HomeMy WebLinkAbout2022-01-31 Staff Memo PCWS-4 02-14-22 w-Attach PP 19-0008-R MEMORANDUM
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TO: Planning Commission/Commission for Citizen Involvement
FROM: Erik Olson, Senior Planner
SUBJECT: House Bills 2001 and 2003 Work Session-4
DATE: January 31, 2022 MEETING DATE: February 14, 2022
EXECUTIVE SUMMARY&ACTION REQUESTED
This memo provides background on the Commission's upcoming work session scheduled for
February 14, 2022, which will include a presentation from staff regarding proposed
amendments to the Community Development Code ("development code", or "CDC") to modify
existing development review processes for middle housing. These amendments are a necessary
part of the City's work to comply with the middle housing requirements of House Bill 2001 (HB
2001), pursuant to the 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 has directed staff to pursue development code amendments to meet the minimum
compliance provisions outlined in the administrative rules for middle housing contained within
Division 46 of Chapter 660 of the Oregon Administrative Rules ("Division 46"). An outline of
code amendments that will be required to be adopted in order for the City to comply with HB
2001 can be found in Attachment A. The purpose of the February 14 work session is for the
Commission to provide guidance to staff on proposed code amendments related to
development review processes for middle housing, as discussed below under Development
Review Processes, Mitigation and Public Improvements, and Expedited Review of Middle
Housing Land Divisions.
Staff is seeking the Planning Commission's direction on the development of these concepts into
draft code language.
BACKGROUND
In late 2020, staff and consultant Cascadia Partners initiated work to develop code
amendments compliant with HB 2001 that maintain consistency with Lake Oswego's sense of
place, neighborhood character, and livability. This work included extensive information
gathering, research, analysis, multiple public engagement opportunities, an ad-hoc Advisory
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Committee, several Planning Commission Work Sessions, and several City Council meetings in
order to develop a set of recommendations for compliance with the bill.
At a joint meeting of the Planning Commission and City Council held on November 16, 2021, the
Council directed staff to pursue a work plan to further develop these recommendations into
code language. The Council specified that staff should pursue the recommendations in
Attachment B that are required to be adopted by the state-mandated deadline of June 30,
2022.
In early December 2021, the City hosted a virtual Community Forum in order to provide
information on the City's approach to middle housing and to allow for public input before
drafting recommended code changes. This effort included launching an accompanying
StoryMap and Survey that were made available to the public until the end of 2021.
More recently, the Planning Commission held work sessions on December 13, 2021,January 10,
2022, and January 24, 2022, to discuss remaining policy questions and proposed code
amendments for consideration at a Public Hearing, which is necessary for compliance with
House Bill 2001.
DEVELOPMENT REVIEW PROCESSES
As mentioned previously, Division 46 stipulates that middle housing must be subject to the
same approval processes as single-family detached dwellings in the same zone. An outline of
the City's existing development review processes is provided below.
Existing Development Review Processes
Under the City's current system, typical single-family development (permits not requiring
approval of a variance) is classified as a ministerial decision, and the development of middle
housing types other than duplexes is classified as a minor decision that is subject to additional
review. (Under the existing code, duplexes are subject to ministerial review.)The review
processes for various different types of development are summarized in Table 50.07.001-1,
which is included below:
Authority
R=Recommendation;
D=Decision;
Pre-
Application Neighborhood Public A=Appeal
Conference Meeting Notice Hearing City Planning City
Type of Decision Code Section Required? Required? Required? Required? Manager Commission DRC HRAB Council
Ministerial 50.07.003.13 No No No No D
Development
Minor Development 50.07.003.14
[2]
Subdivision or Planned Development Yes Yes Yes Yes R D A
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TABLE 50.07.001-1:SUMMARY PROCEDURES TABLE
Authority
R=Recommendation;
D=Decision;
Pre- A=Appeal
Application Neighborhood Public
Conference Meeting Notice Hearing City Planning City
Type of Decision Code Section Required? Required? Required? Required? Manager Commission DRC HRAB Council
Development Review(Ed.Note) Yes [1] Yes Yes[3] R/D D/A A
Development in the R-DD Zone Yes [1] Yes Yes R D A
Historic Reviews:
• Designation or removal of
designation of a historic
landmark or district;
• Modification of a historic No No Yes Yes R D A
district;
• Demolition or moving of a
landmark
• Major alterations of a Yes No Yes Yes D[4] D[4] R[4] A
landmark
• Demolition,relocation,or
alteration of landmark on the Yes No Yes Yes D A
National Register of Historic
Places
• Minor alterations of a historic
landmark
Yes [1] Yes No D A A A
• Demolition or moving of a
contributing resource
Minor Variance 50.08.002 Yes [1] Yes No[2] R/D D/A A
Design Variance
• R-DD Design 50.08.003.2.a Yes [1] Yes Yes R D A
• Downtown 50.08.003.2.b
Redevelopment Yes [1] Yes Yes R D A
Design District
• Foothills Mixed 50.08.003.2.c Yes [1] Yes Yes R D A
Use District
• Lake Grove 50.08.003.2.d
Village Center Yes [1] Yes Yes R D A
Overlay District
• Residential 50.08.003.2.e
Infill Design Yes [1] Yes No[2] R/D D/A A
(RID)Review
Process
Major Variance 50.08.004 Yes [1] Yes Yes R D A
All Other Minor Development Yes [1] Yes No[2] R/D D/A A
Major Development 50.07.003.15
Mixed Use ODPS 1 Yes Yes 1 Yes 1 Yes I R I D I A
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Authority
R=Recommendation;
D=Decision;
Pre- A=Appeal
Application Neighborhood Public
Conference Meeting Notice Hearing City Planning City
Type of Decision Code Section Required? Required? Required? Required? Manager Commission DRC HRAB Council
Single Use ODPS Yes Yes Yes Yes R D A
All Other Major Development Yes Yes Yes Yes R D A
Legislative 50.07.003.16 No No Yes Yes R R/D
Notes: [1]Neighborhood meeting required for a partition and subdivision.The City Manager may
require a neighborhood meeting prior to the filing of an application for any other
development permit if the City Manager deems neighborhood contact to be beneficial.
[2]Per LOC 50.07.003.14.d.i,the City Manager may refer a minor development application
directly to a hearing body.
[3]Depending on the scope of the proposed development,a decision on an application for
development review may be referred to the City Manager.Typically,applications referred
to the City Manager involve minor alterations or other small-scale projects.
[4]If a major alteration of a landmark or contributing resource is combined with a major or
minor(nonhistoric)development application,the combined application shall be reviewed
by City Manager or DRC as all other major or minor development applications.HRAB may
recommend findings to the reviewing authority on criteria for the major alteration portion
of application.
[Ed.Note:The italicized text in the Authority column at the end of the row is an editorial
note,for the public convenience.They are not adopted code text at this time(4-29-15),but
will be included in a future proposal for code amendment.]
Ministerial development types permitted under LOC 50.07.003.13.a.ii generally include exterior
modifications and construction of single-family dwellings, duplexes, accessory dwelling units,
and other accessory structures. As shown above,the City's ministerial development review
processes generally do not require Pre-Application Conferences, neighborhood meetings, public
notice, or public hearings. These types of applications are typically reviewed by staff for
completeness at the building permit stage on an over-the-counter basis or via the State of
Oregon's e-permitting system. Once an application has been deemed "complete," staff from
the Building, Engineering, and Planning Departments coordinate to review the application
materials in more depth to determine consistency with applicable code criteria. This includes
extensive review by a staff member from the Planning Department to ensure that the proposed
ministerial development complies with applicable zoning regulations, such as design and
dimensional standards and other criteria within the Community Development Code. Decision-
making authority for ministerial development requests is delegated to the "City Manager,"
which is a defined term that includes all staff(LOC 50.10.003.2). While most single-family
development is classified as ministerial, single-family housing would be classified as minor
development if a zoning variance or other discretionary land use approval is requested or
required for the dwelling.
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The minor development types outlined in LOC 50.07.003.14.a.ii are permitted through a more
discretionary level of review than a ministerial decision. Broadly speaking, minor development
includes variances, lot line adjustments, partitions and subdivisions, historic review, changes of
use, multi-family residential development, commercial development, industrial development,
and development within some overlay districts (including the Downtown Redevelopment
Design District, Old Town Neighborhood Design District, West Lake Grove Design District, and
Lake Grove Village Center). As shown in the table above, most minor development requires a
Pre-Application Conference, and all minor development requires public notice. Many types of
minor development also require neighborhood meetings and the opportunity for public
hearings. Minor development decisions generally are also subject to appeal to either the
Development Review Commission (DRC) or City Council.
Under the current code, the development of "attached townhomes" of three or more units
requires a minor development decision. Though they are technically not defined under the
code today, triplexes and quadplexes contain three-or-more units on the same lot and thus are
classified as multi-family residential development, which is considered a minor decision under
the City's current development review processes. The development code currently does not
allow cottage cluster developments or other forms of detached middle housing.
Proposed Amendments to Development Review Process for Middle Housing
Per Attachment A, the review procedures detailed in LOC 50.007.003 will need to be amended
to treat middle housing the same as single-family housing in order to comply with Division 46.
At the work session on December 13, 2021, the Planning Commission concurred with staff's
recommendation to develop code amendments that would classify individual triplex,
quadplex,townhouse projects, and cottage clusters, as ministerial developments, in order to
comply with the bill.
In other words, the development of a triplex, quadplex, or cottage cluster would generally not
require a Pre-Application Conference, neighborhood meeting, public notice, or a public
hearing—as these are not required for typical single-family residential development. The
existing ministerial procedure utilized for the review of single-family and duplex dwelling
building permit applications would be applied to triplex, quadplex, or cottage cluster
applications. This review is primarily managed by the Building Department, but also includes
review by staff from the Planning, Engineering, and Fire Departments to ensure compliance
with applicable standards.
Townhouse development that requires a land division would be still considered a minor
development (even for expedited middle housing land divisions, described below under
Expedited Middle Housing Land Divisions). However, townhouses allowed under HB 2001
would no longer be subject to the additional design review approval for compliance with the
standards in LOC 50.06.001.5, as is currently required.
The procedural classification of ministerial v. minor development also impacts the requirements
on developers to provide public improvements and take other measures to mitigate the
impacts of their approved development. See Mitigation and Public Improvements, below.
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MITIGATION AND PUBLIC IMPROVEMENTS
As mentioned above, when the City reviews single-family or duplex dwelling proposals, it is
normally through a ministerial development process, which does not require a land use
decision. Ministerial development applications are reviewed by staff similar to other building
permit applications. This includes extensive review by a staff member from the Planning
Department to ensure that the proposed ministerial development complies with applicable
clear and objective zoning regulations, including setbacks, lot coverage, floor area, height,
building design and other clear and objective standards prescribed by the Community
Development Code.
Under current code there is currently no opportunity for the City to require mitigations or
offsetting public improvements for ministerial development. (All development, whether
ministerial, minor or major, are subject to systems development charges (SDCs) and other fees
designed to recompense for the development now using the broad public infrastructure of the
City and to similarly broadly contribute to future public infrastructure needed in the
community, including parks, streets, sanitary sewer, water, and storm drainage systems. These
fees are usually collected at the time of the building permit issuance.)
For minor development proposals, the City has the authority under LOC 50.007.003.5 to impose
"conditions of approval" to further mitigate specific impacts related to the development.
Mitigation requirements are based on legal principles and consideration of both policy and site-
specific factors; any required public improvements must be roughly proportional to the
anticipated impact of the proposed development. Mechanisms mentioned above that apply to
ministerial development, such as SDCs and other development fees, are also applied to minor
developments at the building permit stage.
In addition to the Division 46 requirements that triplexes, quadplexes, and cottage clusters be
allowed under the same procedures that apply to single-family dwellings, there are existing
code and statutory requirements that the City ministerially permit accessory dwelling units and
duplexes. Further, there are existing provisions in ORS 197.307(4) requiring that all residential
development be reviewed under clear and objective standards.
Staff notes that ORS 197.307(7) preserves the city's authority to impose approval standards for
outright permitted housing, or "special conditions" upon approval of a "specific development
proposal." In order to ensure that the impact of additional density from middle housing
development is mitigated adequately, and to comply with the provisions of ORS 197.307(4),
staff recommends the City establish clear and objective mitigation requirements to be applied
in the review of all ministerial development applications. This would differ from the City's
current minor development process, which requires a case-by-case, rough proportionality
analysis for public improvements to mitigate the impacts of development. Clear and objective
mitigation requirements necessarily will need to be prescriptive, such that they can apply to the
full range of ministerial developments, including single-family dwellings and middle housing.
They should also account for previous mitigation measures that may have been required at a
given property to offset the impact of previous development proposals.
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Due to the requirement in Division 46 that middle housing be subject to the same processes as
single-family housing, under the recommended process change these clear and objective
mitigation requirements would be newly-applicable to single-family dwellings (with credit
given for mitigation previously given to offset the impact of the single-family dwelling). This
represents a relatively significant shift in the way that single-family residential applications are
processed internally at the City, but would not necessarily require that single-family dwellings
provide more public improvements than would be required under the current process.
Staff notes that the ability to impose clear and objective mitigation requirements at the
ministerial level will allow for public improvements to be provided at a scale that is more "right-
sized" to the level of development permissible under the larger-scale density increases than
assumed when the lot was created for single-family development, and that is now required for
middle housing implementation. Adopted mitigation requirements based on "rough
proportionality" of development would then be known to developers prior to applying for
permits, rather than being defined during the review process.
