSELL, KENNEMER,
PATTERSON, Representatives DEXTER, FAHEY, HUDSON, KROPF, LEIF, MEEK,
MOORE-GREEN, NOBLE, SMITH DB, WRIGHT, ZIKA (at the request of Habitat for Humanity)
(Presession filed.)
CHAPTER
AN ACT
Relating to land division for residential development; creating new provisions; and amending ORS
93.277, 94.775, 94.776, 197.365, 197.370, 197.375 and 197.380.
Be It Enacted by the People of the State of Oregon:
SECTION 1. Section 2 of this 2021 Act is added to and made a part of ORS 92.010 to
92.192.
SECTION 2. (1) As used in this section, "middle housing land division" means a partition
or subdivision of a lot or parcel on which the development of middle housing is allowed under
ORS 197.758 (2) or (3).
(2) A city or county shall approve a tentative plan for a middle housing land division if
the application includes:
(a) A proposal for development of middle housing in compliance with the Oregon resi-
dential specialty code and land use regulations applicable to the original lot or parcel allowed
under ORS 197.758 (5);
(b) Separate utilities for each dwelling unit;
(c) Proposed easements necessary for each dwelling unit on the plan for:
(A) Locating, accessing, replacing and servicing all utilities;
(B) Pedestrian access from each dwelling unit to a private or public road;
(C) Any common use areas or shared building elements;
(D) Any dedicated driveways or parking; and
(E) Any dedicated common area;
(d) Exactly one dwelling unit on each resulting lot or parcel, except for lots, parcels or
tracts used as common areas; and
(e) Evidence demonstrating how buildings or structures on a resulting lot or parcel will
comply with applicable building codes provisions relating to new property lines and,
notwithstanding the creation of new lots or parcels, how structures or buildings located on
the newly created lots or parcels will comply with the Oregon residential specialty code.
(3) A city or county may add conditions to the approval of a tentative plan for a middle
housing land division to:
(a) Prohibit the further division of the resulting lots or parcels.
(b) Require that a notation appear on the final plat indicating that the approval was given
under this section.
Enrolled Senate Bill 458 (SB 458-A) Page 1
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(4) In reviewing an application for a middle housing land division, a city or county:
(a) Shall apply the procedures under ORS 197.360 to 197.380.
(b) May require street frontage improvements where a resulting lot or parcel abuts the
street consistent with land use regulations implementing ORS 197.758.
(c) May not subject an application to approval criteria except as provided in this section,
including that a lot or parcel require driveways, vehicle access, parking or minimum or
maximum street frontage.
(d) May not subject the application to procedures, ordinances or regulations adopted un-
der ORS 92.044 or 92.046 that are inconsistent with this section or ORS 197.360 to 197.380.
(e) May allow the submission of an application for a middle housing land division at the
same time as the submission of an application for building permits for the middle housing.
(f) May require the dedication of right of way if the original parcel did not previously
provide a dedication.
(5) The type of middle housing developed on the original parcel is not altered by a middle
housing land division.
(6) Notwithstanding ORS 197.312 (5), a city or county is not required to allow an acces-
sory dwelling unit on a lot or parcel resulting from a middle housing land division.
(7) The tentative approval of a middle housing land division is void if and only if a final
subdivision or partition plat is not approved within three years of the tentative approval.
Nothing in this section or ORS 197.360 to 197.380 prohibits a city or county from requiring a
final plat before issuing building permits.
SECTION 2a. Section 2 of this 2021 Act applies only to a middle housing land division
permitted on or after July 1, 2022.
SECTION 3. ORS 93.277 is amended to read:
93.277. A provision in a recorded instrument affecting real property is not enforceable if:
(1) The provision would allow the development of a single-family dwelling on the real property
but would prohibit the development of, or the partitioning or subdividing of lands under section
2 of this 2021 Act for:
(a) Middle housing, as defined in ORS 197.758; or
(b) An accessory dwelling unit allowed under ORS 197.312 (5); and
(2) The instrument was executed on or after [August 8, 2019] January 1, 2021.
