2017 ORS 197.296¹
Factors to establish sufficiency of buildable lands within urban growth boundary
  • analysis and determination of residential housing patterns

(1)(a) The provisions of subsections (2) to (9) of this section apply to metropolitan service district regional framework plans and local government comprehensive plans for lands within the urban growth boundary of a city that is located outside of a metropolitan service district and has a population of 25,000 or more.

(b) The Land Conservation and Development Commission may establish a set of factors under which additional cities are subject to the provisions of this section. In establishing the set of factors required under this paragraph, the commission shall consider the size of the city, the rate of population growth of the city or the proximity of the city to another city with a population of 25,000 or more or to a metropolitan service district.

(2) At periodic review pursuant to ORS 197.628 (Periodic review) to 197.651 (Appeal to Court of Appeals for judicial review of final order of Land Conservation and Development Commission) or at any other legislative review of the comprehensive plan or regional framework plan that concerns the urban growth boundary and requires the application of a statewide planning goal relating to buildable lands for residential use, a local government shall demonstrate that its comprehensive plan or regional framework plan provides sufficient buildable lands within the urban growth boundary established pursuant to statewide planning goals to accommodate estimated housing needs for 20 years. The 20-year period shall commence on the date initially scheduled for completion of the periodic or legislative review.

(3) In performing the duties under subsection (2) of this section, a local government shall:

(a) Inventory the supply of buildable lands within the urban growth boundary and determine the housing capacity of the buildable lands; and

(b) Conduct an analysis of housing need by type and density range, in accordance with ORS 197.303 (“Needed housing” defined) and statewide planning goals and rules relating to housing, to determine the number of units and amount of land needed for each needed housing type for the next 20 years.

(4)(a) For the purpose of the inventory described in subsection (3)(a) of this section, “buildable lands” includes:

(A) Vacant lands planned or zoned for residential use;

(B) Partially vacant lands planned or zoned for residential use;

(C) Lands that may be used for a mix of residential and employment uses under the existing planning or zoning; and

(D) Lands that may be used for residential infill or redevelopment.

(b) For the purpose of the inventory and determination of housing capacity described in subsection (3)(a) of this section, the local government must demonstrate consideration of:

(A) The extent that residential development is prohibited or restricted by local regulation and ordinance, state law and rule or federal statute and regulation;

(B) A written long term contract or easement for radio, telecommunications or electrical facilities, if the written contract or easement is provided to the local government; and

(C) The presence of a single family dwelling or other structure on a lot or parcel.

(c) Except for land that may be used for residential infill or redevelopment, a local government shall create a map or document that may be used to verify and identify specific lots or parcels that have been determined to be buildable lands.

(5)(a) Except as provided in paragraphs (b) and (c) of this subsection, the determination of housing capacity and need pursuant to subsection (3) of this section must be based on data relating to land within the urban growth boundary that has been collected since the last periodic review or five years, whichever is greater. The data shall include:

(A) The number, density and average mix of housing types of urban residential development that have actually occurred;

(B) Trends in density and average mix of housing types of urban residential development;

(C) Demographic and population trends;

(D) Economic trends and cycles; and

(E) The number, density and average mix of housing types that have occurred on the buildable lands described in subsection (4)(a) of this section.

(b) A local government shall make the determination described in paragraph (a) of this subsection using a shorter time period than the time period described in paragraph (a) of this subsection if the local government finds that the shorter time period will provide more accurate and reliable data related to housing capacity and need. The shorter time period may not be less than three years.

(c) A local government shall use data from a wider geographic area or use a time period for economic cycles and trends longer than the time period described in paragraph (a) of this subsection if the analysis of a wider geographic area or the use of a longer time period will provide more accurate, complete and reliable data relating to trends affecting housing need than an analysis performed pursuant to paragraph (a) of this subsection. The local government must clearly describe the geographic area, time frame and source of data used in a determination performed under this paragraph.