Adopted standards for "default" development mitigations based on the level of development
may also help present more certainty to the public with regards to what types of public
improvements to expect for middle housing, because ministerial approval processes do not
include public comment. This is consistent with previous direction provided by the Planning
Commission and City Council not to pursue an infrastructure-based time extension request
(IBTER) using the process available under Division 46. (As a reminder, the IBTER process
developed by DLCD would only allow the City to delay middle housing implementation in a
given area based on a lack of sufficient infrastructure if single-family housing development is
prohibited in that area for the same reason.) Additionally, at their meeting on April 26, 2021,
the Planning Commission concurred with the City Engineer's recommendation not to update
Citywide infrastructure planning to accommodate middle housing, but instead to allow for
middle housing development proposals to provide the infrastructure necessary to mitigate the
proposal on an application-by-application basis. Staff notes that this approach is also consistent
with the following direction from DLCD, from Attachment C:
Ultimately, the rules are structured such that cities treat middle housing similar to other
forms of development in terms of ensuring infrastructure is available, or can be made
available, to serve its demand. Just like any other type of urban development, cities
should work with developers of proposed middle housing to remedy infrastructure
constraints as they arise. The rules do not however, allow cities to categorically remove
infrastructure-constrained lands from the middle housing allowances (unless through the
IBTER process prescribed in OAR 660-046-0300). The city may require developers of
middle housing to provide reasonable and proportionate mitigation of localized
infrastructure constraints like is required for any other development proposal.
Staff also recommends that an alternative path be provided to the clear and objective
mitigation standards, similar to the variance process, in the case that the applicant prefers to
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undergo a discretionary review process to determine an appropriate level of mitigation for their
proposal.
EXPEDITED REVIEW OF MIDDLE HOUSING LAND DIVISIONS
Senate Bill 458 Background
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 D). As stated in Attachment E, "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 without requiring
condominium approvals. For example, if a lot containing a side by side duplex were divided
using the process provided by SB 458, an expedited middle housing land division, each of the
two duplex units with the land surrounding them could be purchased separately. 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.
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As outlined in Attachment E, cities will retain the ability to require or condition the following
for middle housing land divisions:
• Prohibition of further division of the resulting lots or parcels;
• A notation in the final plat indicating approval was provided under SB 458 (later on, this
will be the resultant ORS reference);
• Street frontage improvements where a lot or parcel abuts a street (consistent with
House Bill 2001); and
• Right-of-way dedication, if the original parcel did not previously provide a dedication.
However, cities are not allowed to apply approval criteria beyond those provided in SB 458
(Attachment C); 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 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. 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) - including the
full scope of administrative rules outlined in OAR Chapter 660, Division 046.
Comparison to Existing Partition/Subdivision Processes
As mentioned above, middle housing land divisions required pursuant to SB 458 must be
subject to the "expedited land division" procedure defined in ORS 197.360 through 197.380.
This process is similar to the City's existing partition and subdivision processes in some ways,
but has some important distinguishing characteristics.
The City and State law currently classify land divisions creating three or fewer parcels as
"partitions", and land divisions creating more than three parcels as "subdivisions." Both
partitions and subdivisions are land use processes that involve the "parent", or "master" lot and
the newly created legal "child" lots from the parent lot. The child lots have full development
rights.
A "middle housing land division" pursuant to SB 458 would, by contrast, allow only for the
creation of new lots within a legal "parent lot", or "master lot", solely for the purposes of
expanding ownership opportunities. New lots created through the SB 458 "expedited middle
housing land division" process would not be granted additional development rights, and must
be maintained to meet the standards applicable to the parent/master lot.
As described in Attachment F, the statutory expedited land division, first enacted in 1995,
differs from the City's existing CDC-based minor development review process for partitions and
subdivisions in several ways:
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• Staff would have 21 days to determine if the application materials are complete; the
City's non-expedited land use procedure provides a 30-day window.
• The City would only need to notify neighbors within 100 feet of the property of the
proposed land division; the City's non-expedited land use procedure typically requires
that neighbors within a 300-foot radius be notified.
o Staff notes that, as a Planning Department policy, the City endeavors to provide
courtesy notice beyond the 100 ft. in the manner similar to the City's land use
notice requirements.
• Decisions are made at the staff-level after a public comment period, and no public
hearings are permitted; this is different than our review process for non-expedited
subdivisions, which could require a hearing at the Development Review Commission.
• Decisions may not be appealed to the Development Review Commission or City Council;
this is different than our review process for non-expedited partitions and subdivisions,
which may be appealed to City Council.
• Staff would have 63 days to decide whether to approve an application once it has been
deemed complete; the City's non-expedited land use procedure provides 120 days for
staff to issue a decision.
• Following the staff decision, there would be a 14-day period to allow for an appeal to a
the Council-appointed expedited land division "referee" (or "ELD Referee"); the City's
non-expedited land use procedure provides a 14-day period to allow for an appeal to
City Council, and an additional 21 days after the Council decision to allow for an appeal
to the Oregon Land Use Board of Appeals (LUBA).
o Appeals of expedited land division decisions made by the ELD Referee would go
to the Oregon Court of Appeals, as opposed to LUBA. The Court of Appeals
would then have a limited set of criteria to apply to a potential reversal or
remanding of the ELD Referee's decision. See Attachment F for more
information on the difference in appeals processes.
Development Review Processes for Expedited Middle Housing Land Divisions
As noted above, the Planning Commission and City Council have provided direction to comply
with the state's middle housing requirements under the minimum compliance track. Consistent
with City processes for other expedited land division applications (not related to middle
housing), applicants must be given the choice to either utilize the expedited land division track
or to "opt out" and instead utilize the typical, non-expedited land division process.
Applicants that choose the expedited track would be subject to the expedited land division
procedure defined in ORS 197.360 through 197.380, described above under Comparison to
Existing Partition /Subdivision Processes. Under this process, expedited middle housing land
divisions would still be subject to many of the same requirements as other minor development
requests, such as a Pre-Application Conference, neighborhood meeting, mailed notice
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requirement, and a 14-day public comment period. This is the same process available to land
divisions today that do not "opt out" of the expedited review process available under state
statute.
With respect to mitigation, the City will have conditioning authority to require public
improvements for both expedited middle housing land division applications and typical, non-
expedited land divisions (i.e. partitions and subdivisions). Once adopted, the recommended
clear and objective mitigation standards would be applied in the review of land divisions,
whether through the expedited middle housing land division review process or not.
ATTACHMENTS (LINKS)
A. Plan and Code Audit Summary, 5/6/2021, click here
B. MHCAC Key Issues Summary Memo, 11/3/2021, click here
C. House Bill 2001 FAQ, 8/16/2021
D. Enrolled Senate Bill 458, 5/17/2021
E. DLCD Senate Bill 458 Guidance, 7/8/2021
F. Deputy City Attorney Expedited Land Divisions Memo, 1/11/2022
To view these documents and other documents in the public records file, visit the Planning
Project webpage: https://www.ci.oswego.or.us/house-bills-2001-and-2003
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HB 2001 Interpretation and Implementation FAQ
Updated August 16, 2021
General Questions
Q 1: How is model code applied, and does it pre-empt existing regulations for a jurisdiction?
A: If a city is not in compliance, the model code does not necessarily apply in its entirety. If cities
are out of compliance for a certain section (i.e., townhouses), the model code would not apply
for other sections that are in compliance with Division 46(i.e., plexes). In this scenario, only the
townhouse portion of the model code would preempt local codes.
Q 2:What happens if a city misses the June 30, 2021/2022 deadline for middle housing codes by only a
short time period because of public process requirements? Is model code effective during that time?
A: Yes, model code becomes effective July 1, 2021/2022, unless the city has adopted and made
effective its own Division 46-compliant code regulating middle housing. The Medium/Large City
Model Code would be in effect until such time the city adopts and makes effective its own
Division 46 code.
Q 3: Can a city apply for a time extension if we are running up against issues in adoption by June?
A:HB 2001 included an extension of the enactment of middle housing provisions only in the case
of significant infrastructure deficiencies in water, transportation, storm water, and sewer
systems. That is not for delaying the enactment of middle housing across entire city. It is for
delaying the enactment of localized infrastructure deficiencies. For Medium Cities, the deadline
for applying for such an extension was December 31, 2020. For Large Cities, the deadline for
applying for such an extension was June 30, 2021.
Q 4:Some cities have tree ordinance processes, especially tree preservation, which could clearly come
into conflict with middle housing provisions. Do you suspect litigation around this provision?
A:If a tree preservation provision applied equally to proposals to develop a single detached
dwelling on a lot, then it would equally be applied to middle housing development on the lot,
even if it meant a developer couldn't put middle housing development on-site. This is similar to a
floodplain or natural resource protection, where development might be limited to a particular
footprint.
Q 5: Can you elaborate assumption of 3% increase in capacity and what that means?
A:Section 5(6)(b)of HB 2001 was introduced by the Oregon Homebuilders Association. The
statute applies to how cities can calculate the capacity of buildable land. A city may assume only
3%growth in middle housing as an increased efficiency measure to accommodate an identified
housing need. A city only also assume a higher rate of middle housing growth if the city can
produce a quantifiable justification. This provision is not related to how a city regulates the siting
and design of middle housing and is more related to how cities conduct Buildable Lands
Inventories and Housing Needs Analyses.
PP 19-0008 ATTACHMENT C/PAGE 1 OF 27
Q 6: If our city adopted a middle housing code a few years ago, before HB 2001 rules were adopted, how
can we contend we are compliant with HB 2001?
A: While DLCD is not the final decision maker on whether a city is compliant with HB 2001 (the
Land Use Board of Appeals or other court will ultimately settle compliance disputes), the
department is more than happy to review and comment on city codes that were adopted prior to
the HB 2001 rulemaking.
Q 7:Are cities required to allow middle housing on small nonconforming lots of record?
A:Cities must allow duplexes on every lot and parcel that allows for the development of a single
family detached dwelling. For higher levels of middle housing, while the city must allow these
housing types in zones that may have nonconforming lots of record, the city can still require that
these housing types meet underlying siting standards such as minimum lot size, minimum lot
width, building setback requirements, etc. to determine whether or not to approve a building
permit.
Q 8: Do we need to update comprehensive plan while updating regulatory changes to HB 2001? Does
comp plan create consistency with regulatory changes to HB 2001?
A:DLCD will not generally be reviewing amendments to local government comprehensive plans
to respond to new state laws. The question of whether a city needs to update a comprehensive
plan policy is different for each city. While it is advisable that cities go through the update
process to conform to state law, the requirements, statutes, and Administrative Rules
implementing HB 2001 take legal precedent over local government comprehensive plan policies.
In a scenario where a local government has comprehensive plan policies that conflict with the
purpose and intent of HB 2001, the rules found in OAR 660-046 will govern the allowance of
middle housing.
Q 9:When our city applies conditions to dwellings, it is normally through a Type II land division process.
When regulating proposals on an existing lot, it is normally through a Type I process—site review, over
the counter. Even with a more involved Type I process, a city is not able to write conditions. How we our
city apply conditions and make the process for middle housing the same as single family detached?
A: The intent of HB 2001 is to remove unreasonable cost and delay to the development of middle
housing.Applying a more laborious or onerous review process to middle housing than is applied
to single family dwellings, would be in conflict with that intent. Per OAR 660-046-0215, a city
must apply the same approval process to middle housing as detached single family dwellings in
the same zone.
In relation to discretionary reviews for middle housing, ORS 197.307(4)requires that all
residential development be reviewed under clear and objective standards.A city may also
continue to provide a discretionary path option to applicants.
Q 10: Do the requirements of HB 2001 apply to a residential zone that allows middle housing types as
permitted outright, but single family detached are conditionally allowed?
A:Zoning districts that are primarily residential in nature should not require a conditional use
permit for single family detached or any other housing type. Per ORS 197.307(4), all residential
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developments must be reviewed using clear and objective standards. In this scenario, it is
advised that the city first determine whether to 1)allow single family detached in that zoning
district outright via a clear and objective path in compliance with ORS 197.307(4)or 2)not allow
single family detached all together. If the city chooses option 1, the city must also allow middle
housing in that zoning district pursuant to Division 46.
If the zoning district in question is not primarily residential in nature, it is not subject to the
requirements of HB 2001 or Division 46.
Q11:We are a Medium City that only needs to comply with the duplex provision, but we are planning to
allow other Middle Housing types as well. Considering that statute allows us to only assume up to a 3%
increase in capacity, what is the percentage for this scenario?
A: It's important to clarify that the three percent capacity assumption applies to all of the new
measures adopted to increase the capacity of residential lands within a UGB, unless the
jurisdiction provides a quantifiable validation that demonstrates a higher projected increase. In
total, Middle Housing code amendments may result in up to a three percent increased capacity
of lands within the UGB. In this particular case, the city may find that a three percent capacity
assumption is not appropriate and may assume a higher rate as now allowed under ORS
197.296(6)(b)
Q12:Are cities permitted to completely prohibit a middle housing type within a specific geographic area,
or is it just lot size and density?As a city prepares findings, should they prepare justification why they
approached the performance metric?
A: The performance metric allows applying alternative minimum lot sizes and maximum
densities than what is provided in Division 046. Because these standards are applied at the
zoning district level, it is not a particularly useful tool in terms of designating specific
geographies where Middle Housing is or is not permitted.Additionally, the performance metric
approach requires that the city show that middle housing types allowances are equitably
distributed within a Census Block Group.A city may be challenged to meet the criteria of the
performance metric approach if the city were to selectively prohibit middle housing types from a
specific location solely on the basis of its geography rather than the underlying minimum lot size
or maximum density standards.
There is no additional rationale necessary to pursue the performance metric approach.
