ORS 197.758¹
Development of middle housing
  • local regulations

(1) As used in this section:

(a) “Cottage clusters” means groupings of no fewer than four detached housing units per acre with a footprint of less than 900 square feet each and that include a common courtyard.

(b) “Middle housing” means:

(A) Duplexes;

(B) Triplexes;

(C) Quadplexes;

(D) Cottage clusters; and

(E) Townhouses.

(c) “Townhouses” means a dwelling unit constructed in a row of two or more attached units, where each dwelling unit is located on an individual lot or parcel and shares at least one common wall with an adjacent unit.

(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.

(3) Except as provided in subsection (4) of this section, each city not within a metropolitan service district with a population of more than 10,000 and less than 25,000 shall allow the development of a duplex on each lot or parcel zoned for residential use that allows for the development of detached single-family dwellings. Nothing in this subsection prohibits a local government from allowing middle housing types in addition to duplexes.

(4) This section does not apply to:

(a) Cities with a population of 1,000 or fewer;

(b) Lands not within an urban growth boundary;

(c) Lands that are not incorporated and also lack sufficient urban services, as defined in ORS 195.065 (Agreements required);

(d) Lands that are not zoned for residential use, including lands zoned primarily for commercial, industrial, agricultural or public uses; or

(e) Lands that are not incorporated and are zoned under an interim zoning designation that maintains the land’s potential for planned urban development.

(5) Local governments may regulate siting and design of middle housing required to be permitted under this section, provided that the regulations do not, individually or cumulatively, discourage the development of all middle housing types permitted in the area through unreasonable costs or delay. Local governments may regulate middle housing to comply with protective measures adopted pursuant to statewide land use planning goals.

(6) This section does not prohibit local governments from permitting:

(a) Single-family dwellings in areas zoned to allow for single-family dwellings; or

(b) Middle housing in areas not required under this section. [2019 c.639 §2]

Note: Sections 3 and 4, chapter 639, Oregon Laws 2019, provide:

Sec. 3. (1) Notwithstanding ORS 197.646 (Implementation of new requirement in goal, rule or statute), a local government shall adopt land use regulations or amend its comprehensive plan to implement section 2 of this 2019 Act [197.758 (Development of middle housing)] no later than:

(a) June 30, 2021, for each city subject to section 2 (3) of this 2019 Act; or

(b) June 30, 2022, for each local government subject to section 2 (2) of this 2019 Act.

(2) The Land Conservation and Development Commission, with the assistance of the Building Codes Division of the Department of Consumer and Business Services, shall develop a model middle housing ordinance no later than December 31, 2020.

(3) A local government that has not acted within the time provided under subsection (1) of this section shall directly apply the model ordinance developed by the commission under subsection (2) of this section under ORS 197.646 (Implementation of new requirement in goal, rule or statute) (3) until the local government acts as described in subsection (1) of this section.

(4) In adopting regulations or amending a comprehensive plan under this section, a local government shall consider ways to increase the affordability of middle housing by considering ordinances and policies that include but are not limited to:

(a) Waiving or deferring system development charges;

(b) Adopting or amending criteria for property tax exemptions under ORS 307.515 (Definitions for ORS 307.515 to 307.523) to 307.523 (Time for filing application), 307.540 (Definitions for ORS 307.540 to 307.548) to 307.548 (Termination of exemption) or 307.651 (Definitions for ORS 307.651 to 307.687) to 307.687 (Review of denial of application) or property tax freezes under ORS 308.450 (Definitions for ORS 308.450 to 308.481) to 308.481 (Extending deadline for completion of rehabilitation project); and

(c) Assessing a construction tax under ORS 320.192 (City or county ordinance or resolution to impose tax) and 320.195 (Deposit of revenues).

(5) When a local government makes a legislative decision to amend its comprehensive plan or land use regulations to allow middle housing in areas zoned for residential use that allow for detached single-family dwellings, the local government is not required to consider whether the amendments significantly affect an existing or planned transportation facility. [2019 c.639 §3]

Sec. 4. (1) Notwithstanding section 3 (1) or (3) of this 2019 Act, the Department of Land Conservation and Development may grant to a local government that is subject to section 2 of this 2019 Act [197.758 (Development of middle housing)] an extension of the time allowed to adopt land use regulations or amend its comprehensive plan under section 3 of this 2019 Act.

(2) An extension under this section may be applied only to specific areas where the local government has identified water, sewer, storm drainage or transportation services that are either significantly deficient or are expected to be significantly deficient before December 31, 2023, and for which the local government has established a plan of actions that will remedy the deficiency in those services that is approved by the department. The extension may not extend beyond the date that the local government intends to correct the deficiency under the plan.

(3) In areas where the extension under this section does not apply, the local government shall apply its own land use regulations consistent with section 3 (1) of this 2019 Act or the model ordinance developed under section 3 (2) of this 2019 Act.

(4) A request for an extension by a local government must be filed with the department no later than:

(a) December 31, 2020, for a city subject to section 2 (3) of this 2019 Act.

(b) June 30, 2021, for a local government subject to section 2 (2) of this 2019 Act.

(5) The department shall grant or deny a request for an extension under this section:

(a) Within 90 days of receipt of a complete request from a city subject to section 2 (3) of this 2019 Act.

(b) Within 120 days of receipt of a complete request from a local government subject to section 2 (2) of this 2019 Act.

(6) The department shall adopt rules regarding the form and substance of a local government’s application for an extension under this section. The department may include rules regarding:

(a) Defining the affected areas;

(b) Calculating deficiencies of water, sewer, storm drainage or transportation services;

(c) Service deficiency levels required to qualify for the extension;

(d) The components and timing of a remediation plan necessary to qualify for an extension;

(e) Standards for evaluating applications; and

(f) Establishing deadlines and components for the approval of a plan of action. [2019 c.639 §4]

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 (2019) (last ac­cessed May 16, 2020).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2019, Chapter 197, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano197.­html (2019) (last ac­cessed May 16, 2020).
 
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. Currency Information