Portland is ignoring state housing laws and inflating the cost of housing. A mix of ignorance and arrogance is to blame.
The problem is not with Portland's building or zoning codes, but with how the Portland Bureau of Transportation issues driveway permits. It may seem counterintuitive to think that a driveway matters that much. But driveway location(s) and width(s) often dictate whether or not a project is feasible — from single family homes to apartments.
Oregon law prohibits public officials from making permit decisions based upon personal opinion or judgment as to what the standards for approval ought to be. However, that is exactly what PBOT does.
Title 17 of the City Code — under which PBOT operates — provides no clear and objective standards of approval which entitle an applicant to a driveway permit.
Instead, the ordinance grants PBOT a subjective veto: "No provision of this Title shall be construed to create a right in any individual to a permit which in the opinion of the City would be inconsistent with the public interest."
PBOT may deny any driveway that, in the director's judgment, is "not suitable in the circumstances," or not modified as the director "may deem necessary." This elevates personal opinion over standards in ordinances.
With the apparent "right" to rule by personal opinion, PBOT regularly requires changes to on-site development. While PBOT has no jurisdiction over private property, its unchecked authority to deny a driveway permit effectively gives it that power. Oregon law forbids this type of government regulation of development.
Since 1977, Oregon has required that all development be regulated by standards and criteria in ordinances that are the sole basis for permit decisions. Title 17 does not comply.
Since 1981, Oregon has required that development of housing "at particular price ranges" be regulated only by clear and objective standards. (Objective standards involve no personal or subjective judgment by a public official and are uniformly verifiable by reference to the ordinance.) Title 17 does not comply.
Since 1999, Oregon has required that clear and objective standards be "clear and objective on the face of the ordinance."
Since Aug. 15, 2017, Oregon has required that development of all housing within the urban growth boundary — regardless of price — be regulated only by clear and objective standards on the face of ordinances. (With exceptions for the central city, certain regional centers and historic districts.) Title 17 does not comply.
When developers have to redesign their projects to meet subjective standards they experience delays and increased costs. Those costs can be extremely significant.
The pool of builders who can afford — or are willing to take — this level of risk is much smaller than the otherwise available pool of builders. This reduces competition, reduces the number of houses built, decreases design variety, and increases housing prices.
Currently, PBOT imposes building design standards, shared driveway requirements, on-site parking standards (size, configuration and slope), increased setbacks, and prohibits backing into the street — all of which are not based upon clear and objective standards in any ordinance and conflict with existing ordinances. This violates state housing laws.
Portland must revise Title 17 to comply with state law. In the meantime, Portland, which includes PBOT, cannot continue to deny applications for housing development located within the urban growth boundary unless the application fails to meet clear and objective standards on the face of an ordinance.
Mari Ives is the lead design/general counsel of Valhalla Custom Homes, a small, family-owned homebuilding company.
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