Q13: For building permits, can a jurisdiction continue to require additional application materials be
submitted for housing types that include more than two units in a building?
A: It depends whether we are discussing materials needed for a building permit or to fulfill land
use standards.A building permit, with associated application materials, is primarily intended to
review site plans and structures for compliance with building and structural codes. If the building
permit submittal requirements are used to review the development proposal beyond regulations
specific to building code and include land use standards, that wouldn't necessarily protect the
standard from legal challenge.
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Participant Response: In regard to the question, are you wanting to use the building permit
process to approve such things as landscaping?That is not a building permit standard. If it were
something like sprinklers then that would be different.
Applicability in Mixed-Use Zones
Q 14: Does HB 2001 and Division 46 apply in Mixed-Use Zones?
A: There are three criteria that need to be met for HB 2001 applicability:1)Residential
Comprehensive Plan Designation (this includes both residential comprehensive plan designations
and mixed-use comprehensive plan designations as they are both commercial and residential), 2)
Primarily Residential Zoning Districts(based on purpose and allowed uses), and 3)allows single-
family detached as a permitted use.As an example where HB 2001 would apply is a low-or
medium-density residential zoning district that implements a mixed-use comprehensive plan
district.
Q 15: If a city has a mixed-use district that lists existing single family detached houses as permitted but
does not allow any new ones, is that a zone where development of single family detached homes is
allowed? Does HB2001 apply to those districts?
A:No. Though single family detached homes may be allowed as a legal nonconforming use, the
department does not expect cities to allow middle housing as an outright permitted use in these
zones unless they so choose. The allowance of middle housing in these particular zones would
not be subject to the standards of Division 46.
Subdivision vs. Master Planned Community
Q 16: How does a city adequately plan infrastructure in new subdivision areas where the subdivision
does not meet the definition of a Master Planned Community as described in OAR 660-046-0020 and
OAR 660-046-0205?
A: This issue was considered as part of planning master planned communities, which allows
middle housing types and provides jurisdictions with certainty for infrastructure planning (i.e., 15
units/acre or 20 units/acre within the Portland Metro region). While this doesn't apply to
subdivisions, it at least provides guidance to cities on how to approach subdivision planning in
relation to new middle housing allowances.
At the subdivision stage, it is acceptable for a city to require a developer to identify the intended
housing types for the purpose of infrastructure planning. It would be possible for a developer to
apply for a building permit for a middle housing type after final plat, but the city retains the
ability to require a demonstration that there is sufficient infrastructure to serve the proposed
middle housing type. If there was not sufficient planned capacity from the subdivision process to
accommodate the proposed middle housing type, the City retains the ability to require a
developer to remedy the deficiency before issuing any building permits.
Q 17: Can members of DLCD speak on CC&Rs?
A:HB 2001 rules did not address existing CC&Rs head-on. Rules prohibit future CC&Rs that
prohibit the development of middle housing, but did nothing to alter CC&Rs retroactively. DLCD
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and the state are not a party to private CC&Rs(nor are local governments). It would be a
monumental task for cities to understand where CC&Rs exist, what they prescribe, and whether
they are actually enforceable through private legal action by a party to those CC&Rs. For these
reasons, DLCD recommends that local governments not consider CC&Rs when formulating
zoning code provisions for middle housing, or for any other type of development for that matter.
It is an open question as to whether the Oregon Legislature has the authority under the state or
federal constitutions to render existing CC&Rs unenforceable, much less for LCDC to take such
action through an administrative rule.
Affordability
Q 18: HB 2001 requires cities to write findings explaining how they have considered increasing the
affordability of housing. A construction excise tax indirectly supports affordable housing. For other
measures, as well, cities should consider how they apply to middle housing as a broader consideration,
but not just do that in context of middle housing. It's not a requirement to adopt a construction excise
tax,just a requirement to start the conversation about what adopting one might mean and creates
context for a deeper dive as part of the Housing Production Strategy. Is that correct?
A:Correct, cities should be thinking of affordability in a much broader sense, especially as they
gear up to have conversations regarding their Housing Production Strategy that will develop a
more comprehensive local approach to affordability. There is available guidance in
administrative rule, OAR 660-008-0050, Exhibit B for cities to consider other approaches. DLCD
encourages cities to be proactive in exploring these strategies.
Q 19: How should a city prepare Middle Housing Affordability considerations and Goal 10 findings?
A:Middle Housing Affordability Considerations
House Bill 2001 requires local governments to consider ways to increase the affordability of
middle housing, including considerations related to SDCs, property tax exemptions, and
construction taxes.
Sections 3, chapter 639, Oregon Laws 2019:
(4) In adopting regulations or amending a comprehensive plan under this section, a local
government shall consider ways to increase the affordability of middle housing by
considering ordinances and policies that include but are not limited to:
(a) Waiving or deferring system development charges;
(b)Adopting or amending criteria for property tax exemptions under
ORS 307.515(Definitions for ORS 307.515 to 307.523) to 307.523 (Time for filing
application), 307.540(Definitions for ORS 307.540 to 307.548)to 307.548(Termination
of exemption)or 307.651 (Definitions for ORS 307.651 to 307.687)to 307.687(Review of
denial of application)or property tax freezes under ORS 308.450(Definitions for ORS
308.450 to 308.481)to 308.481 (Extending deadline for completion of rehabilitation
project);and
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(c)Assessing a construction tax under ORS 320.192 (City or county ordinance or
resolution to impose tax)and 320.195(Deposit of revenues).
Please note that this is not a requirement to adopt these measures, but to consider them and
directly address them within the findings. We advise that local governments use this opportunity
to consider the myriad of policies that affect middle housing development. The policies outlined
within the bill are specific to the subsidization of middle housing development and affordable
housing generally. We also advise the consideration of other policies that affect the feasibility
and affordability of housing options, such as the provision and finance of public facilities,
incentives for regulated affordable housing development, incentives for the retention or
conversion of existing affordable housing supply, and incentives and barriers within the
development code.
Starting these conversations will be helpful for local jurisdictions as they embark on their housing
production strategy, a new planning requirement for cities above 10,000 implemented by House
Bill 2003 (now ORS 197.290). This document will require cities to identify and develop an
implementation schedule for strategies that promote the development of housing. Rulemaking
for this new requirement included the compilation of a library of potential strategies local
governments could consider as part of a housing production strategy. While this list is not
exhaustive, it's a good place to start the conversation. You can access this document as an
attachment on the Secretary of State webpage:
<https://secure.sos.state.or.us/oard/view.action?ruleNumber=660-008-0050>
Goal 10 Findings
ORS 197.175(2)(a)requires cities and counties to prepare, adopt, amend and revise
comprehensive plans in compliance with Oregon's statewide land use planning goals, including
Goal 10. In any plan amendment or adoption of land use regulations, cities and counties must
address via findings how the proposed plan amendments affect compliance with each applicable
goal.
In adopting land use regulations to comply with House Bill 2001, local jurisdictions will need to
consider how these regulations will affect their compliance with Goal 10, including how it affects
an adopted Buildable Lands Inventory(BLI)and Housing Needs Analysis(HNA), to ensure the
sufficient availability of buildable lands to accommodate needed housing types identified in the
HNA.
House Bill 2001 will enable to development of housing types where they were previously
prohibited, increasing the capacity of lands to accommodate identified housing need. However,
local jurisdictions will still need to consider how these regulations impact capacity in greater
depth. ORS 197.296(6)(b), as amended by House Bill 2001, allows jurisdictions to assume up to a
three percent increase in zoned capacity, unless they demonstrate a quantifiable validation that
the anticipated capacity will be greater. In developing Goal 10 findings, we recommend that
local jurisdictions apply this assumption to the adopted buildable lands inventory.Additionally,
we recognize that adopted inventories may be dated and the true development capacity may not
be known at the time of adoption. In these cases, we recommend that jurisdictions note that
PP 19-0008 ATTACHMENT C/PAGE 6 OF 27
they will further consider the impacts of middle housing ordinances on land capacity in the next
Housing Needs Analysis, as required on a regular schedule by House Bill 2003.
Goal Protections
Q 20: How does a city treat lands subject to natural hazards?
A:Cities are allowed to limit density and occupancy in areas subject to natural hazards (e.g.,
100-yr.floodplain, landslide hazards) that increases risk to people and property.Areas subject to
natural hazards must be inventoried and mapped, and the city should demonstrate in findings
that middle housing development in these areas pose risk to people or property.
Q 21: Does Goal 7 (Areas Subject to Natural Hazards) protection mean a city can regulate middle
housing in these areas differently than they regulate single-family detached housing?
A: Yes. Cities can limit housing here if it poses a risk to life and property. This is fairly
discretionary and requires a reasonable argument outlined in the findings, as discussed
previously.
Q 22: How should cities approach standards for development in the FEMA 100-year floodplain?
A: OAR 660-046-0010(3)(c)(A)allows local jurisdictions to limit use, density, and occupancy in
Special Flood Hazard Areas(i.e. the 100-year floodplain as defined by FEMA). This would allow
for restrictions to middle housing within these areas to limit risk to people and property.
Q 23: Does Goal 15 (Willamette Greenway) mean that the city can only apply goal 15 clear and objective
standards?Will city need to update Goal 15 standards in local code in order to comply?
A: This goal reveals an underlying conflict between statute and Goal 15, because Goal 15
outlines a discretionary review process applied to development adjacent to the Willamette
Greenway, but ORS 197.307 prevents the application of such a review to housing.Areas around
Goal 15(Willamette Greenway) would be well-suited to middle housing, but DLCD understands
there is a need for guidance on clear and objective standards which currently does not exist.
DLCD hopes to have future guidance on the process using clear and objective standards. Staff
recognize it would be unreasonable to fully update adopted Goal 15 code given its breadth and
depth of scope in such a short time frame. Therefore, it is not the Department's expectation that
cities amend these codes as part of middle housing updates. However, the rule leaves the door
open for jurisdictions to consider doing so in the future.
Q 24:There are a few scenarios in our city where a discretionary permit review process comes into play.
One such scenario is when an applicant requests a discretionary review process that is available to them
and the other scenario is when development is proposed in a historic district. ORS 227.173 states that
when using a discretionary review process the resulting decision has to be consistent with the
Comprehensive Plan. How does the city reconcile findings showing that approval is consistent with the
Comprehensive Plan when the Comprehensive Plan includes a specified density limit?
A: Regarding discretionary review processes in Goal 5 Historic Resource Areas, ORS 197.307(4)
exempts historic preservation standards from the clear and objective requirements. For historic
districts or resources, cities can apply discretionary review processes to middle housing but a city
PP 19-0008 ATTACHMENT C/PAGE 7 OF 27
cannot deny an application on the fact that the development is middle housing, especially based
on standards related to use, occupancy, and density.
In terms of reconciling findings so they allow middle housing while also remaining consistent
with Comprehensive Plan policies, state statutes, rules, and policies govern allowances for
middle housing. Land use law typically favors the "particular overrides the general"arguments
to determine which policies prevail in cases of conflict.
Q25: Our city has a historic district(Goal 5)that does not see townhouses as compatible,though 2/3/4-
plexes designed with a SFR volume would be compatible. Can we not allow townhouses in a historic
district but allow all other missing middle?
A:OAR 660-046-0010(3)(a)(B)disallows local jurisdictions from applying use, density, and
occupancy restrictions that prohibit the development of Middle Housing while otherwise
permitting the development of single-family detached dwellings in historic districts.A city would
not be able prohibit a townhouse project in those areas solely on the basis of its housing type.
However, cities are still permitted to apply historic design standards to townhouses, similar to
any residential development in a historic district.
Participant Comment:What would be the difference between a quadplex developed to look like
row houses, and four attached townhouses? I understand the city's position, but a quadplex can
look identical to townhouses, so it muddies the waters that we are going to have these different
rules that have these housing types developed in a similar manner. Especially if the expedited
land division bill (SB 458) allows the division of the quadplex, into essentially townhomes, after
the fact.
Participant Comment: In your response to Goal 5 historic resources, if a city applies the
performance metric approach,they technically CAN exclude middle housing from historic
districts, correct?
Staff Response:As discussed in another question, the performance metric approach allows cities
to establish alternative minimum lot sizes and maximum density standards, but it does not
enable them to specify a geographic area where Middle Housing is excluded. OAR 660-046-
0010(3)(a)(B)states that "cities may not apply...use, density, and occupancy restrictions that
prohibit the development of Middle Housing on historic properties or districts that otherwise
permit the development of detached single-family dwellings."The OARs do not disallow cities
from applying these standards, it only disallows cities from applying those standards that would
functionally prohibit middle housing in those districts.
Manufactured Dwellings as Middle Housing
Q 26: Can cities prohibit manufactured ADUs?What about manufactured dwellings for detached
duplexes?
A: The relationship between manufactured dwellings and middle housing is still an open
question. This is mostly because the statute for manufactured homes was written and adopted in
a time where middle housing was not a consideration. In general, DLCD advice is to tread lightly
PP 19-0008 ATTACHMENT C/PAGE 8 OF 27
in this regard. It is okay to regulate the siting and design of manufactured AD Us, but we would
recommend against prohibiting manufactured ADUs to limit the potential for legal challenge.
The same is true for detached duplexes;it is not yet clear whether manufactured homes must be
permitted in a-plex configuration, provided that the development standards overall still allow
for the development of manufactured homes per ORS 197.314. DLCD has not specified
parameters around detached duplex regulations, as it is intended to provide jurisdictions options
to increase flexibility of development, and the Department would not want to deter jurisdictions
from this path. However, ORS 197.314 does not specify how many manufactured homes must be
allowed on a lot(because this was previously assumed to be "one"). We recommend allowing
manufactured configurations with appropriate siting and design regulations to prevent
undesirable scenarios.
