Oregon Legally Steps Towards More Permissive Residential Zoning

To address local zoning and policies stymieing development, in 2019 the Oregon Legislature passed House Bill 2001. H.B. 2001 requires residential-zoned single-family dwellings be rezoned to at minimum permit duplexes. Cities between 10,000 and 25,000 must adopt zoning ordinances permitting duplexes in single-family/structure zoned areas. Cities over 25,000 people must permit duplexes, fourplexes, and townhouses up to four units, (collectively known as “middle housing”) in single-family zoned areas. Accessory dwelling units generally must also be permitted in these re-zoned lots. Exceptions are permitted for cities under 1,000 people; areas lacking sufficient infrastructure, areas subject to re-zoning under a broader comprehensive plan, among other exceptions. H.B. 2001 also encourages localities to promote housing by waiting or deferring development charges and providing property tax exemptions. H.B. 2001 is a small step to address underproduction of housing by requiring permission of traditional and small housing forms consistent with existing character.

Under H.B. 2001, if a local government fails to adopt compliant zoning, the model ordinance developed by the Department of Land Conversation and Development shall supersede the local ordinance until the local government complies. This State override is a form of express preemption.

Many believe single-family zoning is a form of exclusionary zoning that has prevented low-income and minority groups from living in communities. In response to the housing shortage and exclusion, Oregon, like other states, has curtailed planning and regulatory functions previously delegated to local governments. Oregon courts generally find that the home rule amendment to the Oregon Constitution, Article XI, § 2, establishes strong presumptions that civil ordinances are valid and not impliedly preempted, except to the extent they are expressly preempted by state law. H.B. 2001 shifts Oregon closer to a Dillon’s rule model whereby localities have less plenary authority due to a stricter construction of the state’s delegation of power to local governments.

Oregon courts will likely be reluctant to hold that the Oregon legislature cannot mandate this up-zoning because the Oregon legislature retains authority over significant public policy, in addition to the decades of state housing policies and governance infrastructures upon which H.B. 2001 rests. Oregon’s acts and commissions cementing housing policy as a state matter have rarely been successfully legally challenged. Rulemaking through Oregon’s Land Conservation and Development Commission (covering zoning specifics and balancing standardization versus local discretion) will determine the extent to which H.B. 2001 permits more middle-housing. Direct and indirect local pushback (e.g., demolition taxes) will also determine the amount of housing production arising from H.B. 2001.

H.B. 2001 does not limit the construction of single-family homes, rather it is state action restoring a property right by providing opportunities to build within existing residential zones. The odds of a successful direct legal challenge to H.B. 2001 are low because H.B. 2001 doesn’t change local governance structures, avoids sweeping language, leaves some details to local control, and because it provides exceptions and extensions. H.B. 2001 is an example of measured state-policy that other states can emulate to address chronic housing underproduction.

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Aaron Reuben

Aaron Reuben grew up in San Francisco and graduated from NYU. Aaron is in his final year at Georgetown Law in Washington, DC where he studies business law.