SECTION 4. ORS 94.776 is amended to read:
94.776. (1) A provision in a governing document that is adopted or amended on or after [August
8, 2019] January 1, 2020, is void and unenforceable to the extent that the provision would prohibit
or have the effect of unreasonably restricting the development of, or the dividing of lands under
section 2 of this 2021 Act for, housing that is otherwise allowable under the maximum density of
the zoning for the land.
(2) Lots or parcels resulting from the division of land in a planned community are subject
to the governing documents of the planned community and are allocated assessments and
voting right on the same basis as existing units.
SECTION 5. ORS 94.775 is amended to read:
94.775. (1) [Unless the declaration expressly allows the division of lots in a planned community,]
Judicial partition by division of a lot in a planned community is not allowed under ORS 105.205[.],
unless:
(a) The declaration expressly allows the division of lots in a planned community; or
(b) The lot may be divided under ORS 94.776.
(2) The lot may be partitioned by sale and division of the proceeds under ORS 105.245.
[(2)] (3) The restriction specified in subsection (1) of this section does not apply if the home-
owners association has removed the property from the provisions of the declaration.
SECTION 6. ORS 197.365 is amended to read:
197.365. Unless the applicant requests to use the procedure set forth in a comprehensive plan
and land use regulations, a local government shall use the following procedure for an expedited land
Enrolled Senate Bill 458 (SB 458-A) Page 2
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division, as described in ORS 197.360, or a middle housing land division under section 2 of this
2021 Act:
(1)(a) If the application for [expedited] a land division is incomplete, the local government shall
notify the applicant of exactly what information is missing within 21 days of receipt of the applica-
tion and allow the applicant to submit the missing information. For purposes of computation of time
under this section, the application shall be deemed complete on the date the applicant submits the
requested information or refuses in writing to submit it.
(b) If the application was complete when first submitted or the applicant submits the requested
additional information within 180 days of the date the application was first submitted, approval or
denial of the application shall be based upon the standards and criteria that were applicable at the
time the application was first submitted.
(2) The local government shall provide written notice of the receipt of the completed application
for [an expedited] a land division to any state agency, local government or special district respon-
sible for providing public facilities or services to the development and to owners of property within
100 feet of the entire contiguous site for which the application is made. The notification list shall
be compiled from the most recent property tax assessment roll. For purposes of appeal to the referee
under ORS 197.375, this requirement shall be deemed met when the local government can provide
an affidavit or other certification that such notice was given. Notice shall also be provided to any
neighborhood or community planning organization recognized by the governing body and whose
boundaries include the site.
(3) The notice required under subsection (2) of this section shall:
(a) State:
(A) The deadline for submitting written comments;
(B) That issues that may provide the basis for an appeal to the referee must be raised in writing
prior to the expiration of the comment period; and
(C) That issues must be raised with sufficient specificity to enable the local government to re-
spond to the issue.
(b) Set forth, by commonly used citation, the applicable criteria for the decision.
(c) Set forth the street address or other easily understood geographical reference to the subject
property.
(d) State the place, date and time that comments are due.
(e) State a time and place where copies of all evidence submitted by the applicant will be
available for review.
(f) Include the name and telephone number of a local government contact person.
(g) Briefly summarize the local decision-making process for the [expedited] land division decision
being made.
(4) After notice under subsections (2) and (3) of this section, the local government shall:
(a) Provide a 14-day period for submission of written comments prior to the decision.
(b) Make a decision to approve or deny the application within 63 days of receiving a completed
application, based on whether it satisfies the substantive requirements of the [local government's]
applicable land use regulations. An approval may include conditions to ensure that the application
meets the applicable land use regulations. For applications subject to this section, the local gov-
ernment:
(A) Shall not hold a hearing on the application; and
(B) Shall issue a written determination of compliance or noncompliance with applicable land use
regulations that includes a summary statement explaining the determination. The summary state-
ment may be in any form reasonably intended to communicate the local government's basis for the
determination.