Q 27: If a city allows manufactured housing or prefabricated units as cottage clusters, when does an
application change from being a cottage cluster to being a manufactured home park?
A: This distinction is unclear in statute at the moment. This is an example of inconsistencies in
manufactured home statute because of the time the statute was written, which was decades in
advance of middle housing statutes. It may be advisable to distinguish the two via some sort of
partition or subdivision process that is unique to a manufactured dwelling park. Typically,
manufactured homes in manufactured home parks have underlying land ownership models
which could distinguish them as something other than middle housing.
ORS 446.055 provides an exemption for between four and six manufactured dwellings to be sited
on a lot without meeting requirements applicable to manufactured home parks. This may be an
option for local jurisdictions to consider in the context of manufactured cottage cluster siting.
Q 28: If manufactured dwelling parks were on their own lots that might be a trigger for cottage clusters.
Can jurisdictions say that cottage clusters need to be on their own lot and a platted subdivision is
required. Is this correct?
A:In that case, yes, but that may change if H8 2283 (2021) or similar legislation becomes law.
Parking/Access
Q 29:Through model code can a city require alley-loaded parking for townhouses in order to save on-
street parking and minimize curb cuts?
A: Yes, there is an option in model code to provide alley-loaded parking for townhouses, but not
a requirement. With OAR 660-046, a city cannot require any parking standard that isn't applied
to single detached residence. So if a city requires alley-loaded parking for townhomes, it must
also require alley-loaded parking for a single detached residence on the same lot or in the same
district.
Q 30: Regarding driveway cuts, especially for duplexes/triplexes, a lot of access standards can be
somewhat discretionary. For duplexes, can a city only limit one curb cut for a duplex (same as single-
family detached)? OR, does there have to be one curb cut/unit for each duplex/triplex/quadplex?
PP 19-0008 ATTACHMENT C/PAGE 9 OF 27
A:For higher middle housing types, requiring access for each unit could be difficult to achieve
and would be good to avoid.Another option would be to require combined driveways for two or
more units, to limit curb cuts and retain on-street parking.
Q 31:Can cities require separate access to duplexes, or does it need to be shared between units?
A: The model code doesn't address this, but duplex standards can't be more restrictive than
single family standards. The city could allow multiple driveways or separate access to duplexes
but could not require it if they don't require multiple driveways for single family detached homes
in the same zone.
Q 32: If there is already existing minimum spacing standards between driveways, would that apply to
townhouses that need front access?That would mean that every townhouse in every development
would not have its own driveway.
A: This creates a risk of appeal, because such a spacing standard could result in preclusion of
townhouses, as they couldn't meet the same spacing standards that apply to a single-family
dwelling. We would definitely steer cities away from this possibility, but that scenario could
hypothetically happen, since not addressed directly by Division 046. One possible remedy is to
apply driveway spacing standards but provide an exception to the standards to allow each lot at
least one driveway. Another option would be to require combined driveways for two townhomes,
to provide more spacing.
Q 33:Alternatively, there are three standards in large city model code for driveway access to
townhouses. Could a city not permit the third, which is front-loaded driveways?Could model code be
modularly adopted?
A: Yes, a city could pick parts of model code, and it could also be interspersed with Division 46
compliance. The Department recommends avoiding implementing standards that would be more
restrictive than the Model Code, such as only permitting rear-loading alleys for townhouses(and
precluding front-access townhouses)in an area where no alleys currently exist or could be
designed as part of a larger land division.
Q 34: Some cities are looking at a standard whereby narrow lots will have to be alley-loaded due to
driveway width standards which will make it harder to do townhouse development.
A:Some cities exempt development from driveway spacing requirements to ensure there is one
driveway per lot. DLCD recommends cities do not adopt standards that would make
development of middle housing more difficult. If a city required in the context of a larger
subdivision the use of alley access, it would have to require such access for single detached unit
development as well. These types of standards could open cities to legal challenges.
Q 35:A city may allow required parking on-street, but have more heartburn over the fact that if they
require the space, allow it, and parking space goes away, housing becomes non-conforming. As a result,
cities are stuck with the choice to not require parking or will not allow on-street parking in order to not
have parking space attached to a house. What are your thoughts on that?
A: That is a good policy discussion on the local level. We would advise to include some provision
in code written that specifying that the loss of on-street parking via a future action does not
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make the dwelling unit non-conforming. This shifts the responsibility to the city to consider on-
street parking as they do street improvements.
Q 36:Some jurisdictions actually require on-street parking in addition to off-street parking.They've
been wondering whether they can apply those standards to middle housing.
A: The rules don't mention on-street parking except as a possibility for jurisdictions to allow in
lieu of off-street parking. If standards are a per-unit standard, it probably would not be
permissible. One per lot or development may be permissible as a frontage standard, but
generally, DLCD would not recommend requiring it, because it precludes options for flexibility,
such as a narrower street width.
Q 37: If we have to allow middle housing in the same manner as single family detached dwellings, what
happens in an instances where single family detached was allowed with a hammerhead access aisle? Is
allowing middle housing in that way okay, even if it will make it into a cul-de-sac?
A:It's not an absolute right to develop middle housing. There are still underlying standards, such
as fire and emergency access, which have to be met before middle housing development is
permitted. This would also hold true for detached homes being converted to duplexes.
Q 38: Can DLCD confirm that there is no exemption or special provisions in OAR 660-046 where a city
could require additional off-street parking spaces for middle housing if there is no option for on-street
parking?
A: Yes, confirmed. One thing to note here is that these standards limit the requirement of off-
street parking, but don't limit the developer from providing more parking if they so choose.
Q 39:There's an OAR provision related to parking that applies to triplexes, quadplexes, and townhouses:
"A Large City must apply the same off-street parking surfacing, dimensional, landscaping, access and
circulation standards that apply to single-family detached dwellings in the same zone."
Does this include all driveway and access standards?Specifically,the approach grade standards. If a
jurisdiction exempts single-family detached homes from certain approach grade requirements, do all
triplexes/quadplexes and townhouses also need to be exempt? Or only middle housing that's created
through conversion?
A: Yes, cities should apply the same approach grade standards to middle housing as they do for
single-family detached. Similarly, if the city allows and exemption from these standards for
single-family detached, the same exemption should be extended to middle housing. While, the
rules do not explicitly address approach grade standards, staff finds it reasonable to assume that
these standards are included in the OAR as part of"surfacing, dimensional, landscaping, access,
and circulation standards".
Duplexes,Generally
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Q 40:What's the difference between an ADU and a detached duplex? Does city or developer get to
define those units?
A: Division 46 provides a simple set of definitions for jurisdictions that establish the minimum
necessary definitional characteristics(i.e. number of units on lot). The Division 46 definitions also
give an additional set of options for cities to define these housing types differently. For example,
the Division 46 definition of a duplex is that the units are attached. The rules also allow a city to
define a duplex as either attached or detached. ADU allowances may create scenarios where
there is little parity between that and a duplex. In a scenario where a property owner is
proposing a development that can meet both the definition of a duplex and the definition of an
ADU, DLCD recommends that the city allow the property owner to declare which property type it
should be reviewed as.
Q 41: In Figure 3 and 4 of model code,there are examples of detached duplexes, but still show figures
with breezeways and garage in-between. Is that really the intent?
A:Figure 3 of the Medium Cities Model Code shows a duplex attached by a side-by-side garage
wall. Figure 4 of the Medium Cities Model Code shows a duplex attached by a breezeway. Both
of these figures meet the definition of an attached duplex. Figure 5 of the Medium Cities Model
Code shows a detached configuration of duplexes that is an option cities can opt into.
Q 42:Are there any parameters for what is considered detached?
A:No. The Model Code and OARs focus more on defining what is attached, rather than
detached.
Q 43: Our city's current code only allows for attached duplexes. Does that meet intent of HB 2001?
A: Yes. The minimum acceptable definition of a duplex is that it is in an attached configuration.
How the city would like to define "attached"is up to the city. The Model Code provides a few
examples of attached duplexes but a city is not required to allow all of those attached duplex
examples.A Medium Cities can choose to allow duplexes in a detached configuration.
Townhouses,Generally
Q 44:Townhouses can only happen on every lot through a land division,which can be a barrier to
middle housing. How does DLCD anticipate to address these barriers that may arise through land
divisions in the future? [Recording Time Stamp:0:54:36]
A:Currently, there are two policy directions that could lead to an increase in ownership
opportunities for middle housing:1)requirements for local governments to allow land divisions
of middle housing developments, and 2)condominium law reform for smaller projects. HB 2283
(2021)may be adopted in this legislative session, which requires local governments to allow land
divisions for middle housing development. The definition of"townhomes"set forth in HB 2001
specifies that they are located on individual lots. A townhome-style development without a land
division would be considered the equivalent of a "plex"development.
Q 45: Requirement for frontage on a street would remain a barrier for fee-simple ownership for many
middle housing types. Does the House Bill 2283 address that?[Recording Time Stamp:0:58:28]
PP 19-0008 ATTACHMENT C/PAGE 12 OF 27
A:No, it does not. However, H8 2283 or similar legislation may address this issue.
Cottage Clusters, Generally
Q 46: In model code, the definition of cottage cluster states that a medium/large city may allow cottage
cluster units to be located on a single lot/parcel or on individual lots/parcels. What does this mean for
cities with how they allow for cottage clusters? Do they need to allow single lot or individual lot? Can it
be one or the other?
A:Cities can do any of the following. 1)Require cottage clusters allowed on single lot(only) OR
2)cottage clusters allowed on individual lot(only), OR 3)allow both single lot and individual lot
cottage clusters.
Q 47:What is the maximum number of cottages a city can regulate in a cluster?
A: There is nothing in OARs that prohibits a city from putting a maximum number of cottages in
a cottage cluster. The middle housing rules in OAR don't speak to a maximum number of cottage
cluster as a way to provide maximum flexibility for developers to provide as many cottages as a
site could bear, within the bounds of reasonable building permit approval criteria such as
storm water mitigation, utility connections, and state building code.
Q 48:According to OARs it seems like jurisdictions can have one unit/lot or infinite units/lot, but nothing
in-between is possible. It would be helpful for a jurisdiction to know if they can limit clusters on a site.
At what point is too much before becoming a small unit subdivision?
A: The rule does not prohibit establishing an upper limit on the number of cottages on a lot. The
requirement to allow at least eight units in a cluster means that there really is a floor to allow at
least eight units within a cottage cluster, but a local jurisdiction may limit the upper threshold of
how many units or clusters are allowed in a lot.
Q49: Is there anything that prohibits cities from allowing attached cottages?Allowing attached cottage
clusters would be more permissive than the minimum standards in Division 46, so it seems like these
would be allowed.
A: HB 2001 and Division 46 explicitly define a cottage cluster as a collection of detached cottages
with smaller building footprints with a common courtyard. It is the only middle housing type that
was defined with as much detail. The clear legislative intent is that these types of developments
must be allowed.As the question suggests, a city may adopt standards that are more permissive
than the rules. Under this logic, allowing attached cottage units is an acceptable outcome
because it allows additional housing types and choices above and beyond what is allowed in
Division 46.
However, an attached cottage development, on its face, does not meet the underlying definition
of a cottage cluster in H8 2001 and Division 46(i.e. building footprint is likely greater than 900
SF, are not detached). As such, DLCD encourages a city interested in allowing attached cottages
to use a separate and unique definition for the housing type as to not conflate attached cottages
with cottage clusters as defined in H8 2001 and Division 46.
PP 19-0008 ATTACHMENT C/PAGE 13 OF 27
Q50:We have developers possibly interested in large cottages- like 900 sf footprint but 3 story.There is
precedent here for a project like this. I believe we can, but can you confirm whether there is anything in
the rules that would preclude us from defining the size of a cottage to be smaller than that?
A:Cities retain the ability to set the height and unit size restriction under OAR 660-046-0220. If
the city were to define these larger units as a cottage cluster, they must apply a building
footprint maximum of less than 900 SF, however. The city could also define these larger units as
something entirely different than cottage clusters (see response to Q15 above).
Audience Follow up Question: Is Washington County looking to not allow cottage clusters to
have them on individual lots at the outset.
Participant Response: We are starting by allowing them on one lot, but we may look at
individual lots in the future.
Q51: Is the HB 2001 "vision" for cottage cluster about having them on the same lot? Or is the vision
really aimed at having them on their own lots (ultimately)? I appreciate the background—the "cottage
cluster" to be defined as a detached development,whether it's on its own lot or separate lots, but there
are so many beautiful examples of cottage developments that don't fit that.This may be related to
"redefining density" and how they are rethinking density—I would like to know more on this.
A: House Bill 2001 did not specify how the underlying lots are regulated, which is why the OARS
are drafted to allow either lot divisions or one lot. With the potential passage of SB 458, which
would allow middle housing lot divisions, it could be interpreted as a follow up to enable them to
be on their own lot.
Q52:Why would you have to have a separate set of provisions for attached cottages? Cities can be more
permissive than the rules, so why can't we just include attached as well as detached? Do we "have" to
have separate provisions?
A:First, see DLCD's recommendation provided in Q49. Second, DLCD does not intend to find a
city out of compliance with the Division 46 standards if they define cottage clusters as both
attached and detached unless there is no clear and explicit path to approval for a cottage cluster
that meets the letter of the definition in Division 46:
OAR 660-046-0020(2): "Cottage Cluster"means a grouping of no fewer than four
detached dwelling units per acre with a footprint of less than 900 square feet each that
includes a common courtyard.
