The City Council approved the Residential Infill Project. RIP will go into effect in August 2021.
Oregon Supreme Court
Middle Housing Policy
The Oregon Supreme Court denied the Multnomah Neighborhood Association's petition to review whether Portland's adoption of the Middle Housing Policy in the 2035 Comprehensive Plan was consistent with Oregon's Land Use laws.
Thank You to Everyone who Contributed
State law requires LCDC to periodically review the comprehensive plans and zoning regulations of Oregon cities and counties. This is a complex process with long term consequences for local planning and development across the state.
Denying review of this case reallocates authority between LCDC and local governments contrary to the legislative intent of the periodic review statutes. The legislature has given responsibility to LCDC to oversee the periodic review of local comprehensive plans and zoning regulations and to require changes to these regulations as needed to meet the Statewide Planning Goals.
In this case, the City skirted LCDC oversight of middle housing policy by excluding the policy from the City’s analysis of policy alternatives and by diverting implementation of the policy to a local process outside of periodic review. The Department of Land Conservation and Development and LCDC allowed this to occur because they failed to evaluate whether Middle Housing Policy was consistent with the City’s periodic review policy analysis and with the Statewide Planning Goals.
The Court’s decision excuses LCDC’s failure to meet its obligations under the periodic review statues. The Court’s decision also validates the City’s adoption of a policy without an adequate factual basis and the City’s actions to avoid oversight of this decision.
The precedent allows other local governments to exclude controversial land use decisions from their periodic review work in order to avoid state review. This result undermines the oversight purpose of the periodic review statutes, turning periodic review into a meaningless bureaucratic exercise that does not inform or improve policy making.
LCDC’s approval of the Middle Housing Policy without requiring the City to implement the policy under LCDC oversight in periodic review also allows the City near-total discretion in applying the policy.
As a result of the Court's denial to review the petition, the Middle Housing Policy remains in effect. Its wording calls for middle housing “where appropriate.” This is a broad standard that requires the exercise of the judgment by City leaders. The City Council may determine what is “appropriate” in any plausible way. The policy language therefore results in few or no meaningful boundaries on the City’s decision making.
The Middle Housing Policy makes a radical change in land use planning in that it allows the zoning code to determine the number of units on a residential lot. Historically the Comprehensive Plan itself governed residential density. Compared to the Comprehensive Plan, the zoning code can be changed relatively easily at anytime with little public oversight or input.
The Residential Infill Project is implementing the Middle Housing Policy. On March 12, the PSC voted 5 to 4 to endorse allowing 4 units without conditions on almost all single family residential zoned properties citywide. This was done over the objection of Andre Baugh who argued that RIP will result in the displacement of low-income residents, unfairly burdening minority populations.
Video of PSC Vote: 4 Units - No Strings Attached (Please Watch)
The Multnomah Neighborhood Association filed an appeal of the City's 2035 Comprehensive Plan "Middle Housing" Policy 5.6 (MHP) at the Oregon Court of Appeals. We hired Michael Gelardi, a land use attorney with the law firm Hershner Hunter, to represent us in this case. If successful, the appeal will likely result in a remand to the City to conduct further proceedings on the MHP.
Previously, Mr. Gelardi petitioned the Court of Appeals for judicial review of the MHP. He also filed a motion to clarify the record and to determine the schedule:
The Court granted our requests. The City and the MNA submitted motions to correct the record:
LCDC generally agreed to supplement the record in response to MNA’s and the city’s requests, but LCDC refused to include the city’s Urban Design Direction document in the record.
Mr. Gelardi has petitioned the court to consider certain documents showing that the city has implemented the Middle Housing Policy of the 2035 Comprehensive Plan through the Residential Infill Project. The city and the LCDC attempted to prevent the court from considering this information:
The LCDC and the City filed their Responses to the MNA brief on July 3, 2019
We need your Help to Fund the Appeal
Implementation of the "Middle Housing" Policy
The MHP is the policy basis for the Residential Infill Project (RIP). The current RIP proposal allows 4 housing units on 99% of all lots zoned "single family residential" citywide and removes parking requirements for single family zones.
MNA Land Use Fund
Donations are 501(c)3 tax-deductible
Currently the Neighborhood Association's Land Use Fund is directed towards appealing the Middle Housing Policy at the Oregon Court of Appeals.
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KBOO Interview with Planner Eben Fodor
Listen to the KBOO interview with Planner Eben Fodor on the Comprehensive Plan, Middle Housing, and Residential Infill Project:
The Implications of LCDC Approval of Portland’s Comp Plan
By Eben Fodor, August 10, 2018
The Land Conservation and Development Commission (LCDC) has just officially approved the City of Portland’s new 2035 Comprehensive Plan by rejecting all the appeals that have been filed. As a planner who helped the Multnomah Neighborhood Association (MNA) file some of these appeals, I am alarmed at the lack of oversight and integrity in the planning process that is supposed to be provided by the Department of Land Conservation and Development (DLCD) and its commission, LCDC.
