Oregon moves decisively to legalize missing middle housing

Oregon became the first state in the nation to comprehensively bar local governments from imposing exclusive single-family residential zoning, and to effectively open up nearly all residentially zoned land to duplexes, triplexes and fourplexes. HB 2001 passed the Oregon House and Senate, and is on its way to Governor Kate Brown’s desk for signature. The bill is important in its own right, and the politics behind its passage, and the way it fits into the framework of land use law in Oregon, has important lessons for housing advocates nationwide.

Another Oregon First:  (Re-)Legalizing Missing Middle Housing

In the wake of the epic failure of California’s much ballyhooed SB 50, which would have liberalized multifamily housing in transit served areas, Oregon’s success in enacting HB 2001 has caught the attention of the housing wonkocracy.

The New York Times’ took notice: ace urban reporter, Emily Badger tweeted about the passage of HB 2001. CityLab flagged the legislation in its article “Upzoning Rising: Oregon Bans Single-Family Zoning.” Local journalists also trumpeted the bill.  Portland’s Oregonian told its readers HB 2001:

. . . will allow duplexes, triplexes, fourplexes and “cottage clusters” on land previously reserved for single family houses in cities with more than 25,000 residents, as well as smaller cities in the Portland metro area. Cities with at least 10,000 residents would be required to allow duplexes in single-family zones.:

Alt-weekly Willamette Week chimed in:

Oregon Legislature passes nation’s first state-wide ban on single family zoning in cities. Two- three- and four-unit buildings will now be allowed in urban Oregon neighborhoods on lots where only one home was previously allowed

The Libertarian Reason magazine–generally skeptical of anything that comes out of deeply blue Oregon–was also laudatory. Its headline:  “Oregon becomes first state to ditch single family zoning.”  Reason tempered its acclaim by calling the state’s land use planning system “a mixed bag” because it retained urban growth boundaries, even though we and others have noted the boundaries serve to reduce public service costs by limiting expensive-to-serve low density sprawl.

Credit for political leadership in getting this bill passed goes squarely to Oregon House Speaker Tina Kotek, who made the bill a personal priority this session. The definitive telling of the political and policy story behind HB 2001 comes from Sightline Institute’s Michael Andersen.  Sightline’s Andersen and Madeline Kovacs (founder of Portland for Everyone) have been key figures in building the case for addressing missing middle housing in Oregon. But Andersen’s work shows how supporters crafted a broad-based coalition that ultimately generated bipartisan support for the bill.

One of Sightline’s signal contributions–which can and should be applied elsewhere–is de-escalating the rhetoric around the bill. Many in the media (and opponents) like to characterize this bill as “banning single family zoning,” which sounds to many ominously like banning single family homes. Andersen and Kovacs have carefully argued that the objective is not to ban single family homes, but to legalize two- to four-family housing. They’ve cleverly, and accurately, embedded that point in observations that these housing types were long allowed nearly everywhere, and that neighborhoods that have this diverse inheritance of housing are among the state’s most desirable.

Andersen’s article, “Re-legalizing fourplexes is the unfinished business of Tom McCall” should be required reading for all YIMBY advocates. Making the housing debate about allowing more of what people want, rather than taking something away, is a strategy others should emulate.

The Context:  Housing in Oregon’s land use planning system

For observers outside Oregon, it’s a little bit hard to make sense of this legislation. There’s a huge amount of context and existing structure built in to the law and politics of the Oregon land use system that make this system work.

First, a bit of history. Oregon adopted comprehensive state-regulated land use planning in 1973. The core elements of the system are a series of statewide land use goals and a supporting infrastructure of regulations that govern and limit the discretion of city and county planning officials. Local land use plans are reviewed, and have to be approved, by the state Land Conservation and Development Commission. In addition, local land use decisions that violate state requirements can be appealed to a statewide Land Use Board of Appeals.

State laws and regulations limit local government’s ability both to allow development and to prohibit it.  Most famously, Oregon has drawn urban growth boundaries (UGB) around all of its cities, spelling out which places are off limits for urban scale development. Here, state law precludes what local governments can allow.

The less well known feature of the Oregon system is that the state also prescribes the kind of developments that local governments must allow within urban growth boundaries. Cities cannot, for example, ban apartments or require exclusively large-lot residential development. In fact, the state’s land use plan requires local governments to designate land for a range of housing types. In addition, the state requires that if land is designated for a particular residential use, say apartments, that development applications have to be approved under “clear and objective” approval standards.  In the Portland metropolitan area, a special housing rule applies to local governments, requiring each locality to meet specified minimum housing densities, and to zone for a range of housing types.

And the evidence, in the form of much more compact development patterns, shows that this has worked. Robert Liberty, a long time advocate, scholar and government official deeply involved in Oregon’s planning system summarized the pattern of urban growth in Portland before and after the adoption of the UGB and the housing rule. The minimum densities required under land use planning increased the housing capacity of single family zoned lands from 129,000 homes to more than 300,000.  A decade after the plans were put in place, a review showed that cities required to provide for 10 units per acre jurisdiction-wide met 95 percent of that goal, and jurisdictions assigned at least 8 units per acre actually exceeded that goal. (City Observatory readers will likely recognize Liberty as the author of one of our favorite essays, “My Illegal Neighborhood.”)