(c) Provide notice of the decision to the applicant and to those who received notice under sub-
section (2) of this section within 63 days of the date of a completed application. The notice of deci-
sion shall include:
(A) The summary statement described in paragraph (b)(B) of this subsection; and
Enrolled Senate Bill 458 (SB 458-A) Page 3
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(B) An explanation of appeal rights under ORS 197.375.
SECTION 7. ORS 197.370 is amended to read:
197.370. (1) Except as provided in subsection (2) of this section, if the local government does not
make a decision on an expedited land division or a middle housing land division, as defined in
section 2 of this 2021 Act, within 63 days after the application is deemed complete, the applicant
may apply in the circuit court for the county in which the application was filed for a writ of
mandamus to compel the local government to issue the approval. The writ shall be issued unless the
local government shows that the approval would violate a substantive provision of the applicable
land use regulations or the requirements of ORS 197.360 or section 2 of this 2021 Act. A decision
of the circuit court under this section may be appealed only to the Court of Appeals.
(2) After seven days' notice to the applicant, the governing body of the local government may,
at a regularly scheduled public meeting, take action to extend the 63-day time period to a date
certain for one or more applications for an expedited land division or a middle housing land di-
vision prior to the expiration of the 63-day period, based on a determination that an unexpected or
extraordinary increase in applications makes action within 63 days impracticable. In no case shall
an extension be to a date more than 120 days after the application was deemed complete. Upon ap-
proval of an extension, the provisions of ORS 197.360 to 197.380 and section 2 of this 2021 Act,
including the mandamus remedy provided by subsection (1) of this section, shall remain applicable
to the [expedited] land division, except that the extended period shall be substituted for the 63-day
period wherever applicable.
(3) The decision to approve or not approve an extension under subsection (2) of this section is
not a land use decision or limited land use decision.
SECTION 8. ORS 197.375 is amended to read:
197.375. (1) An appeal of a decision made under ORS 197.360 and 197.365 or under ORS 197.365
and section 2 of this 2021 Act shall be made as follows:
(a) An appeal must be filed with the local government within 14 days of mailing of the notice
of the decision under ORS 197.365 (4)[,] and shall be accompanied by a $300 deposit for costs.
(b) A decision may be appealed by:
(A) The applicant; or
(B) Any person or organization who files written comments in the time period established under
ORS 197.365.
(c) An appeal shall be based solely on allegations:
(A) Of violation of the substantive provisions of the applicable land use regulations;
(B) Of unconstitutionality of the decision;
(C) That the application is not eligible for review under ORS 197.360 to 197.380 or section 2
of this 2021 Act and should be reviewed as a land use decision or limited land use decision; or
(D) That the parties' substantive rights have been substantially prejudiced by an error in pro-
cedure by the local government.
(2) The local government shall appoint a referee to decide the appeal of a decision made under
[ORS 197.360 and 197.365] this section. The referee [shall] may not be an employee or official of
the local government. However, a local government that has designated a hearings officer under
ORS 215.406 or 227.165 may designate the hearings officer as the referee for appeals of a decision
made under ORS 197.360 and 197.365.
(3) Within seven days of being appointed to decide the appeal, the referee shall notify the ap-
plicant, the local government, the appellant if other than the applicant, any person or organization
entitled to notice under ORS 197.365 (2) that provided written comments to the local government
and all providers of public facilities and services entitled to notice under ORS 197.365 (2) and advise
them of the manner in which they may participate in the appeal. A person or organization that
provided written comments to the local government but did not file an appeal under subsection (1)
of this section may participate only with respect to the issues raised in the written comments sub-
mitted by that person or organization. The referee may use any procedure for decision-making con-
sistent with the interests of the parties to ensure a fair opportunity to present information and
Enrolled Senate Bill 458 (SB 458-A) Page 4
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argument. The referee shall provide the local government an opportunity to explain its decision, but
is not limited to reviewing the local government decision and may consider information not pre-
sented to the local government.