However, it should be noted that DLCD's judgment on this issue, while having some legal value,
does not guarantee that LUBA or Oregon's appellate courts would uphold a local government
code with more permissive cottage cluster code provision as conforming to OAR 660-046.
Creation of a separate zoning category for"cottage cluster"units that,for example, exceed the
900 square foot footprint standard or include attached units would eliminate that legal
uncertainty.
Siting and Design Standards for Middle Housing
PP 19-0008 ATTACHMENT C/PAGE 14 OF 27
Q 53:Can a main entry for each townhouse unit be required to face the street (a common requirement
for other housing types) or would that be considered an alternative design standard?
A: This type of design standards would be acceptable and wouldn't be considered an alternative
design standard. The intent is to move from standards that scale by dwelling unit(which
disproportionately impact a quadplex as compared to a single family detached dwelling), while
still providing a path for jurisdictions that wanted to apply single family design standards to
middle housing. DLCD recommends structuring design standards to focus on form, e.g. requiring
main entryways that face the street for townhouses.
Q 54: Can design standards ever be deemed to cause unreasonable cost or delay for middle housing?
A:Division 46 doesn't define what unreasonable cost or delay is. It defines what it isn't. The
standards that apply to single-family dwellings are generally much less restrictive than what is
traditionally applied to middle housing types. If jurisdictions want to apply higher design
standards to middle housing, their options include standards in the Model Code or standards
that they demonstrate do not cause unreasonable cost or delay via the allowed Alternative Siting
and Design Standards process established in OAR 660-046-0235.
Q 55: For large cities, can duplex design standards fall under the provision of OAR 660-046-0225 "Large
Cities Design Parameters" allowing the same parameters as other middle housing types?
A:No. HB 2001 requires that a duplex be allowed on each lot or parcel that allows for the
development of a single-family detached dwelling. Whichever standards a city applies to a
detached single family dwelling represents the threshold that may be applied to a duplex in the
same zone.
Q 56: Cities cannot apply design standards to middle housing related to "Conversions."A city cannot
apply design standards to middle housing that is converted from single family detached dwelling to
middle housing. What about a triplex created by adding 2 detached units on a lot with an existing single
family dwelling?Are those new units considered conversions of or additions to an existing single family
dwelling to middle housing, and therefore, exempt from design standards?
A: The provisions of OAR 660-046-0230 are primarily intended to provide incentives for the
retention, rather than the demolition and replacement, of single-family detached dwellings in
conjunction with middle housing. This policy is meant to preserve what is often called naturally-
occurring affordable housing. If a property owner were to pursue converting or adding to an
existing single family detached dwelling to create a middle housing structure, there may be
instances where the existing structure will be out of compliance with middle housing siting and
design standards—creating a non-conforming situation. This rule prohibits requiring those
existing structures to conform to design standards.Additions to the existing structure, such as
adding two detached units to the lot, would be subject to all applicable clear and objective
design standards, so as to not increase the non-conformity of the lot beyond any non-conformity
already created by the existing structure.
Q 57:Cottage clusters created on a lot with an existing single-family dwelling-would cottage cluster
development be exempt from design standards?
PP 19-0008 ATTACHMENT C/PAGE 15 OF 27
A:Additional cottage units added to a lot with an existing single-family detached dwelling would
not be exempt from applicable design standards. The intent is to incentivize the retention of
existing dwellings, and to allow the construction of cottages around that. Cities could apply
design standards to the remainder of the cluster, including common space provisions.
Q 58:Could a standard require that each lot or parcel require an entry facing a street?
A: Yes, because this is a form-based approach, and not one that scales with the number of units
on a lot, it is allowed.
Q 59:The siting and design standards in the model code and in OAR 660-046 are clear and objective
standards. Alternatively, can a city provide a discretionary review path with additional siting or design
standards?
A: Yes, there must be a clear-and-objective path to regulate middle housing. However, there can
also be a discretionary alternative path provided for middle housing consistent with ORS
197.307(6), which allows the applicant a choice between clear and objective standards and
discretionary standards.
Q 60: Our city requires a design review for single family detached homes. It appears that this may be in
conflict with what is allowed in the Large Cities Model Code. If cities applied the same design review
requirements to middle housing as were applied to single family detached,would they be in
compliance?
A:As a reminder, the Large Cities Model code is but one way of regulating middle housing. The
Large Cities Model Code is a specific selection of standards to regulate middle housing that falls
within the range of acceptable reasonable siting/design standards that are established in OAR
660-046. Large Cities are not required to adopt the Model Code design standards or processes. It
is offered as a recommended path/guidance and also as an enforcement tool for cities who do
not comply with HB 2001 and OAR 660-046 by the June 30, 2022 deadline.
To directly answer the question posed above—yes, if a large city applies design review to single-
family residences under siting and design criteria that are clear and objective then a city may
apply the same standards to duplexes.A city has other options for applying design standards for
other forms of middle housing that are set forth in the rules
Q 61: Our city is moving towards adding design review standards for all types of housing. Is this
acceptable under HB 2001 and Division 46?
A: Yes. A city may adopt design standards for all types of housing, as long as those standards are
clear and objective(in compliance with ORS 197.307). For middle housing, the city's design
standards must comply with the adopted administrative rules in OAR 660-046. These rules
generally require that duplexes be subject to the same standards as single-family detached
dwellings, and that other forms of middle housing comply with the various standards set forth in
the administrative rules.
Q 62: For higher middle housing types,there appear to be two different paths for applying siting and
design standards: 1) apply standards as outlined in Division 46 or 2) apply alternative siting and design
standards as long as the city can provide findings that those standards do not cause unreasonable cost
PP 19-0008 ATTACHMENT C/PAGE 16 OF 27
or delay. Our city allows alley access for single family detached. Can our city allow alley access for middle
housing only through the Alternative Siting and Design process established in OAR 660-046-0235?
A:For siting standards, the analysis of which standard caused unreasonable cost and delay was
much more clear and straightforward than measuring the unreasonableness of a particular
design standard. This is why the minimum compliance standards in Division 46 are much more
defined for siting standards than they are for design standards. For siting standards, the
minimum compliance standards clearly identify the range of reasonable middle housing
standards (setbacks, building height, off-street parking, etc). In contrast, the minimum
compliance standards do not outline specific reasonable design standards. Rather, Division 46
describes how "unreasonableness"is measured. Per OAR 660-046-0225, the city may apply
design standards for middle housing (other than duplexes)in one of four ways: 1)apply design
standards that are the same as the design standards in the Large Cities Model Code, 2)apply
design standards that are less restrictive than the design standards in the Large Cities Model
Code, 3)apply the same or less restrictive design standards the city applies to single family
detached in the same zone, (note that these standards may not scale by the number of dwelling
units. They may scale by form.)or 4)apply design standards approved through the Alternative
Siting and Design Standards process as prescribed in OAR 660-046-0235.
In the scenario described in this question, because the city allows access from an alley for single
family detached homes, the city may also allow alley access for middle housing. The city would
not need to provide findings through the Alternative Siting and Design Standards process
because the standard in question is not more restrictive than what is applied to single family
detached dwellings.
Q 63:What options do cities have to differentiate development standards for cottage clusters in
different zoning districts? How can a city create parity in development types in say higher density zones
versus lower density zones?
A: The options for parity between zones are somewhat limited for cottage clusters. One option is
to allow a greater minimum number of cottages in a cottage cluster. OAR 660-046-0205(4)(d)
allows a Large City to establish a minimum number of cottages in a cottage cluster at either
three,four, or five. Other options include allowing more cottages around any single common
courtyard, incentivizing smaller cottage units in higher density zones, or reducing off-street
parking requirements in areas near transit.
Additionally, a Large City may want to reconsider whether or not to allow single family detached
homes in their higher density zones as that development type may not be congruent with the
underlying intent of a high density zoning district. As a reminder, HB 2001 and OAR 660-046 only
apply to zoning districts that are zoned for residential use and allow for the development of
single family detached. If a high density zoning district does not allow single family detached
then any standards a city applies to cottage clusters allowed in that zoning would not be subject
to compliance with OAR 660-046.
Q 64: Can our city apply a minimum lot width standard for middle housing that is larger than the current
minimum lot width standard for single family detached dwellings in the same zone?
PP 19-0008 ATTACHMENT C/PAGE 17 OF 27
A: The minimum compliance standards in OAR 660-046 contemplate the allowance of middle
housing on lots of a particular square footage. The minimum compliance standards only consider
minimum lot width in relation to cottage clusters because the development type does not lend
itself to multistory construction. The department recommends cities do not require greater
minimum lot widths for middle housing than what is required for single family detached in the
same zone. However, a city may pursue applying a different minimum lot width standard
through the OAR 660-046-0235 Alternative Siting and Design Standards process.
Q 65:Can the department provide additional clarity on which standards are considered siting and design
standards? For example, site access standards and solar setbacks and access standards.
A:Per OAR 660-046-0020:
"Siting Standard"means a standard related to the position, bulk, scale, or form of a
structure or a standard that makes land suitable for development. Siting standards
include, but are not limited to, standards that regulate perimeter setbacks, dimensions,
bulk, scale, coverage, minimum and maximum parking requirements, utilities, and public
facilities."
"Design Standard means a standard related to the arrangement, orientation, materials,
appearance, articulation, or aesthetic of features on a dwelling unit or accessory
elements on a site. Design standards include, but are not limited to, standards that
regulate entry and dwelling orientation,façade materials and appearance, window
coverage, driveways, parking configuration, pedestrian access, screening, landscaping,
and private, open, shared, community, or courtyard spaces."
Under these definitions, both site access standards and solar access and setback standards
would qualify as siting standards. However, Division 46 does not consider these two standards in
the list of middle housing siting standards in OAR 660-046-0225. If a city applies these standards
to single family detached homes, they may also apply these same or less restrictive standards to
middle housing in the same zone. If a city were interested in applying siting standards such as
these to only middle housing, the city must present findings in accordance with OAR 660-046-
0235,Alternative Siting and Design Standards, to show that they do not cause unreasonable cost
and delay to the development of middle housing and that the standards achieve and advance a
public need or interest proportional to the cumulative cost and delay imposed.
Q 66: Can standards a city currently applies to single-family detached homes be considered
"unreasonable"? Can these standards also be applied to middle housing?
A:Standards currently applied to single family detached homes are not inherently unreasonable
as long as they are clear and objective in compliance with ORS 197.307(4). For the purposes of
applying standards to middle housing, the "unreasonableness"of a particular standard is the
difference in cost and delay incurred by middle housing as compared to the cost and delay
incurred by single family detached homes in the same zone.
For example, a 50'rear yard standard on small, infill lots may not particularly incentivize the
development of any type of residential development(single family detached, middle housing, or
PP 19-0008 ATTACHMENT C/PAGE 18 OF 27
otherwise). But if the city applies that same standard across all housing types in the same zone,
the standard is no more "unreasonable"for middle housing than it is for single family detached.
It should also be noted that ORS 197.304(4)(b)states that cities apply standards that do not have
the effect, either in themselves or cumulatively, of discouraging needed housing through
unreasonable cost or delay. So it is possible that even in the scenario outlined above, a property
owner could challenge the city's 50'rear yard setback as unreasonable for all needed housing,
not just for middle housing.
Sufficient Infrastructure
Q 67:When planning for infrastructure at-large, can we assume a 3% increase for housing and
infrastructure for both medium and large cities?
A: Yes,for any measure to increase residential capacity in the UGB, you can assume up to a 3%
increase in housing. It is okay to use this same assumption for infrastructure planning.
Q 68:What are DLCD's thoughts on sufficient infrastructure language around middle housing other than
duplexes? May be onerous for individual property owners to be required to provide these analyses.
A:Infrastructure was a big consideration during rulemaking. Ultimately, the rules are structured
such that cities treat middle housing similar to other forms of development in terms of ensuring
infrastructure is available, or can be made available, to serve its demand.Just like any other type
of urban development, cities should work with developers of proposed middle housing to remedy
infrastructure constraints as they arise. The rules do not however, allow cities to categorically
remove infrastructure-constrained lands from the middle housing allowances(unless through the
IBTER process prescribed in OAR 660-046-0300). The city may require developers of middle
housing to provide reasonable and proportionate mitigation of localized infrastructure
constraints like is required for any other development proposal.
Q 69:A city must plan infrastructure capacity to accommodate densities at 15 (outside of Portland
Metro) and 20 (inside of Portland Metro) units/acre in new master planned communities. Can
conditions of approval that limit density run afoul of rules, and do you have any advice of how
consultants can approach this problem?
A:Before the subdivision stage for master planned communities, cities have to have discuss this
issue with developers. Once lots are platted, there is possibility for a developer to increase
density, but city can still retain the right to only plan for smaller infrastructure capacity if a
higher density triggers an infrastructure constraint.
Q 70:According to model code, how do cities both review sufficient infrastructure, but yet not review
and not require review of any applicant? How is an individual property owner supposed to evaluate the
infrastructure capacity?
A: There is a process that can happen from subdivision>building permit stage. It is great for
developers to specify what type of housing they will be developing, understanding it is not
binding.
PP 19-0008 ATTACHMENT C/PAGE 19 OF 27
Analysis of sufficient infrastructure is inherent in that review process, which often involves local
government engineers and public works departments. The calculation for differential in capacity
is still there. We are not adding additional processes, but reinforcing already-embedded
processes.
Q 71: How do we square our system development funding methodologies with the capacity assumptions
we're being required to make? How do we make sure we don't overcharge/undercharge and ensure we
can deliver the infrastructure system?
