Revisiting Oregon’s land-use legacy 50 years on

Where should housing not be built?

No one wants a subdivision in a city park, next to the airport or right against the banks of the Willamette River. Fortunately, common-sense zoning laws prevent that.

But what if housing is proposed on land already zoned for residential use? 

We know Eugene hasn’t built enough housing to keep prices affordable for median-income families. So why would anyone oppose new housing if it’s already in a place the city envisions for homes?

Turns out there are plenty of reasons. And it happens more frequently in Eugene than in many other Oregon cities.

Since 2000, neighbors of housing proposals or anti-development advocates have initiated or joined appeals of 14 major housing plans to the Oregon Land Use Board of Appeals, commonly known as LUBA. It is the state review board that hears challenges to local land-use decisions.

Those 14 projects totaled about 2,000 housing units — the equivalent of more than two years of typical housing production for Eugene.

How many of those appeals resulted in the project ultimately being denied? None.

Yet only about half of those 2,000 units have been built. Anti-growth advocates have turned LUBA, established a half-century ago to streamline Oregon’s system of resolving land-use disputes, into a vehicle for stalling housing developments long enough for them to collapse under the weight of time delays and added costs.

Editor’s note: Graphics were created with assistance from Artificial Intelligence tools. All data were manually compiled and reviewed, and no AI was used in the reporting or writing process.

Extra time, added costs

Concerns about unchecked growth are woven into Oregon’s political DNA. In the early 1970s, not long after the state’s population crossed the 2 million mark, Gov. Tom McCall made his famous plea for tourists to keep visiting, but “for heaven’s sake, don’t come here to live.”

It’s a mantra many longtime Oregonians still cling to a half-century later, despite the fact his plea went largely unheeded: Oregon’s population doubled between 1970 and 2020, one of just 13 states to do so during that time.

Lane County’s population growth was slower than Oregon’s as a whole, rising 80% during the same period. But Eugene and Springfield’s population growth outpaced the state.

Fast growth brings change, and the state’s land-use appeals process is meant to ensure growth is orderly. But LUBA, which is really just a three-member panel of attorneys experienced in land-use law, can move at a glacial pace.

The board reviews dozens of appeals each year. Often, a developer seeks to challenge a city’s denial of a zoning change or other land-use request. Other times, neighbors or conservation groups ask LUBA to overturn a city ruling that favored development.

The board can affirm a city’s decision or reverse it. Often, it does neither, instead “remanding” a case back to the city to fix specific errors. It’s a lawyerly way of telling a city, “you should really give this another look,” without flat-out declaring which way a decision should go. This makes some sense: A city’s planning department has a better understanding of its own land use code than LUBA, after all.

But all of this takes time. As a result, a project initially approved by a city — and very likely to be upheld on appeal — can easily spend two to three years or longer in limbo, winding through the process.

Appeals pause the city’s deadlines — typically 18 months to three years — for a developer to go from land-use approval to building permits and the start of construction. While that may sound like ages, in reality a developer is simultaneously navigating the planning process, securing bank or investor financing, and lining up contractors and subcontractors to do the actual work. 

Even though a project clock pauses under appeal, building costs like construction equipment, materials and labor do not.

Let’s say a developer wants to build out a subdivision of houses priced around $445,000, Lane County’s median sale price. If costs rise about 4% each year, a one-year delay could push those houses to about $463,000. Two years could bump them up to more than $480,000, and three years to about $500,000.

None of this is to say every project on residential-zoned land should get a quick green light just because Eugene needs more housing. A densely packed subdivision may not be right for a steep, sloping lot with loose soil. A five-story apartment building near a school might create too much traffic to be safe.

But Oregon’s half-century-old land-use regulations, which created urban growth boundaries to keep development from sprawling onto farmland, have also created legal pathways for neighbors to oppose home construction within city limits — pathways that are often time-consuming and increase the project’s costs.