(6) If the housing need determined pursuant to subsection (3)(b) of this section is greater than the housing capacity determined pursuant to subsection (3)(a) of this section, the local government shall take one or more of the following actions to accommodate the additional housing need:

(a) Amend its urban growth boundary to include sufficient buildable lands to accommodate housing needs for the next 20 years. As part of this process, the local government shall consider the effects of measures taken pursuant to paragraph (b) of this subsection. The amendment shall include sufficient land reasonably necessary to accommodate the siting of new public school facilities. The need and inclusion of lands for new public school facilities shall be a coordinated process between the affected public school districts and the local government that has the authority to approve the urban growth boundary;

(b) Amend its comprehensive plan, regional framework plan, functional plan or land use regulations to include new measures that demonstrably increase the likelihood that residential development will occur at densities sufficient to accommodate housing needs for the next 20 years without expansion of the urban growth boundary. A local government or metropolitan service district that takes this action shall monitor and record the level of development activity and development density by housing type following the date of the adoption of the new measures; or

(c) Adopt a combination of the actions described in paragraphs (a) and (b) of this subsection.

(7) Using the analysis conducted under subsection (3)(b) of this section, the local government shall determine the overall average density and overall mix of housing types at which residential development of needed housing types must occur in order to meet housing needs over the next 20 years. If that density is greater than the actual density of development determined under subsection (5)(a)(A) of this section, or if that mix is different from the actual mix of housing types determined under subsection (5)(a)(A) of this section, the local government, as part of its periodic review, shall adopt measures that demonstrably increase the likelihood that residential development will occur at the housing types and density and at the mix of housing types required to meet housing needs over the next 20 years.

(8)(a) A local government outside a metropolitan service district that takes any actions under subsection (6) or (7) of this section shall demonstrate that the comprehensive plan and land use regulations comply with goals and rules adopted by the commission and implement ORS 197.295 (Definitions for ORS 197.295 to 197.314 and 197.475 to 197.490) to 197.314 (Required siting of manufactured homes).

(b) The local government shall determine the density and mix of housing types anticipated as a result of actions taken under subsections (6) and (7) of this section and monitor and record the actual density and mix of housing types achieved. The local government shall compare actual and anticipated density and mix. The local government shall submit its comparison to the commission at the next periodic review or at the next legislative review of its urban growth boundary, whichever comes first.

(9) In establishing that actions and measures adopted under subsections (6) and (7) of this section demonstrably increase the likelihood of higher density residential development, the local government shall at a minimum ensure that land zoned for needed housing is in locations appropriate for the housing types identified under subsection (3) of this section and is zoned at density ranges that are likely to be achieved by the housing market using the analysis in subsection (3) of this section. Actions or measures, or both, may include but are not limited to:

(a) Increases in the permitted density on existing residential land;

(b) Financial incentives for higher density housing;

(c) Provisions permitting additional density beyond that generally allowed in the zoning district in exchange for amenities and features provided by the developer;

(d) Removal or easing of approval standards or procedures;

(e) Minimum density ranges;

(f) Redevelopment and infill strategies;

(g) Authorization of housing types not previously allowed by the plan or regulations;

(h) Adoption of an average residential density standard; and

(i) Rezoning or redesignation of nonresidential land.

(10)(a) The provisions of this subsection apply to local government comprehensive plans for lands within the urban growth boundary of a city that is located outside of a metropolitan service district and has a population of less than 25,000.

(b) At periodic review pursuant to ORS 197.628 (Periodic review) to 197.651 (Appeal to Court of Appeals for judicial review of final order of Land Conservation and Development Commission) or at any other legislative review of the comprehensive plan that requires the application of a statewide planning goal relating to buildable lands for residential use, a city shall, according to rules of the commission:

(A) Determine the estimated housing needs within the jurisdiction for the next 20 years;

(B) Inventory the supply of buildable lands available within the urban growth boundary to accommodate the estimated housing needs determined under this subsection; and

(C) Adopt measures necessary to accommodate the estimated housing needs determined under this subsection.

(c) For the purpose of the inventory described in this subsection, “buildable lands” includes those lands described in subsection (4)(a) of this section. [1995 c.547 §3; 2001 c.908 §1; 2003 c.177 §1; 2015 c.27 §19; 2017 c.102 §1]

Note: Sections 1, 2 (2) and 4, chapter 92, Oregon Laws 2014, provide:

Sec. 1. Legislative findings regarding urban growth boundary. The Legislative Assembly finds and declares that:

(1) Oregon law requires a metropolitan service district to establish an urban growth boundary and to maintain development capacity sufficient for a 20-year period within the boundary based on periodic assessments of the development capacity within the boundary.

(2) Metro, the metropolitan service district for the Portland metropolitan area, has not implemented an approved legislative amendment to the urban growth boundary since 2005.

(3) In 2010, Metro assessed the development capacity within the urban growth boundary and determined that the boundary did not contain sufficient capacity for a 20-year period.