(4)(a) The referee shall apply the substantive requirements of the [local government's] applicable
land use regulations and ORS 197.360 or section 2 of this 2021 Act. If the referee determines that
the application does not qualify as an expedited land division [as described in ORS 197.360] or a
middle housing land division, as defined in section 2 of this 2021 Act, the referee shall remand
the application for consideration as a land use decision or limited land use decision. In all other
cases, the referee shall seek to identify means by which the application can satisfy the applicable
requirements.
(b) For an expedited land use division, the referee may not reduce the density of the land di-
vision application.
(c) The referee shall make a written decision approving or denying the application or approving
it with conditions designed to ensure that the application satisfies the land use regulations, within
42 days of the filing of an appeal. The referee may not remand the application to the local govern-
ment for any reason other than as set forth in this subsection.
(5) Unless the governing body of the local government finds exigent circumstances, a referee
who fails to issue a written decision within 42 days of the filing of an appeal shall receive no com-
pensation for service as referee in the appeal.
(6) Notwithstanding any other provision of law, the referee shall order the local government to
refund the deposit for costs to an appellant who materially improves his or her position from the
decision of the local government. The referee shall assess the cost of the appeal in excess of the
deposit for costs, up to a maximum of $500, including the deposit paid under subsection (1) of this
section, against an appellant who does not materially improve his or her position from the decision
of the local government. The local government shall pay the portion of the costs of the appeal not
assessed against the appellant. The costs of the appeal include the compensation paid the referee
and costs incurred by the local government, but not the costs of other parties.
(7) The Land Use Board of Appeals does not have jurisdiction to consider any decisions, aspects
of decisions or actions made under ORS 197.360 to 197.380 or section 2 of this 2021 Act.
(8) Any party to a proceeding before a referee under this section may seek judicial review of
the referee's decision in the manner provided for review of final orders of the Land Use Board of
Appeals under ORS 197.850 and 197.855. The Court of Appeals shall review decisions of the referee
in the same manner as provided for review of final orders of the Land Use Board of Appeals in those
statutes. However, notwithstanding ORS 197.850 (9) or any other provision of law, the court shall
reverse or remand the decision only if the court finds:
(a) That the decision does not concern an expedited land division as described in ORS 197.360
or middle housing land division as defined in section 2 of this 2021 Act and the appellant raised
this issue in proceedings before the referee;
(b) That there is a basis to vacate the decision as described in ORS 36.705 (1)(a) to (d), or a basis
for modification or correction of an award as described in ORS 36.710; or
(c) That the decision is unconstitutional.
SECTION 9. ORS 197.380 is amended to read:
197.380. Each city and county shall establish [an application fee] application fees for an expe-
dited land division and a middle housing land division, as defined in section 2 of this 2021
Act. The [fee shall] fees must be set at a level calculated to recover the estimated full cost of
processing an application, including the cost of appeals to the referee under ORS 197.375, based on
the estimated average cost of such applications. Within one year of establishing [the fee required] a
fee under this section, the city or county shall review and revise the fee, if necessary, to reflect
actual experience in processing applications under ORS 197.360 to 197.380 and section 2 of this
2021 Act.
Enrolled Senate Bill 458 (SB 458-A) Page 5
PP 19-0008 ATTACH 2/PAGE 5 OF 6
Passed by Senate April 15, 2021 Received by Governor:
M., ,2021
Lori L. Brocker, Secretary of Senate Approved:
M., ,2021
Peter Courtney, President of Senate
Passed by House May 17, 2021 Kate Brown, Governor
Filed in Office of Secretary of State:
M., ,2021
Tina Kotek, Speaker of House
Shemia Fagan, Secretary of State
Enrolled Senate Bill 458 (SB 458-A) Page 6
PP 19-0008 ATTACH 2/PAGE 6 OF 6
AGENDA ITEM 4 OREGON
SEPTEMBER 23-24, 2021-LCDC MEETING ATTACHMENT 3
ATTACHMENT A ...oi Department of
Land Conservation
& Development
Senate Bill 458 Guidance
(Updated July 8, 2021)
Background
Senate Bill 458 was adopted by the Oregon Legislature in 2021. The bill is a follow-up to House
Bill 2001 - the bill that legalizes middle housing in many cities throughout the state - and allows
lot divisions for middle housing that enable them to be sold or owned individually.