A: This would have to be a conversation between developer, city, and subdivider/future builder
to better understand what types of development will actually be built in the initial phase. Future
planning and increased capacity need to accommodate demand is also an important part of this
conversation.
Q 72: How about establishing future SDC rates for future infrastructure?Would you divide the cost
between #of units you realistically anticipate to show up, or an ambitious#of units you hope develops
in the future?
A:A per-unit basis for SDCs encourages infrastructure-inefficient and less affordable land uses.
Density increasingly does not correlate with actual intensity of infrastructure usage. In the long-
term, the state may need to re-think how local governments approach SDCs, and public facilities
financing for housing, which will require consideration of applicable rules/statutes for SDC
collection. In the short-term, DLCD encourages local governments to consider charging
differential SDCs for different types and sizes of dwelling units depending upon the relative
impacts of such units upon public facilities systems(such as through the findings and analyses of
these issues required by HB 2001). However, DLCD recognizes that the intent of HB 2001 was not
to require jurisdictions to change SDC calculations.
Middle housing development will complicate the collection and use of SDCs. SDCs are used to pay
for larger city-wide or area improvements to transportation, water, sewer,storm drainage, and
parks facilities. Provision of additional dwelling units beyond the traditional "one unit per lot"
calculation will increase the need and cost of many such facilities. However, the city will also be
collecting additional SDCs from the additional units beyond what was initially expected. Local
governments will need to sort out these complications in their planning for public facilities.
The rulemaking process concluded with adoption of rules for master planned communities, but
with request of staff by commission to do a study if 15 or 20 units/acre are the right numbers by
December, 2021. This study will inform the appropriate thresholds for master planned
communities and may inform future approaches to public facilities financing.
Q 73:Are exemptions to public works standards granted to single family homes that may not also be
granted to middle housing.
A: The rules require those same exemptions to be granted to duplex development, but not for
higher level middle housing.
Non-Conforming Lots of Record
PP 19-0008 ATTACHMENT C/PAGE 20 OF 27
Q 74: Regarding whether cities are required to allow Middle Housing on small non-conforming lots of
records. Certainly duplexes must be allowed on these lots, but are cities required to allow higher middle
housing types on non-conforming lots of record that do not meet the minimum lot size requirements for
the housing type?
A: There is not an expectation that cities permit higher level middle housing on non-conforming
lots of record especially those that do not meet the underlying minimum lot size requirements.
Q 75: Further clarifying-can a city prohibit certain higher middle housing types based on the lot size, or
that it wouldn't be allowed on certain sized lots based on the siting standards?
A:Lot size is a siting standard under OAR 660-046-0220. The standard in OAR allows a city to
establish certain minimum lot size requirements for higher level middle housing. If a property
owner proposes a triplex on a small nonconforming lot of record that does not achieve the
minimum lot size requirement for triplexes in the zone, the rules would allow the city to expected
to permit the development require that a lot be of a certain size before so the answer would be
'yes'to both.
Q 76: I'd like to ask a follow up question to this question and response: Q 28: Do the requirements of HB
2001 apply to a residential zone that allows middle housing types as permitted outright, but single
family detached are conditionally allowed? A: Zoning districts that are primarily residential in nature
should not require a conditional use permit for single family detached or any other housing type. Per
ORS 197.307(4), all residential developments must be reviewed using clear and objective standards. In
this scenario, it is advised that the city first determine whether to 1) allow single family detached in that
zoning district outright via a clear and objective path in compliance with ORS 197.307(4) or 2) not allow
single family detached all together.
If the city chooses option 1, the city must also allow middle housing in that zoning district pursuant to
Division 46. If the zoning district in question is not primarily residential in nature, it is not subject to the
requirements of HB 2001 or Division 46.
A:Correct. ORS 197.307 was amended such that clear and objective requirements apply more
broadly to "housing', rather than just "needed housing". DLCD is working through the specific
interpretation considerations, including zones that allow less desirable use types through a non-
clear and objective process(e.g. single family in a high density zone).
Gentrification/Displacement
Q 77: One of the issues the city has run into is whether Middle Housing allowances lead to displacement
in lower-income neighborhoods. Does DLCD staff have guidance to offer on this issue?The effect of
adding more housing supply offsets local displacement, but what about situations where the areas
where middle housing is functionally allowed are predominately lower income, because higher-income
areas have existing CC&Rs that preclude redevelopment.
A: This was a significant conversation during the rulemaking process, specifically the "in areas"
conversation. Ultimately, the rulemaking process did not go the route of exempting areas from
middle housing over fears of displacement. The rationale is that by allowing middle housing in all
areas, the associated benefit of increased housing supply offsets the potential displacement risk.
PP 19-0008 ATTACHMENT C/PAGE 21 OF 27
Additionally, gentrification and displacement must be addressed as part of comprehensive long-
term strategies identified in the housing production strategy(HPS). The department is currently
preparing two case studies and a toolkit on gentrification and ant-displacement to provide
guidance for cities on how to consider gentrification and displacement in light of an HPS. This
guidance will be available in late summer 2021.
Middle Housing Conversions
Q78: Per OAR 660-046-0225(2), cities cannot apply design standards to middle housing created through
conversion of existing SFDs. However, if an overlay zone's existing design standards apply even to single-
family remodels would it be ok to apply the design standards to middle housing conversions under the
existing remodel language?
A: The intent of OAR 660-046-0225(2)is to incentivize the retention and conversion of existing
housing over demolition and redevelopment. OAR 660-046-0230 requires cities to allow
additions to or conversions of existing single-family dwellings into Middle Housing, provided that
it does not increase nonconformance with applicable clear and objective standards(unless
otherwise allowed by the City's code). Therefore, a City would be permitted to apply design
standards to the portion of a conversion that would increase nonconformance with applicable
design standards(e.g. new building facade, entrances, etc.), but not the portions that would not
increase nonconformance (e.g. existing façade, entrances, etc.).
Q79: On the conversion of a single-family detached dwelling to Middle Housing—is there a difference
between duplexes and tri-or quadplexes?
A:Similar to tri-and quadplexes, duplex conversions must be allowed if the conversion does not
increase nonconformance with applicable clear and objective standards. Duplexes do not have
the same restriction on design standards applied to conversions outlined in OAR 660-046-
0225(2), so cities may apply the same design standards to a duplex conversion that would apply
to a single-family detached conversion or remodel.
Q80: Regarding middle housing conversion standards in OAR 660-46-0230(1), can a city prohibit the
conversion of a single family detached home to middle housing (triplexes and quads) if the subject lot
doesn't meet the minimum lot size?
A: Yes. Conversions of single family detached homes to middle housing should not increase the
nonconformity of the development to current code standards. Cities cannot require a conversion
of a single family detached homes to middle housing comply with specific design standards.
SB 458
Senate Bill 458 requires cities to allow lot divisions for Middle Housing.This bill has passed and has been
signed by the Governor.
- The bill requires cities to allow middle housing lot divisions for any HB 2001 middle housing type
built in accordance with ORS 197.758.A city must allow middle housing lot divisions to be
permitted on or after June 30, 2022.
- A tentative plan for a middle housing division must include certain things including:
PP 19-0008 ATTACHMENT C/PAGE 22 OF 27
o Separate utilities
o Easements necessary for utilities, pedestrian access, common use areas or shared
building elements, dedicated driveways/parking, and dedicated common area
o One dwelling unit per each resulting lot or parcel (except common areas)
o Demonstration that the buildings will meet structural code
- Cities retain the ability to require or condition certain things, including further division
limitations, street frontage improvements, right-of-way dedication (if original parcel did not).
They may not require driveway,vehicle access, parking, or min/max street frontage for each lot,
or things inconsistent with HB 2001 (including Division 046). Nothing in SB 458 prohibits cities
from requiring final plat approval of the lots before approving building permits.
Q81: If a jurisdiction wants to incorporate lot division standards now, we would be more lenient than
state law in that regard. I am assuming that is okay, but I want to know how that coincides with the
department's position with regard to attached cottage clusters.
A:A local jurisdiction may incorporate lot division standards for Middle Housing before June 30,
2022. On attached cottage clusters-the department will not object if you have a more lenient
position than what is provided in state law, but in speaking with the DOJ, the cottage cluster
provisions have two elements that are specified in the definition in statute—that the units are
detached and that the building footprints are less than 900 square feet.A city opens themselves
to legal ambiguity and challenge adopting a different definition for cottage clusters, which
would be easily solved if they had a second category that allowed attached cottage cluster
configurations (e.g. "cluster housing").
Q82: On the timing of SB 458—if it applies to housing built after June 30, 2022—Does that mean that
cities implementing code should incorporate these standards before the deadline?
A:An important point of clarification-SB 458 and the expedited land division process only
applies to middle housing lot division that are permitted on or after June 30, 2022. The bill does
not specify if the middle housing development must be permitted on or after June 30, 2022.
On planning assistance—DLCD will consider jurisdictions that want to incorporate middle
housing lot divisions as part of their planning assistance request. However, DLCD's top priority
will be funding projects that complete code amendments required to comply with House Bill
2001 (ORS 197.758)and OAR Chapter 660, Division 046.
Q83: On SB 458, you mentioned requiring street frontage improvements. We are trying to figure this out
for both HB 2001 and this new type of subdivision. If we have to go to a Type I for approval of these, we
don't have the ability to do anything discretionary.
A: The public works standards, middle housing, and middle housing land divisions intersection
will be one that will take some time to think through. SB 458 is fairly prescriptive as to the
process by which Middle Housing lot division may happen via the expedited land division process.
Please see the guidance document DLCD has prepared and attached to this document for more
details on this topic.
Q84: Do land divisions required in SB 458 impact the definitions of Middle Housing types, specifically
between plexes (i.e. multiple units on one lot or parcel) and townhouses (i.e. attached units on
individual lots or parcels).
PP 19-0008 ATTACHMENT C/PAGE 23 OF 27
A:SB 458 does not inherently change the definitions of Division 046. Section 2(5)of SB 458
specifies: "The type of middle housing developed on the original parcel is not altered by a middle
housing land division."
Participant Comment: The definitions in Division 046 do change though, since the definition of a
quadplex for example is "four units on a single lot or parcel,"and that won't be true after the
middle housing land division.
LOC: To provide LOC perspective-the intent on definitions is that a developer will have choice on
how to move forward with what type of middle housing development they apply for. If you are
applying for a fourplex with four lots, that is what it will be when you apply for a land division
and you will have ability to denote this in the record(i.e. those lots cannot cascade into more lot
divisions).
Q85: Does SB 458 apply to townhomes?
A:SB 458 applies to all Middle Housing types allowed under ORS 197.758(2)and(3). This
includes townhouses. However, this may be moot as townhouses need to undergo the lot division
process as part of the development review process.
Participant Comment: However, if a developer chooses to call a townhouse development a plex
with a middle housing land division to avoid minimum lot width requirements etc.
Staff Response:SB 458 expressly prohibits the application of minimum street frontage
requirements as part of the land division process. Planners will need to think carefully about the
underlying economic incentives at play. Please see the guidance document DLCD has prepared
and attached to this document for more details on this topic.
Q86: It would be good for DLCD to think through more the idea that SB 458 applies to townhouses.
There are some big implications-again particularly for frontage improvements.With SB 458, every plex
will become townhouses, but without the broader land division requirements.
A: Please see the guidance document DLCD has prepared and attached to this document for
more details on this topic.
Participant Comment: It's also interesting to think through whether SB 458 incentivizes side-by-
side plexes, leading to multistory construction, with implications for accessibility.
Q87:SB 458 seems to require cities to process Middle Housing lot divisions through the Expedited Land
Division process in ORS 197.360. Will guidance be provided on this?
A: Please see the guidance document DLCD has prepared and attached to this document for
more details on this topic.
Q88: Some cities want to provide an option for some units to be divided, which is possible under a
standard division, but not under an SB 458 land division.
A: It is correct that SB 458 requires each unit to be on its own lot, though it may be possible for a
jurisdiction to establish an alternative path that allows the lot division configuration described,
provided that an SB 458 lot division pathway is available.
PP 19-0008 ATTACHMENT C/PAGE 24 OF 27
Q89: On SB 458, and the overlap between detached duplexes and single-family dwellings with a
detached ADU. If someone has one, can they call it a duplex and put it on a separate lot.
A:If something was approved in the City's records as an ADU, SB 458 would not apply as it only
applies to Middle Housing as defined in ORS 197.758 and OAR 660-046.
Q90: On the notion of city's adopting middle housing lot divisions for existing middle housing.The way I
understand it is we would have to create a different process to do this, because the expedited land
division process comes with some protections.
A: This appears to be the case—previously existing developments wouldn't necessarily qualify
under SB 458 and any potential lot division of that development would not be entitled to the
expedited land division process. It may be possible for an existing Middle Housing development
to demonstrate substantial compliance with HB 2001, which would qualify it for a lot division
under SB 458, but this would be an unlikely scenario.
Q91: Regarding SB 458,the bill limits conditions of approval for a land division. How can a jurisdiction
condition and require street frontage improvements? Can they withhold final plat? Occupancy?
Logistically, how do you see that working?
**As a reminder, DLCD's SB 458 guidance was sent out the week prior to this meeting. Feel free to reach
out if you haven't received it. It is also posted on the DLCD HB 2001 webpage.**
A: The street frontage timing scheme is still being figured out. DLCD has included a more detailed
analysis of the street frontage aspect of SB 458 and for middle housing allowances as an
attachment to this written response document.
In short, the options for land division platting can happen both before, at the same time, or after
building permits. Nothing in SB 458 prohibits final plat before building permits are approved.
Each city can determine how to structure the timing to make the most sense for their process.