(4) The Metro Council, the governing body of Metro, established policies, including an investment strategy, for using land within the urban growth boundary more efficiently by adopting Ordinance No. 10-1244B on December 16, 2010.

(5) Ordinance No. 10-1244B significantly increased the development capacity of the land within the urban growth boundary, but left unmet needs for housing and employment.

(6) On July 28, 2011, the Metro Council held a public hearing in Hillsboro to allow public review of and to take comments on proposed expansion of the urban growth boundary to fill the unmet needs for housing and employment in the region.

(7) On September 14 and 28, 2011, the Metro Council sought advice on expansion of the urban growth boundary from the Metro Policy Advisory Committee, which is composed primarily of elected and other local government officials in the region. On September 28, 2011, the Metro Council received a recommendation from the committee.

(8) The Metro Council, with the advice and support of the committee, established six desired outcomes as the basis for comparing policy and strategy options to increase the development capacity of the region.

(9) On September 30, 2011, the Metro Council reported likely effects of the proposed expansion of the urban growth boundary to:

(a) The cities and counties in the region; and

(b) Nearly 34,000 households within one mile of land proposed to be included within the urban growth boundary.

(10) The Metro Council developed, in cooperation with the cities and counties responsible for land use planning in areas potentially to be included within the urban growth boundary, policies and strategies addressing the affordability of housing, the compatibility of residential use with nearby agricultural practices and the protection of industrial lands from conflicting uses.

(11) On October 6 and 20, 2011, the Metro Council held public hearings on the proposed expansion of the urban growth boundary.

(12) On October 20, 2011, the Metro Council unanimously adopted Ordinance No. 11-1264B, expanding the urban growth boundary to fill the unmet needs for increased development capacity for housing and for industries that require large areas of developable land.

(13) The adopted policies and strategies reflect the intention of the Metro Council to develop vibrant, prosperous and sustainable communities with reliable transportation choices that minimize carbon emissions and to distribute the benefits and burdens of development equitably in the Portland metropolitan area.

(14) The Director of the Department of Land Conservation and Development referred the expansion of the urban growth boundary by Ordinance No. 11-1264B to the Land Conservation and Development Commission for review.

(15) On May 10, 2012, the commission held a public hearing, according to rule-based procedures adopted by the commission, to consider the proposed amendment to the urban growth boundary made by Ordinance No. 11-1264B.

(16) The commission continued the public hearing to June 14, 2012, and requested that the Metro Council submit additional information describing how the record demonstrates compliance with the appropriate statewide land use planning goals, administrative rules and instructions.

(17) On June 14, 2012, the commission unanimously approved the expansion of the urban growth boundary by Ordinance No. 11-1264B in Approval Order 12-UGB-001826.

(18) Metro and other local governments have made significant investments in infrastructure to ensure that housing, education and employment needs in the region are met.

(19) Ordinance No. 11-1264B and its findings satisfy Metro’s obligations under ORS 197.295 (Definitions for ORS 197.295 to 197.314 and 197.475 to 197.490) to 197.314 (Required siting of manufactured homes) and under statewide land use planning goals relating to citizen involvement, establishment of a coordinated planning process and policy framework and transition from rural to urban land uses. [2014 c.92 §1]

Sec. 2. (2) Section 4 of this 2014 Act is added to and made a part of ORS 197.295 (Definitions for ORS 197.295 to 197.314 and 197.475 to 197.490) to 197.314 (Required siting of manufactured homes). [2014 c.92 §2(2)]

Sec. 4. Urban growth boundary designation. For the purpose of land use planning in Oregon, the Legislative Assembly designates the urban growth boundary designated in Metro Ordinance No. 11-1264B, adopted October 20, 2011, as the acknowledged urban growth boundary of Metro, subject to the conditions of approval in the ordinance, except that:

(1) The real property in Area 7C on Metro’s map denominated as the “Urban and Rural Reserves in Washington County, Attachment A to Staff Report for Resolution No. 11-4245 (03/17/11 DRAFT),” is included within the acknowledged urban growth boundary.

(2) The real property in Area 7D on Metro’s map denominated as the “Urban and Rural Reserves in Washington County, Attachment A to Staff Report for Resolution No. 11-4245 (03/17/11 DRAFT),” is included within the acknowledged urban growth boundary.

