City's infill plan faces legal challenge
The Portland City Council is on track to consider the most ambitious plan to encourage additional housing in single-family neighborhoods in the nation.
But, as the appointed Planning and Sustainability Commission prepares to refer the plan to the council, the process is under a legal attack. The Multnomah Neighborhood Association is challenging it at the Oregon Court of Appeals. The association believes the council violated state land use planning laws and city rules when it approved a policy encouraging so-called missing middle housing late in a lengthy land use planning process that concluded in 2016.
"The missing middle housing policy was adopted as an amendment at the last minute in a multi-year process of producing the 2035 Comprehensive Plan," says James Peterson the association's land use committee chair. "It is extremely far reaching and it should not have been adopted without the due process guaranteed by Tom McCall's historical Senate Bill 100, the foundation of Oregon's land use decisions."
The City Attorney's Office declined to comment on the appeal because it is pending, but has previously argued the council did nothing wrong.
The rezoning is based on the findings of the Residential Infill Project being undertaken by the Bureau of Planning and Sustainability. The current recommendations would rezone 96 percent of single-family neighborhoods to allow as many as four housing units to be built on virtually every lot. It would allow duplexes, triplexes and four-plexes to be up to 1,000 square feet larger than a single-family house.
That is more ambitious than the plan to rezone single-family neighborhoods recently adopted by the Minneapolis City Council that is being hailed as the biggest move by any city to address the affordable housing crisis. That plan would allow only up to three units per lot, and duplexes and triplexes could not be larger than single-family houses, however.
The current infill project recommendations are even more ambitious than what the Portland council previously called for. The comprehensive plan update approved in June 2016 included a policy to encourage missing middle housing within a quarter mile of designated centers, transportation corridors with frequent service transit, and high-capacity transit stations. The policy also called for "a scale transition between the core of the mixed use center and surrounding single-family areas."
When the project staff first mapped those proposed changes, only 60 percent of single-family neighborhoods would be rezoned. Parts of East Portland were intentionally excluded because they do not have enough infrastructure — streets, sewers, water lines and schools — to support that much additional development.
But an economic analysis conducted of that version concluded it would create little additional housing over the next 20 years. In response, the commission directed the staff to study rezoning nearly all single-family neighborhoods and offering size bonuses for new duplexes, triplexes and four-plexes. The new Johnson Economics analysis released in early December concluded those changes would result in almost twice as many new homes being built in Portland over the next two decades, although most will be smaller rental units.
The commission is scheduled to approve the plan on March 12, sending it to the council for a series of hearings and a final vote this summer. Oregon House Speaker Tina Kotek (D-Portland) also plans to ask the 2019 Oregon Legislature to require all larger cities to adopt such changes.
The current project recommendations are being praised by affordable housing and smart growth advocates, who say it will encourage a greater variety of more affordable housing throughout the city, including in the most desirable parts of town, where relatively few people can currently afford to live.
Opponents say it will destroy the character of many city neighborhoods without any guarantee that much truly affordable new housing will be built. The Johnson Economics report estimates the average rent of the new units at $1,823 per month.
The Multnomah Neighborhood Association challenged missing middle housing policy when the Comprehensive Plan update went to the state Department of Land Conservation and Development for approval, as required by state land use planning laws. .
The update was upheld on appeal by the appointed Land Conservation and Development Commission. The association then retained Portland-based land use attorney Michael Gelardi and appealed that decision to the Oregon Court of Appeals, as allowed by state law.
The appeals court is in the process of determining which issues can be considered in the appeal. Gelardi and the City Attorney's Office are filing briefs on the matter. It is unclear whether the court will rule before the council considers the rezoning plan this summer.