NIMBYs take notice: Court backs Oregon legislators in boosting housing development


Cities throughout Oregon will continue to have limited power to make demands of housing developers, according to a recent ruling by the state’s second highest court.

A series of state laws passed over the last few years survived a challenge to the Oregon Court of Appeals, which in August affirmed Icon Construction’s defeat of Oregon City at the state land-use board. City officials bemoaned their loss on the appeals during their Sept. 6 commission meeting.

Long traffic delays during the 2020 wildfire evacuation led commissioners to reject the large Park Place development plan and call for construction of new connector roads before more houses can be built in the area.

Oregon’s Court of Appeals refused to hear Oregon City’s case and instead affirmed the lower board’s decision without additional comment. State judges, through their silence, have essentially said that the Oregon Land Use Board of Appeals was justified in eviscerating the city’s ability to deny applications based on concept plans.

City Commissioner Frank O’Donnell said that it was astonishing how the state was willing to erode cities’ rights to “home rule” or self-determination. O’Donnell said that the Park Place decision was only one example of legislature’s recent drive to chip away at any ability for cities to regulate housing.

Commissioner Mike Mitchell said that it was “unbelievable” that the Oregon Legislature seems to have been able to throw away 50 years’ worth of land-use planning in a single session.

Oregon City officials spent part of their Sept. 6 meeting discussing how the governor is now planning to “turbocharge” housing development. Mayor Denyse McGriff expressed concerns that a Housing Production Advisory Council, to which the governor largely appointed developers, is hoping to next target housing design standards.

“Unfortunately, the state is making more work for us,” McGriff said. “There is a massive misperception that the system is broken.”

McGriff asked a “hypothetical” question about what would happen if Oregon City decided to refuse to comply with some of the state regulations. According to the city attorney, a rogue city would likely receive an enforcement order from Oregon’s Land Conservation and Development Commission referencing the city’s failure to comply with the state’s land-use code.

“All of this is just a smoke screen for what’s really happening,” which McGriff said is the state’s “overreach” in blaming cities for expensive housing, when cities don’t own the land and also lack the means of producing housing.

Oregon City’s failure block a large development has set a precedent that the Oregon Legislature could use to largely handcuff cities in making standards for housing construction. State legislators have recently passed several provisions preventing cities from restricting development in various ways.

Starting in 2016, Oregon City was no longer allowed to refer annexation requests to voters. Then the legislature mandated that cities allow developers “reasonable opportunities” to meet requirements.

In 2017, the Oregon Legislature passed a law prohibits a city or county from denying applications for housing development that complies with clear and objective standards. LUBA’s state officials said that Oregon City was obligated to provide these standards.

As commissioners unanimously voted on June 7 to fight the state’s initial decision, City Commissioner Adam Marl said there was a danger that accepting the Land Use Board of Appeal’s ruling would send the city’s many development concept plans to the trash. 

The Oregon Court of Appeals could have far-reaching effects statewide on dozens of other cities with development standards that could be similar to Oregon City and likewise failing to meet the “clear and objective” standards set by the Land Use Board of Appeals.

Last October, city commissioners rejected Icon Construction’s bid to build a 426-home subdivision in the Park Place neighborhood, saying that the developer’s stereotypical housing subdivision had failed to incorporate commercial elements envisioned in the city in a concept plan.

“The city erred when the city failed to provide petitioner a reasonable opportunity to respond and propose alternative ways of meeting the city’s requirements prior to making a final decision on the applications,” Michelle Gates Rudd wrote for the state’s three-member land-use appeals board in a recent decision.


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