Q92: Does an applicant need to build a middle housing type before it is eligible for a land division under
SB 458?
A:No. The middle housing land division process can also take place concurrent to, or before,
building permit approval.
Q93: There is a requirement that we apply the same procedural process for middle housing as we do for
single family detached. When someone proposes to create a lot for a single-family detached
development the land division is completed as part of the platting process. Under the requirements in
OAR, someone who proposes to build middle housing on a lot will be reviewed through the signle family
detached requirements (i.e., plan check). But the single family detached plan check process doesn't line
up with multi-family development. Has there been any further thought on this process? Can someone
go back for a land division on lot that created a single family detached house?
A:SB 458 only applies to land divisions that will create lots for middle housing development. It
does not apply to single family detached related land divisions. Also, the process of reviewing the
middle housing development proposal is separate and distinct from reviewing an application for
a middle housing land division. It is correct to state that if no land division is proposed, a city is
PP 19-0008 ATTACHMENT C/PAGE 25 OF 27
required to apply the same zoning and planning review process to both single family detached
and middle housing, whether plan check or otherwise.
If a property owner proposes to divide a parent parcel to prepare for middle housing
development, the city must use the expedited land division process to review the land division
proposal. Still, the planning and zoning review of the actual development most be the same
process applied to single family detached. SB 458 allows a local government to require final
platting before approving building permits.
Q94:To do frontage improvements, the city needs to apply a Type I or II process.You can't just do it
with a building permit.Also, for middle housing, treating middle housing the same as single-family might
prohibit the planning process because there is none yet.
A: The infrastructure guidance provided as an attachment to this document responds to this
question in part.
Cities that offer public works exemptions to single-family detached developments are required to
offer those same exemptions to duplexes. For other middle housing types developed in a non-
land division scenario, the city can require that the applicant provide or ensure that there exists
"sufficient infrastructure"to support the development. DLCD encourages cities to provide the
same public works exemptions offered to infill single-family detached development to infill
middle housing development especially if those exemptions are based on factors such as
infrastructure impact, square footage,project valuation, rather than the number of units on a
lot.
If the city requires single-family detached developments to provide frontage improvements in a
non-land division scenario, the city is free to utilize this same process for middle housing
developments.
If an applicant were proposing a middle housing land division, the city could require street
frontage improvements as allowed in SB 458.
Q95: Is there a way to incorporate an early assistance/pre-application process to work with applicant for
middle housing, prior to building permits coming in?
A: Yes, DLCD would encourage this, especially if requiring frontage improvements.
Q96: In SB 458, does the term "original lot or parcel" refer to the lot or parcel that is being proposed to
be divided as a middle housing land division?We ask because the wording of the bill is unclear as to
whether the resultant lots or parcels create increases in nonconformity with the original approval. We
are trying to determine whether it is necessary to create clear distinctions between the "original" lot
and the resultant middle housing lots.
A: The term does refer to the lot proposed to be divided for a middle housing land division, not
the resultant lots. We agree that the wording of the bill creates a challenge in terms of the
distinction between the "original"and "resultant"lots or parcels. Certainly, the middle housing
lot division would create nonconformities with standards such as minimum lot size, setbacks, and
lot coverage, as they cannot be applied as approval criteria under SB 458. However, we think
there are a few approaches a local jurisdiction could consider to make this relationship clearer
and avoid inconsistencies, including specifying "parent/original"and"child/resultant"lots or
through notation of SB 458 lot divisions in the final plat.
PP 19-0008 ATTACHMENT C/PAGE 26 OF 27
Q97: How many jurisdictions are considering amending their codes to incorporate SB 458 versus just
referencing the amended ORS?We debated whether to include a reference, but through discussion,we
think it would be better to incorporate it into the code.
Chat Discussion: Washington County and Eugene will incorporate SB 458 into their lot division
code.
Chat Discussion:Are any other local governments talking to the county surveyors about what
these plats will look like(i.e. parcel naming, etc)?[There were no specific responses to this
question]
Q98: Senate Bill 458 lists two conditions of approval that cities may add as conditions of approval,
including prohibiting further division of resulting lots and requiring notation on the final plat. Are those
the only conditions of approval that cities can apply, or are other conditions allowable as long as they
don't violate other aspects of SB 458?
A: Cities are permitted to apply conditions of approval to satisfy approval criteria related to the
SB 458 land division but would not be permitted to functionally apply approval criteria not
permitted under SB 458.
Follow-up: If State law or County survey rules prohibit placing administrative notation on final plat, what
are options for implementing SB 458 condition related to notation on final plat?
A: Notation of a SB 458 land division is an option, not a requirement.
Q99: If we allow shared laterals for duplexes, does SB 458 allow us to require separate laterals?
A: Yes, the bill requires separate utilities for each lot to be eligible for a middle housing land
division.
Q100: On the frontage improvement question, we've begun getting questions from developers.
A: DLCD has published guidance on the confluence of middle housing, SB 458, and frontage
improvements in conjunction with the July 2021 Open Forum written responses. Cities that have
specific questions not addressed in that guidance should reach out their Regional Representative
or DLCD Housing staff.
PP 19-0008 ATTACHMENT C/PAGE 27 OF 27
AGENDA ITEM 4
SEPTEMBER 23-24, 2021-LCDC MEETING
ATTACHMENT A
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?
PP 19-0008 ATTACHMENT D/PAGE 1 OF 5
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?
PP 19-0008 ATTACHMENT D/PAGE 2 OF 5
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?
PP 19-0008 ATTACHMENT D/PAGE 3 OF 5
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.
PP 19-0008 ATTACHMENT D/PAGE 4 OF 5
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.
PP 19-0008 ATTACHMENT D/PAGE 5 OF 5
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
PP 19-0008 ATTACH E/PAGE 1 OF 6
(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
PP 19-0008 ATTACH E/PAGE 2 OF 6
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
PP 19-0008 ATTACH E/PAGE 3 OF 6
(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
PP 19-0008 ATTACH E/PAGE 4 OF 6
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 E/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 E/PAGE 6 OF 6
:-VA D CITY ATTORNEY' S OFFICE
U O
OREG0:
January 11, 2022
Ms. Carole Ockert
First Addition Neighbors—Forest Hills Neighborhood Association
Via email: fanfh-carole@nwlink.com
Re: Middle Housing Land Divisions—SB 458
Dear Ms. Ockert:
On behalf of the First Addition Neighbors—Forest Hills (FAN-FH) Neighborhood Association,you ask how
SB 4581's middle housing land division procedure will be translated into the procedures of Lake Oswego
land use proceedings. For your questions, I think the operative subsection of SB 458 is subsection 4, as
it included middle housing land divisions within the Expedited Land Division (ELD) statutes, ORS 197.360
- .380:
(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.
(d) May not subject the application to procedures, ordinances or regulations adopted under ORS
92.044 or 92.046 that are inconsistent with this section or ORS 197.360 to 197.380.
By way of short background, and as you may be familiar,the ELD process is not new. It was first adopted
in 1995 as an Opt-in process that applicants for eligible land divisions'could avail themselves, in lieu of
proceeding under the City's land use procedure. In 2015, the Legislature changed the ELD process to an
Opt-out, meaning that eligible land division applications are required to proceed under the statutory
ELD procedures unless the applicant elects to proceed under the City's land use procedures. The City
has processed land divisions under the ELD procedures; I don't know how many. The first (and only,to
my memory) ELD appeal was filed by the Forest Highlands Neighborhood Association (LU 18-0028).
It should be kept in mind that the ELD is an alternative procedure for review and appeals of eligible land
divisions. Whether the land division application is reviewed under the City's land use procedures or
under the statutory ELD procedures,the criteria for land division approval remains the same.
1 https://olis.oregonlesislature.gov/liz/2021R1/Downloads/MeasureDocument/SB0458/Enrolled
2 In summary: residentially-zoned and residentially-used land, inside the Urban Growth Boundary, not on Goal 5
Historic Lands,Sensitive Lands or Open Spaces, and the land division meets street connectivity requirements and
provides either 80%or more of maximum density or provides affordable housing. See ORS 197.360(1)(A-E).
503-635-0225 380 A AVENUE PO Box 369 LAKE OSWEGO, OR 97034 WWW.LAKEOSWEGO.CITY
PP 19-0008 ATTACHMENT F/PAGE 1 OF 15
Page 2 of 6
The ELD procedures under ORS 197.365 et seq. are a statutory alternative to the Lake Oswego land use
procedures in LOC Ch. 50, which are based on ORS 197.160 et seq. and ORS 197.763.
You call attention to ORS 197.375(1)(a), (2), and (6)(full statute attached), and ask the following
questions, which I respond to following each question:
Question 1. For LO, would the DRC be our'hearings officer'?
The ELD procedures uses the term "referee." ORS 197.375(2). The Development Review Commission is
not an appointed ELD referee for the City. The City has an ELD referee,Joseph Turner, under an on-call
contract. Mr.Turner was appointed by the City Council as our ELD referee on May 2, 2017. An excerpt
of the Council packet is attached, for your information.
Question 2. Would our current fee waiver for neighborhood associations cover the maximum of
$500?
The deposit for costs on appeal is $300. ORS 197.375(1)(a). The "costs" are the referee's fee and other
City costs. Upon conclusion of the appeal, if the appellant "materially improves his or her position from
the decision," the appellant's $300 deposit"shall be refunded." If the appellant does not materially
improve his or her position from the decision,the referee "shall assess" up to$500 costs. Any
difference between the assessed costs and the referee's fee and other City costs is borne by the City.
ORS 197.375(6).
Neither the Master Fees Schedule nor the ELD statute, which supersedes the Community Development
code and Master Fee Schedule, authorizes waivers for the appeal deposit for neighborhood association
appeals of ELDs. Because the City is unable to require verification of a neighborhood association's valid
appeal in for ELDs,the City is not in a position to waive the appeal deposit for neighborhood association
appeals of ELDs.
In regards to any costs over the$300 deposit and up to the maximum $500 award for costs, whether the
City proceeds with efforts to collect that difference is, at present, a decision to be made then by the City
Manager.
Question 3. And are there other pieces [of the ELD process] that are glaringly important that you
could point out to me.
The ELD procedure is a statutory alternative procedure to consider land division applications. It is up to
the applicant to decide whether to not have their application considered under the ELD process. However,
SB 458 specifies that a city or county "shall apply the procedures under ORS 197.360 to 197.380".
According to the State Department of Land Conservation and Development's (DLCD's) Senate Bill 458
Guidance (Updated July 8, 2021)3, "This means that a city or county cannot require a middle housing land
division to undergo a standard land division pathway". As you can see from ORS 197.375, as compared
to the City's land use procedure,with appeals to the Oregon Land Board of Appeals(LUBA)and the Oregon
Court of Appeal,there are differences:
3 See the DLCD Fact Sheet at: https://www.oregon.gov/Icd/UP/Documents/SB 458 Guidance.pdf
PP 19-0008 ATTACHMENT F/PAGE 2 OF 15
Page 3 of 6
• The time to determine if the application is complete: 21 days v. 30 days.
• The mailed notice requirement: 100 ft. v. 300 ft. (however, as a Planning Dept. policy, the City
endeavors to provide courtesy notice beyond the 100 ft. in the manner similar to the City's land
use notice requirements).
• The manner of consideration of the application is staff decision only (no public hearing is
permitted); no internal appeal to DRC or Council.
• Time for City final (staff) decision: 63 days v. 120 days.
• Following the staff decision, the time for appeal is 14 days to an ELD referee, rather than 21 days
to LUBA.
• On ELD appeal:
o The referee notifies the parties within 7 days from the filing of the appeal of the manner
in which persons may participate in the proceeding, e.g., whether to provide opportunity
for written comment only or whether an in-person hearing will be held.
o The scope of appeal is limited in the same manner as an appeal to the Oregon Land Use
Board of Appeals,to:
• (A) ..violation of the substantive provisions of the applicable land use regulations;
• (B) .. unconstitutionality of the decision;
• (C) .. the application is not eligible for review under ORS 197.360 to 197.380 and
should be reviewed as a land use decision or limited land use decision; or
• (D) ..the parties'substantive rights have been substantially prejudiced by an error
in procedure by the local government.
o The scope of comments by non-appellants is limited only to those issues that they
previously raised in their comments.
o The referee is strongly incentivized to issue a decision within 42 days from the filing of the
appeal to issue a decision: no compensation is paid to the referee if the decision is issued
after 42 days.
• Appeal of the referee's decision:
o Is to the Oregon Court of Appeals, not the Oregon Land Use Board of Appeals.
o Reversal or remand by the Court of Appeals is limited:
• That the decision does not concern an expedited land division as described in ORS
197.360 and the appellant raised this issue in proceedings before the referee;
• That there is a basis to vacate the decision as described in ORS 36.705 (1)(a) to
(d)4, or a basis for modification or correction of an award as described in ORS
36.710; or
• The decision is unconstitutional.
//
//
4 httos://www.oregonlegislature.gov/bills laws/ors/ors036.html
PP 19-0008 ATTACHMENT F/PAGE 3 OF 15
Page 4 of 6
I cannot give legal advice to non-City entities and thus refrain for characterizing whether any of these are
"glaringly important" to the FAN-FH Neighborhood Association or opining further as to the legal
requirements and effects of the ELD process on the FAN-FH Neighborhood Association participation in
Expedited Land Division procedures.