More recently, Portland’s regional government, Metro, which is charged with developing a housing needs analysis for the metropolitan area, examined the pattern of urban growth in the past decade.  It found that the region has continued to reduce the amount of land needed for each new single family home, with average lot sizes for new dwellings falling by half since the 1980s. The region has expanded its housing supply mostly by infill and redevelopment, rather than by building on vacant land on the region’s periphery.  Over the past decade, three-quarters of all new housing units in metropolitan Portland were built on in-fill sites in already developed areas, or by redevelopment of existing built-up properties.

For four decades, the Oregon system has precluded local governments from playing “beggar thy neighbor” in addressing regional housing demand.  Every city in the Portland area has to shoulder a share of the responsibility for allowing for new housing construction. It’s one of the reasons that Portland has the highest level of economic integration of any large metropolitan area in the nation: it’s effectively impossible for local jurisdictions to use land use restrictions to preclude a range of housing types. With this system in place, re-legalizing missing middle housing types isn’t so much a revolutionary step as it is an evolutionary one.

Key Provisions of HB 2001

The headline provisions of HB 2001 require local governments to allow four-plexes in all residential zoned areas in larger cities, and allow at least duplexes in the residential areas of smaller cities.  The key change to Oregon law is in Section 2, which reads:

(2) Except as provided in subsection (4) of this section, each city with a population of 25,000 or more and each county or city within a metropolitan service district shall allow the development of:

(a) All middle housing types in areas zoned for residential use that allow for the development of detached single-family dwellings; and

(b) A duplex on each lot or parcel zoned for residential use that allows for the development of detached single-family dwellings.

Middle housing types are defined to include duplexes, triplexes and fourplexes and “cottage clusters.” The metropolitan service district includes 24 cities and three counties of the Portland metropolitan area. The effect is that nearly all city and suburban neighborhoods in the Portland area, and smaller metro areas around the state will be required to allow missing middle housing in single family zones. According to the Sightline Institute, 2.5 million Oregonians, about 60 percent of Oregon’s population lives in places where at least fourplexes will be allowed and 2.8 million live where either duplexes or fourplexes will be allowed.

But HB 2001 goes further.  It creates a right to subdivide existing dwellings into multiple units, and provides for an expedited process for review of applications to subdivide existing single family structures. Section 8 of HB 2001 directs the State Department of Consumer and Business Services to draft alternate approval standards for the conversion of single family structures into two- to four-plex buildings. This section also sets a 3-week review process for such permits, and establishes appeal rights for those denied building permits. The conversion of larger, under-used houses into multiple homes may be the biggest and most immediate impact of the legislation.

HB 2001 gives cities and counties until 2022 to revise their plans to comply with the law.  The state will also be providing $3.5 million in funding for grants, technical assistance and other work to aid in implementing the law.

The Market Urbanism blog questioned, for example, whether, Oregon cities might simply downzone single family neighborhoods or impose parking requirements to evade or nullify the requirement to allow duplexes and fourplexes.

Question about this Oregon zoning deregulation: does it stop cities from downzoning in terms of bulk to make the state law dead letter? And does it stop them from imposing onerous parking requirements on the new units?

In short, that’s already largely precluded by the Goal 10 requirements that  require a housing needs assessment, and meeting minimum levels of density city-wide.  In addition, specific provisions of HB 2001 preclude arbitrary restrictions on approving missing middle housing.  For example, section 7 of HB 2001 prohibits conditioning approval of accessory dwelling unit within urban growth boundary on off-street parking availability or owner occupancy. In addition, the HB 2001 generally prohibits deed restrictions that would preclude the construction of missing middle housing types.

The Takeaway:  State action is needed to realize affordable housing

Oregon’s HB 2001 justly deserves praise as a big step forward in addressing housing affordability. Its passage reflects well on state leadership in this important policy issue. But it’s critical to note that HB 2001 is built on a decades-long foundation of key state mandates and limitations on local discretion in the housing market. Under Goal 10, the state has long precluded Oregon local governments from the kinds of exclusionary practices that are common elsewhere; it has developed a well-functioning system for reviewing and approving local plans, and holding local governments accountable for their implementation.

While we’re nothing but pleased about Oregon’s move to re-legalize missing middle housing, we don’t harbor any illusions that this step, by itself, is likely to redress the imbalance between supply and demand for housing in great urban neighborhoods that has created our current shortage of cities.  What it signals to others nationally is a way out of the woods from our current devolution of nearly all housing supply decisions to local governments, who inherently have motives to constrain supply and divert demand to other places. The “homevoter” bias of local governments, coupled with the prisoner’s dilemma of whether to zone land for affordable housing types, undercut the ability of any local government, however noble, to redress housing market imbalances.  Instead, it falls to state governments, whose ambit is wider, and who can force every jurisdiction to “play fair” in the zoning game, that holds the key to improving housing affordability.

Oregon’s experience points out that this is entirely possible, but will require a good deal more re-engineering of the division of state and local roles in land use planning than seems to be implied by a one-off ban exclusive single family zoning. In the years ahead, states will need to step up and assert the wider public interest in assuring that a range of housing types are allowed throughout every neighborhood.