Senate Bill 458 Summary
For any city or county subject to the requirements of House Bill 2001, Senate Bill 458 requires
those jurisdictions to allow middle housing lot divisions for any HB 2001 middle housing type
(duplexes, triplexes, quadplexes, townhouses, and cottage clusters) built in accordance with
ORS 197.758. Senate Bill 458 only applies to middle housing land divisions permitted on or
after June 30, 2022.
The bill sets forth a series of parameters on how a city must process middle housing lot division
applications. The city must apply an "expedited land division" process defined in ORS 197.360
through 197.380, and the applicant must submit a tentative plan for the division including the
following:
- A proposal for development of middle housing in compliance with the Oregon residential
specialty code and applicable middle housing land use regulations,
- Separate utilities for each dwelling unit,
- Easements necessary for utilities, pedestrian access, common use areas or shared
building elements, dedicated driveways/parking, and dedicated common area,
- One dwelling unit per each resulting lot or parcel (except common areas), and
- Demonstration that the buildings will meet the Oregon residential specialty code.
Additionally, cities retain the ability to require or condition certain things, including further
division limitations, street frontage improvements, and right-of-way dedication if the original
parcel did not make such dedications. They may not subject applications to approval criteria
outside of what is provided in the bill, including that a lot or parcel require driveways, vehicle
access, parking, or min/max street frontage, or requirements inconsistent with House Bill 2001,
including OAR Chapter 660, Division 046.
Guidance
DLCD staff have received a significant number of questions regarding Senate Bill 458 and how
cities or counties can best prepare to comply with the law. Below are answers to commonly
asked questions. If you find that you have a question that has not been addressed in this
document, please reach out to the Housing Team at housinq.dlcd(@_dlcd.oregon.gov.
SB 458 Deadline
Question: This bill applies to middle housing lot divisions permitted on or after June 30, 2022.
Will cities or counties need to incorporate these standards before this deadline?
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Answer: It is highly advisable, but not required, for cities or counties to incorporate
middle housing lot division standards into their development codes. On the June 30,
2022 deadline, a city or county that has not incorporated lot division standards within
their development codes would utilize the bill language directly to process middle
housing lot divisions under SB 458.
Question: Medium cities need to allow duplexes on lots/parcels that allow single-family
detached dwellings by June 30, 2021 (i.e. this year). Are duplexes built between this deadline
and the SB 458 deadline eligible for a middle housing lot division?
Answer:A duplex built pursuant to ORS 197.758 (i.e. House Bill 2001) during this time
period would be eligible to apply for a middle housing land division under SB 458 on
June 30, 2022, provided it met the applicable requirements outlined in the bill.
Question: Do cities or counties need to allow lot divisions for middle housing built prior to
House Bill 2001?
Answer: SB 458 requires a middle housing lot division application submit: "A proposal
for development of middle housing in compliance with the Oregon residential specialty
code and land use regulations applicable to the original lot or parcel allowed under ORS
197.758 (5)". This means that any lot division proposal will need to demonstrate
compliance with both applicable building code and HB 2001 middle housing code in
order to be eligible for a lot division under SB 458.
There is a potential hypothetical scenario in which a pre-HB 2001 middle-housing type
could make this demonstration, but 1.) this is an unlikely scenario and 2.) a jurisdiction
retains the ability to require the applicant demonstrate the middle housing type complies
with applicable building code and middle housing code before approving a middle
housing lot division proposal.
Applicability, Application Process, and Submittal Requirements
Question: What middle housing types are eligible for division under SB 458?
Answer: The bill specifies any lot or parcel that allows middle housing under ORS
197.758 (2) or(3) qualifies for a middle housing land division under SB 458. This
includes duplexes, triplexes, quadplexes, townhouses, and cottage clusters in applicable
cities and unincorporated, urban portions of Metro counties. Accessory dwelling units are
not eligible for lot division under SB 458.