Sincerely,
Digitally signed by Evan P.Boone
_ DN cr=Evan P.Boone,o=ity of Lake
Oswego,ou�ity Attomey's Office,
= }' email boone@cl.oswego.or.us,c=US
Date:2022.01.11 1735:16.08'00'
Evan Boone
Deputy City Attorney
Enc: May 2, 2017 Agenda Packet(excerpt)
cc: Scot Siegel,Community Development Director
Jessica Numanoglu, Planning Manager
Erik Olson,Senior Planner
•
PP 19-0008 ATTACHMENT F/PAGE 4 OF 15
Page 5 of 6
ORS 197.375 Appeal of decision on application for expedited land division; notice requirements;
standards for review; procedure;costs. (1)An appeal of a decision made under ORS 197.360 and
197.365 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 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 procedure
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.The referee shall 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 applicant,
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 submitted by that person or organization.
The referee may use any procedure for decision-making consistent with the interests of the parties to
ensure a fair opportunity to present information and 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 presented to the local government.
(4)(a)The referee shall apply the substantive requirements of the local government's land use
regulations and ORS 197.360. If the referee determines that the application does not qualify as an
expedited land division as described in ORS 197.360,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)The referee may not reduce the density of the land division application.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 government 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 compensation 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,
PP 19-0008 ATTACHMENT F/PAGE 5 OF 15
Page 6 of 6
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.
(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 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.
PP 19-0008 ATTACHMENT F/PAGE 6 OF 15
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AGENDA
`ram Revised on April 27• CITY COUNCIL MEETING
to include item 10.2,
v 0— and on April 28 to include May 2, 2017
�o a an Executive Session 6:30 p.m.
_ J Council Chambers, City Hall
Contact: Anne-Marie Simpson, City Recorder
Email: asimpson@lakeoswego.city
Phone: 503-534-4225
Also published on the internet at: www.lakeoswego.city. The meeting location is accessible to persons
with disabilities.To request accommodations, please contact the City Manager's Office at 503-534-4225
48 hours before the meeting.
1. CALL TO ORDER
2. ROLL CALL
3. PLEDGE OF ALLEGIANCE
4. PRESENTATIONS
4.1 Youth Action Council
4.2 Introduction of the Youth Leadership Council
4.3 Historic Preservation Merit Awards
5. CONSENT AGENDA—Full Council Approval
• The consent agenda allows the City Council to consider items that require no discussion.
• An item may only be discussed if it is pulled from the consent agenda.
• The City Council makes one motion covering all items included in the consent agenda.
Motion: Move to adopt the consent agenda.
5.1 Approval of Meeting Minutes
5.1.1 March 21, 2017, Regular Meeting Minutes
5.1.2 April 4, 2017, Regular Meeting Minutes
Motion: Move to approve minutes as written.
5.2 Resolution 17-16,A Resolution of the City Council of the City of Lake Oswego Declaring a
Public Necessity to Acquire a Permanent Utility Easement at 16463 Boones Ferry Road
503.635.0215 380 A Avenue PO Box 369 Lake Oswego, OR 97034 www.lakeoswego.city
PP 19-0008 ATTACHMENT F/PAGE 8 OF 15
Page 2
and Exercise the Power of Eminent Domain (Boones Ferry Road Project)
Motion: Move to adopt Resolution 17-16.
5.3 Boundary Line Agreement correcting the property line between Hazelia Field/ Luscher
Farm and the property to the north.
Motion: Move to authorize the City Manager to consent to the property line, as established
and corrected by a recent boundary survey, between the proposed south line of the Profile
Properties, LLC. property(Tax Lot 02600 and 02700), and the previously established north
line of Hazelia Field(Tax Lot 02800)and Luscher Farm (Tax Lot 03001)by Boundary Line
Agreement.
6. CONSENT AGENDA—Councilor Approval
6.1 Resolution 17-14,A Resolution of the City Councilors of the City of Lake Oswego Approving
Appointments to the Parks, Recreation & Natural Resources Advisory Board
Motion:Adopt Resolution 17-14.
6.2 Resolution 17-15,A Resolution of the City Councilors of the City of Lake Oswego Approving
an Appointment to the Development Review Commission
Motion:Adopt Resolution 17-15.
7. ITEMS REMOVED FROM THE CONSENT AGENDA
8. CITIZEN COMMENT(15 minutes)
The purpose of citizen comment is to allow citizens to present information or raise an issue
regarding items not on the agenda or regarding agenda items that do not include a public
hearing. A time limit of three minutes per individual shall apply.
8.1 Prior Citizen Comment Follow-Up
9. PUBLIC HEARINGS
9.1 Ordinance 2734, An Ordinance of the City of Lake Oswego Adopting the Uplands
Neighborhood Plan into the Neighborhood and Special District Plans Volume of the
Comprehensive Plan; Amending the Transportation System Plan to Expand a Pathway
Project;Amending the Community Development Code to Add the Uplands R-10 Overlay
District (LOC 50.05.012); and Adopting Findings (LU17-0001)
Motion: Move to approve LU 17-0001, and to enact Ordinance 2734.
Public Hearing Process:
1. Review of hearing procedure by David Powell, City Attorney
2. Staff Report by Sarah Selden, Senior Planner
3. Testimony:the following time limits shall be observed, but may be
503.635-0215 380 A Avenue PO Box 369 Lake Oswego, OR 97034 www.lakeoswego.city
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Page 3
changed by the Council: 10 minutes for representatives of recognized
neighborhood associations, homeowner associations, government
agencies, or other incorporated public interest organizations; 5 minutes
per individual
4. Questions of Staff
10. COUNCIL BUSINESS
10.1 Appointment of Expedited Land Division Referee
Motion: Move to appoint Joe Turner as a referee for appeals of expedited land division
decisions.
EXECUTIVE SESSION: Under authority of ORS 192.660 (2)(f)to consider records that are
exempt by law from public inspection.
10.2 Stafford Urban Reserve IGA
11. INFORMATION FROM COUNCIL
12. REPORTS OF OFFICERS
13. ADJOURNMENT
503.635-0215 380 A Avenue PO Box 369 Lake Oswego, OR 97034 www.lakeoswego.city
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10.1
(cc—C—A 4 COUNCIL REPORT
Vim-
001r
OREGO
TO: Kent Studebaker, Mayor
Members of the City Council
FROM: David Powell, City Attorney
Scott Lazenby, City Manager
SUBJECT: Appointment of Expedited Land Division Referee
DATE: April 24, 2017
ACTION
Appoint Joseph Turner as a referee for appeals of expedited land divisions.
SUGGESTED MOTION
Move to appoint Joseph Turner as a referee for appeals of expedited land division
decisions. INTRODUCTION/BACKGROUND
Typically, partitions and subdivisions are reviewed and approved under the Community
Development Code as follows:
• Partitions: staff decision; appeal to DRC/public hearing; appeal to Council.
• Subdivisions: DRC public hearing; appeal to Council.
Appeals following the Council decision are to the Land Use Board of Appeals, Oregon Court of
Appeals, and Oregon Supreme Court.
In 1995, the Oregon Legislature mandated an alternative expedited land division review process
under ORS 197.360 et seq. for any partition or subdivision that meets the following
requirements:
"(A) Includes only land that is zoned for residential uses and is within an urban growth
boundary.
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Page 2
(B) Is solely for the purposes of residential use, including recreational or open space
uses accessory to residential use.
(C) Does not provide for dwellings or accessory buildings to be located on [Sensitive
Lands or Willamette River Greenway];
(D) Satisfies [the City's] minimum street or other right-of-way connectivity standards ....;
(E) Will result in development that either:
(i) Creates enough lots or parcels to allow building residential units at 80 percent
or more of the maximum net density permitted by the zoning designation of the
site; or
(ii) Will be sold or rented to households with incomes below 120 percent of the
median family income for the county in which the project is built."
That process requires staff to make a decision within 63 days from the date the application is
complete.
Any person challenging the staff decision may file an appeal within 14 days, including a $300
deposit. The appeal must be heard by a referee appointed by the City, instead of being heard
by the Development Review Commission. The referee cannot be an employee or official of the
City. ORS 197.375(2). The referee must issue a decision within 42 days after the appeal is filed.
A public hearing is not required. Instead the process is determined by the referee, who may
use "any procedure for decision-making consistent with the interests of the parties to ensure a
fair opportunity to present information and argument." ORS 197.375(3). If the appealing party
does not improve its position, additional costs of up to $500 may be assessed. If the party
improves its position, the deposit must be returned. ORS 197.375(6).
An appeal of the referee's decision goes directly to the Oregon Court of Appeals, bypassing the
City Council and the Land Use Board of Appeals. ORS 197.375(7), (8).
To date, most land division applicants have not elected to use the expedited land division
process. The only Lake Oswego expedited land division appeal occurred approximately 10
years ago. However, in 2015, the Oregon Legislature changed the law to require applicants to
expressly "opt out" of the expedited land division process. As a result, the expedited process
may become more common.
DISCUSSION
There is a three-lot (with two flag lots) partition application currently pending under the
expedited land division process (LU 17-0018). Planning staff expects to issue its decision on
May 4th. Staff believes there is potential for an appeal. In light of the timelines required for
conducting the appeal, there is a need to promptly designate an expedited land division
referee.
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Page 3
The City Attorney's Office asked surrounding jurisdictions to identify persons they use as land
use hearings officers. Although not required, all contacted jurisdictions use attorneys for their
hearings officers. Given the fact that an appeal from the referee's decision is made directly to
the Oregon Court of Appeals, the designation of a person who is skilled in hearing and deciding
land use matters, and writing findings of fact and conclusions of law to support the decision is
recommended. The City Attorney's Office obtained statements of experience from three
persons recommended by other jurisdictions.
The City Attorney and City Manager have reviewed the three statements of experience and fee
rates and recommend that Joseph Turner be appointed as the City's expedited land division
referee. Mr. Turner's practice is limited to acting as a hearings officer. As the attached
statement of interest details, he works for numerous jurisdictions in Oregon and Washington.
His hourly rate of$190 is the lowest rate among the three attorneys contacted.
RECOMMENDATION
Appoint Joseph Turner as an expedited land division referee.
ATTACHMENT
• Joseph Turner's Statement of Experience
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PP 19-0008 ATTACHMENT F/PAGE 13 OF 15
ATTACHMENT
M. JOSEPH TURNER, EsQ.
MEMBER OF THE OREGON AND WASHINGTON STATE BARS AND
AMERICAN INSTITUTE OF CERTIFIED PLANNERS
30439 S.E. Jackson Rd., Suite 200 • Gresham, Oregon 97080
Telephone (503) 663-7092 • Facsimile (503) 663-7289 • E-mail:jtpc@frontier.com
EXPERIENCE
Planner and Attorney at Law •
JOE TURNER P.C.,MUNICIPAL HEARINGS OFFICIAL, Gresham, OR(2004-current).
I serve as a land use and enforcement hearings official for the following jurisdictions in
Oregon and Washington.
In Oregon: City of Gresham (2000-current) • Washington County (2006-2007) • City of
Tigard (2004-current) • City of Sherwood (2009-current) • Clackamas County Animal
Control(2009-current) • Clackamas County Sheriff (2009-current) • Clackamas County Land
Use (1998-2004, 2006 &Alternate 2009-current) • Metro (2008-current) • City of Hillsboro (2015-
current) • Multnomah County (2015-current) • City of Portland (2015-current) • City of Happy
Valley(2016-current) • City of Fairview(1997-2002)
In Washington: Clark County(2000-current) • City of La Center(2001-current) •
City of Vancouver(2001-2010&Alternate 2010-current) • City of Washougal(2003-current) •
City of Camas (2006-current) • City of Woodland(2009-current) • City of Ridgefield(2009-
current) • City of Battle Ground(2011-current) • City of North Bonneville (2015-current) •
City of Stevenson (2015-current)• Skamania County(Alternate 2015-current)
LARRY EPSTEIN,PC, Portland, OR(1995 -2004).
I represented public and private clients in Oregon and Washington in land use matters as
well as serving as hearings official in many of the jurisdictions listed above.
EDUCATION
Bachelor of Science(Biology) • Oregon State University, Corvallis, OR(1986).
Juris Doctor cum laude•Northwestern School of Law of Lewis & Clark College, Portland
OR(1993).
Master of Urban and Regional Planning• Portland State University(2000).
AFFILIATIONS
Oregon State Bar Association Washington State Bar Association
American Institute of Certified Planners
PP 19-0008 ATTACHMENT F/PAGE 14 OF 15
Hearings Conducted by
Joe Turner
(Through December 2015)
Washington Jurisdictions Oregon Jurisdictions
to
r`
YV V
U � o -0
to �.
u a 3 as H 3 4
Land 38 116 44 22 8 3 3 8 1 16 17 16 29 5 1
Divisions/PUDs
CUP 17 24 7 23 3 1 3 1 57 3 25 11 3 1 1
Rezone 5 2 2 2 12 2 2
Temporary 1 14 1
Permit
Home 1 9 1
Occupation
Design/Site Plan 11 5 3 1 1 2 2 8 9 4 9 1
Review
Road Projects 3
Nonconforming 1 1 10
use
Agricultural 3 3
dwelling
Variance 1 1 2 3 3 1
Lot of Record 6 1
Determination
Forest template 1
dwelling
Environmental' 15 4 1 11 1 7 4
Post decision 7 7 1
review
Interpretation 1 3
Enforcement 932 35 2 2 2 174
Animal Control 17 48 342
Parking Vios 229
Towed Vehs 67
Parks Violations 108
Solid Waste 3
Facilities
I I
TOTAL 192 252 62 48 14 7 24 13 1 883 44 49 44 9 177 4 1
1 Shoreline,ESRA(Environmentally Sensitive Restoration Areas),Reasonable Use Exception,Tree Removal and Floodplain
2 Not including appeals of fireworks and fire lane parking citations.
Resume of Joe Turner Page 2
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