(3) The real property in Area 7E on Metro’s map denominated as the “Urban and Rural Reserves in Washington County, Attachment A to Staff Report for Resolution No. 11-4245 (03/17/11 DRAFT),” is included within the acknowledged urban growth boundary. [2014 c.92 §4]

Notes of Decisions

In urban growth boundary amend­ment process, no single land use goal factor is determinative or acts as threshold require­ment to be met. Citizens Against Irresponsible Growth v. Metro, 179 Or App 12, 38 P3d 956 (2002)

Law Review Cita­tions

93 OLR 455 (2014)

Law Review Cita­tions

18 WLR 75 (1982); 61 OLR 351 (1982)

Law Review Cita­tions

10 WLJ 414-421, 474, 475 (1974); 56 OLR 270 (1977)

Chapter 197

Notes of Decisions

A comprehensive plan, although denominated a “resolu­tion,” is the controlling land use planning instru­ment for a city; upon its passage, the city assumes responsibility to effectuate the plan and conform zoning ordinances, including prior existing zoning ordinances, to it. Baker v. City of Milwaukie, 271 Or 500, 533 P2d 772 (1975)

Procedural require­ments of the state-wide planning goals adopted by the Land Conserva­tion and Develop­ment Commission are not applicable to ordinances adopted before the effective date of the goals. Schmidt v. Land Conserva­tion and Develop­ment Comm., 29 Or App 665, 564 P2d 1090 (1977)

This chapter, es­tab­lishing LCDC and granting it authority to es­tab­lish state-wide land use planning goals, does not unconstitu­tionally delegate legislative power where both standards (ORS chapter 215) and safeguards ([former] ORS 197.310) exist. Meyer v. Lord, 37 Or App 59, 586 P2d 367 (1978)

Where county’s comprehensive plan and land use regula­tions had not been acknowledged by LCDC, it was proper for county to apply state-wide planning standards directly to individual request for parti­tion. Alexanderson v. Polk County Commissioners, 289 Or 427, 616 P2d 459 (1980)

Issuance of a building permit was a “land conserva­tion and develop­ment ac­tion” where county had no acknowledged comprehensive plan, land was not zoned and no pre­vi­ous land use decision had been made re­gard­ing the land. Columbia Hills v. LCDC, 50 Or App 483, 624 P2d 157 (1981), Sup Ct review denied

Nothing in this chapter grants the Land Conserva­tion and Develop­ment Depart­ment authority to challenge local land use decisions made after comprehensive plan acknowledg­ment. Ochoco Const. v. LCDC, 295 Or 422, 667 P2d 499 (1983)

LCDC has authority in periodic review process to require local govern­ment to add specific language or pro­vi­sions to its land use legisla­tion to assure compliance with statewide goals and LCDC rules. Oregonians in Ac­tion v. LCDC, 121 Or App 497, 854 P2d 1010 (1993), Sup Ct review denied

Atty. Gen. Opinions

Authority of a land conserva­tion and develop­ment com­mis­sion to bind the state in an interstate compact or agree­ment, (1973) Vol 36, p 361; applica­tion of Fasano v. Bd. of County Commrs., (1974) Vol 36, p 960; state-wide planning goal in conjunc­tion with interim Willamette River Greenway boundaries, (1975) Vol 37, p 894; binding effect on govern­mental agencies of the adop­tion of interim Willamette River Greenway boundaries, (1975) Vol 37, p 894; applica­tion to state agencies, (1976) Vol 37, p 1129; preexisting ordinances during the interim imple­menting stage, (1976) Vol 37, p 1329; constitu­tionality of delega­tion to LCDC of authority to prescribe and enforce statewide planning goals, (1977) Vol 38, p 1130; effect of situa­tion where similar peti­tion is filed before both com­mis­sion and a court, (1977) Vol 38, p 1268; considera­tion of availability of public school facilities in determina­tion of whether to approve subdivision, (1978) Vol 38, p 1956

Law Review Cita­tions

10 WLJ 99 (1973); 53 OLR 129 (1974); 5 EL 673 (1975); 54 OLR 203-223 (1975); 56 OLR 444 (1977); 18 WLR 49 (1982); 61 OLR 351 (1982); 20 WLR 764 (1984); 14 EL 661, 693, 713, 779, 843 (1984); 25 WLR 259 (1989); 31 WLR 147, 449, 817 (1995); 36 EL 25 (2006); 49 WLR 411 (2013)

1 Legislative Counsel Committee, CHAPTER 197—Comprehensive Land Use Planning, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors197.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 197, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano197.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.