Where housing gets bogged down

Here’s a quick explanation of the process under which housing gets approved in Eugene. Rather than simply applying for a building permit, a developer planning a subdivision or apartment enters the project into the city’s land-use process. Depending on details and complexity, it can follow several paths.

Among the most complex is the planned unit development path, typically only chosen for complex proposals that mix housing types, such as single-family homes and multi-unit buildings. The city also requires it in some areas. Developers choose between two sets of rules: fixed, clear and objective standards, or more flexible criteria that leave room for judgment.

Until this year, a city hearings official decided planned unit developments after a public hearing. New state laws that took effect July 1 changed that. The city must now decide residential planned unit developments without a hearing, after a 14-day comment period. Neighbors who comment can still appeal approvals under the flexible criteria. On the clear and objective path, only the developer can appeal.

Even then, approval is only a first step. The developer still needs city approval of a final plan and a final plat before applying for building permits.

The comment period under the flexible path is where the groundwork for delay starts. Opponents often cite similar concerns: destruction of natural areas, traffic increases, noise and pollution, wildfire risk. If the city approves the project anyway, opponents can appeal to the Planning Commission and then to LUBA, arguing the city made the wrong decision.

In our view, that strategy has distorted LUBA’s original intent.

Created in the late 1970s, LUBA was an outgrowth of Oregon’s comprehensive land-use management system championed by McCall. But the primary purpose of the land-use protections Oregonians rightfully hold dear was to prevent sprawl outside of urban growth boundaries. When neighbors in one of the least affordable housing markets in the country for median-income workers cite environmental concerns to oppose housing within the city limits, it’s worth asking if the interests being protected are the ones McCall had in mind.

State laws play catch-up

Oregon lawmakers have slowly woken up to this reality. In recent years, the Legislature has passed new laws limiting residents’ appeal options in several ways, including:

• Establishing a “Clear and Objective” land-use path for developers to get guaranteed city approval for a project in more cases.
• Barring “serial” appeals to LUBA, where appellants raise different issues with each appeal.
• Requiring appellants to pay a developer’s and city’s attorney fees in unsuccessful LUBA appeals.
• Removing or restricting public hearing requirements for certain land-use applications.

Lawmakers made perhaps the biggest change this year by removing the public hearing requirement and neighbor appeal rights of projects following the “clear and objective” land-use path.

Eugene can take other steps to tip the scales in a project’s favor. The City Council in December is expected to adopt the state’s “Climate-Friendly and Equitable Communities” program, which requires cities to reduce transportation-related emissions in certain areas.

But the practical effect would be to remove extra layers of rules that apply to development in the greater downtown core and lower Coburg Road area, including any requirements for some of the city’s most complex land-use applications. It would also loosen some building height and density requirements to encourage more development.

But other parts of the city have their own restrictions. In the south hills, for instance, rules drawn from a 1974 city plan, the South Hills Study, still shape what can be built above 500 feet in elevation. Many new subdivisions there must go through the city’s more involved planned unit development process. Even on the clear and objective path, the rules bar most building above 901 feet and cap density at five to eight homes an acre.

The city should strongly consider revisiting some of these rules. Encouraging more development in the south hills is just one example — and an admittedly controversial one. But state housing forecasts show that, while Eugene’s need is largest for residents earning 80% or less of the area’s median income, there’s nearly as much need for housing at 81% up to 120% and higher.

In a famous 1973 speech to the Oregon Legislature, McCall urged the creation of “a state land-use policy, new subdivision laws, and new standards for planning and zoning by cities and counties.”

“The interests of Oregon for today and in the future,” he said, “must be protected from the grasping wastrels of the land.”

The “interests of Oregon” at the time were protecting our natural resources and farmland from the “wastrels” — greedy land speculators pushing development further out onto rural land.

Fifty years later, policymakers from the Oregon Legislature to the Eugene City Council are only now beginning to grapple with the new interests of Oregon: the masses of housing-insecure residents who just need an affordable place to live.