Portland failed to follow long-standing planning policy in its fervor to advance a last-minute “middle housing” policy. This policy is now being used as the primary legal justification for the Residential Infill Project (RIP). The RIP will rezone all of Portland’s single-family residential neighborhoods to quadruple the density, allowing four-plexes on every lot zoned Single Family Residential.
While there are concerns about how the RIP will affect the stability and functionality of Portland’s neighborhoods, and whether it will produce any affordable housing, the focus of the MNA appeals has been on the flawed process that got us here.
If Portland’s heavy-handed, top-down planning is allowed to stand, it will have statewide consequences. The implications of the LCDC decision to endorse this sort of planning can be summarized as follows:
- Cities do not need to base planning policies or actions on any factual evidence. They can support their planning proposals by making up any findings they wish, based merely on conjecture and speculation.
- Cities are not required to document or demonstrate any actual need for any planning action. Nor are they required to demonstrate any broad public support for their actions.
- Cities do not need to show that a planning action will have the desired effects or produce any benefits whatsoever in meeting public needs or desired outcomes.
- Cities do not need to respond in any way to public input on planning proposals, as long as timely notice is provided. Public involvement is not a meaningful process, but merely something to check off on the planner’s checklist.
- Cities do not need to inform the public about the details or potential impacts of any proposed planning policy or action, no matter how far-reaching and impactful it may be. The mere mention of a topic in a staff report is sufficient public information.
- Major and fundamental planning actions can be hidden as tiny “amendments” in massive, last-minute documents. It’s up to the public to find them and interpret them. The city does not need to be clear and explicit about its intentions.
- No actual public outreach or education efforts are required of the city for any planning action. Passive website posting or simple notice is all that is required.
- Requirements for comprehensive planning do not apply to last-minute policy amendments, even if they could change zoning and density citywide. There is no need to consider and coordinate transportation, infrastructure, or other related elements, since this is too burdensome for the city.
For fans of Oregon’s statewide planning system, it’s a great concern that fundamental elements of the system may not have any real meaning and that citizens may have no real role in the process.
The Multnomah Neighborhood Association is working hard to raise funds for an appeal to the Oregon Court of Appeals within the 21-day deadline. If they are successful in this case, it will head off a precedent for some of the worst planning in the State’s modern history, and it will establish the legitimacy of public involvement and fact-based planning in the Statewide Planning Program.
Eben Fodor is a planning consultant with Fodor and Associates LLC in Eugene, OR focusing on sustainability and community planning for non-profit and private clients.
Residential Infill Project
A Overlay Map
Yellow = Transforms single-family zones into multi-family zones; allows up to 3 units on interior lots and 4 units on corner lots
Purple = Rezoning R2.5
Click here to watch a video about how planners in Ballard WA zoned out single-family homes and eliminated citizen involvement. The same thing is now being promoted in Portland in the Residential Infill Project.
Objections to the Comprehensive Plan
Objection to Task 4
The Multnomah Neighborhood Association filed three Appeals to Task 4 of the 2035 Comprehensive Plan. The appeals were made at the direction of the membership. Two of the objections—on the “middle housing” policy and the lack of process leading to its adoption and on the designation of Multnomah as a Center—were filed on our behalf by Eben Fodor & Associates, Eugene planning consultants, and reviewed by two land use attorneys. The third objection—on Chapter 2, Citizen Involvement, was filed on our behalf by past chair Carol McCarthy.
Objection to the Designation of the Multnomah Neighborhood as a Center in the City of Portland Comprehensive Plan Update
Objection to Task 5
On August 7th, the City of Portland submitted Task 5 of the 2035 Comprehensive Plan to the Department of Land Conservation and Development (DLCD).
On August 25th, MNA submitted an objection to the Plan’s Early Implementation Task 5. If found valid, the objection basically would maintain the historic character of the village by changing the CM2 zoning to CM1. The measurement of height would be done on the lowest frontage street. The document is posted below.
Appeals to DLCD Decisions Filed
Appeals to Tasks 4 & 5
The Multnomah Neighborhood Association filed the following appeals to Tasks 4 and 5 of the 2035 Comprehensive Plan. The DLCD rejected all Objections.
MNA Exceptions to Staff Report:
DLCD Staff Report:
The City submitted the record for Task 4 to the DLCD. The City waived the 120-day time limit for review and requested it to be done with Task 5 when submitted. The MNA wrote a letter to DLCD director Jim Rue and the commissioners to inquire about this waiver and request that DCLD proceed with the review.
2035 Comprehensive Plan Letter Templates
2019 Legislative Letter Templates
28% Proposed Increase