Question: SB 458 requires cities or counties to apply the expedited land division process. What
is this?
Answer: The expedited land division process is outlined in ORS 197.360 to 197.380. It
is an alternative procedure application intended to streamline the review of land divisions
under state law. While typical land use applications must be completed within 120 days
(ORS 227.178), an expedited land division must be processed within 63 days or
extended by the governing body of a local jurisdiction (not to exceed 120 days).
Question: The expedited land division process under ORS 197.360(1)(b) seems to only include
divisions of three or fewer parcels. Does this mean that a middle housing land division is limited
to three total parcels?
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Department of
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& Development
Answer: No. First, ORS 197.360(1)(a) allows an expedited land division to be any size,
while ORS 197.360(1)(b) clarifies that the expedited land division process is also
extended to divisions of three or fewer parcels.
Additionally, SB 458 requires that local jurisdictions apply the expedited land division
procedure outlined in ORS 197.360 to 197.380, a "middle housing land division"is
distinct from an "expedited land division"and may contain more than three parcels,
provided that each resultant lot or parcel contains one unit.
Question: Can a city or county apply a typical land division process to a middle housing land
division application?
Answer: SB 458 specifies that a city or county "shall apply the procedures under ORS
197.360 to 197.380". This means that a city or county cannot require a middle housing
land division to undergo a standard land division pathway.
Question: This bill seems to suggest that the jurisdiction must approve an application for middle
housing land division after or concurrent with the issuance of a building permit, which is
backwards in comparison to typical subdivisions. Can you clarify when an applicant may submit
an application for a middle housing lot division?
Answer: Senate Bill 458 does not state that a middle housing land division must occur
either before or after the issuance of a building permit. We anticipate that most middle
housing land divisions will occur before the application for a building permit, similar to
other housing land division processes. However, we also anticipate that there may be
circumstances in which an applicant submits a land division application after developing
a middle housing type. In both scenarios, the applicant must demonstrate that the
proposal meets applicable building code and middle housing code as well as the
requirements outlined in SB 458.
Additionally, the bill specifies that a city or county may allow the submission of a middle
housing land division at the same time as submission of an application for a building
permit, but they are not required to.
Lot Division Standards and Conditions for Approval
Question: SB 458 sets out several requirements that applicants must demonstrate outlined in
the summary above. What else are jurisdictions allowed to require or condition?
Answer: The bill allows jurisdictions to require or condition the following:
- Prohibition of further division of the resulting lots or parcels
- Require notation in the final plat indicating approval was provided under SB 458
(later on, this will be the resultant ORS reference)
- Require street frontage improvements where a lot or parcel abuts a street
(consistent with House Bill 2001)
- Require right-of-way dedication if the original parcel did not previously provide a
dedication
Question: Will jurisdictions be able to require applicants to submit tentative and final plats
consistent with local platting standards?
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Answer: Yes,jurisdictions may require that the applicant submit tentative and final plats
in a manner consistent with their applicable platting standards.
Question: Can jurisdictions require that easements be submitted in a form approved by the City
Attorney and address specific issues like maintenance and repair, cost-sharing, access, notice,
damage, disputes, etc.?
Answer: Yes, cities are permitted to specify the format and issues an easement
addresses, provided that they are specific to the types of easements specified in Section
2(2)(c) of the bill, including:
A. Locating, accessing, replacing and servicing all utilities;
B. Pedestrian access from each dwelling unit to a private or public road;
C. Any common use areas or shared building elements;
D. Any dedicated driveways or parking; and
E. Any dedicated common area;
Question: What requirements are jurisdictions limited in requiring for a middle housing lot
division?
Answer: The bill specifies that a jurisdiction may not subject a middle housing lot
division application to approval criteria except as provided in Section 2 of the bill. The bill
specifies that this includes the following:
- Require that a lot or parcel provide driveways, vehicle access, parking or
minimum or maximum street frontage
- Subject an application to procedures, ordinances or regulations adopted under
ORS 92.044 or 92.046 that are inconsistent with Section 2 of the bill or ORS
197.360 to 197.380.
Question: Does that mean jurisdictions cannot require off-street parking for middle housing?
Answer: Jurisdictions are still permitted to require off-street parking and all other land
use regulations in accordance with the parameters set forth in administrative rule, OAR
Chapter 660, Division 046, but they may not require that each resultant lot or parcel
have off-street parking. Such a lot or parcel would be provided access to off-street
parking via easement.
Question: Cities or counties cannot require street frontage under SB 458, but can they limit
how many lots within a land division do not have street frontage? For example, could a city limit
the number of cottages in a cottage cluster development that only have street access from an
access easement?
Answer: The bill states that a city or county "may not subject an application to approval
criteria except as provided in this section". The restriction on minimum or maximum
frontage is an explicit example of this prohibition. Because there is nothing in this section
specifying the number of units that may only have street access from an access
easement, a local jurisdiction would not be able to include such a limitation as a
standard or condition of approval.
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Question: Section 2 (4)(b) allows cities or counties to require street frontage improvements.
Would this enable them to require frontage improvements that might otherwise be exempted for
single-family detached dwellings, which is prohibited in OAR Chapter 660, Division 046?
Answer: Yes. This provision would enable a city to require street frontage improvements
in situations where it might not otherwise be permitted under administrative rule. We also
think this can be a compelling incentive to better address the street frontage deficiencies
that persist today in older single-family neighborhoods.
Question: Does SB 458 require local jurisdictions to approve vertical divisions (i.e. divisions in
which one or more units of middle housing is not on the ground floor) of middle housing in
addition to horizontal divisions?
Answer: Senate Bill 458 does not speak to vertical divisions of middle housing and
requires that each resultant lot or parcel contain exactly one unit. Therefore, cities are
not required to allow vertical divisions of middle housing.
Townhouses
Question: Does SB 458 apply to lot divisions for townhouses allowed under HB 2001?
Answer: The bill applies to any lot or parcel that allows middle housing under ORS
197.758, including townhouses. Local jurisdictions must allow townhouse proposals to
undergo the lot division process outlined in SB 458, including the application of the
procedures outlined in ORS 197.360 through 197.380.
Question: The bill restricts cities or counties from applying minimum or maximum frontage
requirements to lots or parcels created under SB 458. This seems to conflict with OAR 660-046-
0220(3)(b) regarding minimum street frontages applied to townhouses. Are jurisdictions
permitted to apply minimum street frontages to townhouses?
Answer: Yes, SB 458 specifies that in order for a middle housing proposal to be eligible
for a land division, it must comply with all of the land use regulations applicable to the
original lot or parcel allowed under ORS 197.758 (5), which includes the full scope of
administrative rules outlined in OAR Chapter 660, Division 046. Therefore, local
governments are able to, but are not required to, apply minimum street frontages to
townhouses as permitted in OAR 660-046-0220(3)(b).
Local governments will not be able to apply minimum street frontage requirements for
individual units for plexes and cottage clusters. However, they may apply lot dimensional
standards to the parent lot as provided in OAR 660-046-0220. We recommend that local
jurisdictions carefully consider the incentives and resulting form for each middle housing
type when developing middle housing land use regulations.
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ATTACHMENT 4
House Bill 2001— Phase Two Project Timeline
2021 2022
May June July August September October November December January February March April May June
Scoping and
Chartering Middle Housing Concept Development
CC-PC AC(x6)
PC-WS(x2) Code Development
Community Forum PC-WS(x2)
CC appoints AC PC-CC Code Refinement
PC-WS(x2) Public Hearings and
CC check-in Adoption
Community Forum DLCD Notice
Public Review Draft PC-PH (x2)
CC-PH (x2)
Adoption and findings
PC-WS Planning Commission Work Session CC-PC City Council-Planning Commission Joint Study Session CC City Council meeting
AC Advisory Committee PC-PH Planning Commission Public Hearing CC-PH City Council Public Hearing
PP 19-0008 ATTACHMENT 4/PAGE 1 OF 1