The Oregon legislature recently completed its 2021 legislative session, with mixed results for Oregon property owners. As expected, OPOA was active in every important land use and property bill in the session, playing either the lead or second role in passing, modifying, or stopping each bill.
Due to the COVID, the Capitol was quiet and empty this year, as the legislature passed rules prohibiting the public (including the lobby) from entering the building. The session was conducted almost entirely by virtual meetings and online communications. Legislative committees scheduled Zoom meetings to hear bills, work was conducted by text, email and telephone rather than face-to-face, and the public was not given the opportunity to meet with their elected officials.
“I understand and respect the legislature’s decision to have a virtual session,” said OPOA President Dave Hunnicutt, “but it made it tough for legislators to understand the true impact of the bills they were debating. Having the public in the building is important to remind legislators of the impacts of proposed new laws, and that was missing.”
Despite the unusual session, the legislature approved a number of bills that impact Oregon property owners. “It was definitely a mixed bag for Oregon property owners this session,” said Hunnicutt. “The limitations on access into the Capitol made it tough, but OPOA was able to stop really bad bills, significantly weaken others, and pass a couple of helpful bills. We’re proud of our work this session.”
Here is a run-through of the land use and real property bills that were debated this session, and what happened to each bill:
House Bill 2289 (PASSED): House Bill 2289 was OPOA’s top priority. Over 4,000 Oregon families lost homes and businesses in the 2020 wildfires, including the Labor Day fires in western and southern Oregon. This bill creates a simple, direct, inexpensive, and fast process for these property owners to rebuild a home or business that was destroyed in the 2020 wildfires. The bill bypasses the normal land-use laws and permitting requirements, including applications, public hearings, and potential appeals, and allows the property owner to rebuild quickly without the usual difficulties that are unique to Oregon. The bill is already effective. This was a significant win for Oregon property owners, and will serve as a guide for future disaster recovery impacts.
House Bill 2312 (PASSED): Since the formation of this country, the law has allowed a right of action allowing a court to resolve a property-line dispute between neighboring property owners. If two neighbors dispute the proper location of the boundary between their parcels, the law gives them the right to seek a decision from the court as to the correct boundary line. This bill requires state and local planning agencies and departments to recognize and honor a court judgment that establishes a boundary line and resolves a dispute between two neighbors. While this seems obvious, the bill was necessary because the Multnomah County Planning Department, unfazed by centuries of settled law and both the federal and state Constitutions, decided that a judgment entered by a local trial court judge in a property line lawsuit that changed the boundaries between two parcels resulted in both parcels becoming “illegal”. The legislature made it clear that a judge’s decision should be respected.
House Bill 2488 (FAILED): House Bill 2488 was an effort to create new “environmental justice” regulations by piggybacking them onto “social justice” issues, and using land use laws to achieve the result. The result was a mess that did far more harm to social justice than good. At one point, the bill would have required local governments to “identify and remedy disparate impacts when making any land use decision to achieve a fair distribution of the benefits and burden to the greatest extent possible.” What this means is that every Oregon property owner who submitted a land use application to use their property would be required to prove that their proposal met this standardless requirement, even for the most mundane purposes like a new outbuilding or a replacement dwelling. If passed, new development in Oregon would have ground to a halt. As OPOA pointed out, in many cases the proposed “environmental justice” laws, which would force more Oregon families into ever shrinking urban areas, make it more difficult and expensive to drive cars, gentrify existing neighborhoods occupied by communities of color and force lower-income residents to the edges of town, and perpetuate a land-use system that has had tremendously negative impacts on poor and BIPOC families, would actually be worse for “social justice” than doing nothing. If we want to start remedying disparate impacts, we should start with a fresh look at our state land use laws and their impacts on the poor and communities of color, something that OPOA would immediately support.
House Bill 2611 (PASSED): For most rural property owners, the outbuildings on their property serve a variety of purposes. The same is true for Oregon farmers and their barns. It is uncommon to find a barn in Oregon that is devoted entirely to farm use, with no other activity occurring within. Whether the barn is used to store an old car, park the family RV for the winter, store some old furniture, or used as a repair shop for the family farm and non-farm equipment, barns are almost always used as multi-purpose buildings. Oregon law has long exempted barns and other accessory buildings from the commercial building code, as long as the barn is used for farm use. Recently, a few local building officials have developed a “zero tolerance” policy which requires a farmer or other rural resident making any non-farm use in their barn, no matter how minor, to comply with the commercial building code. The construction costs to comply typically exceed $100,000, and would be triggered when the farmer makes non-farm uses like the ones listed above. HB 2611 clarifies state policy, making it clear that farmers and other rural residents won’t have to bring their barns/outbuildings up to commercial building code standards just because there’s some non-farm activity within the building.
House Bill 2654 (PASSED): The idea behind the bill is extend broadband services into rural parts of Oregon, so that rural Oregon families can have access to the internet and other services supplied electronically. This has universal support. The problem is that the first version of the bill would have allowed the rural electric co-ops to use their existing powerline easements for new broadband hardware without any regard to the impact of that new hardware on the rural Oregon property owners whose property was being burdened, essentially rewriting thousands of rural easements that had been negotiated between utilities and Oregon property owners over the last decade. OPOA, along with the Oregon Farm Bureau and representatives for Weyerhaeuser, argued that the proponents of the bill could achieve their objectives in a manner that didn’t override existing easements, protected rural property owners, and created a fair system of resolving disputes if they were to occur. Fortunately, after extensive negotiations, the utilities agreed, and the bill was modified to create a win-win for rural Oregonians.
House Bill 2927 (PASSED): This bill is a good example of what happens when politicians and government officials try to solve problems that are outside of their area of expertise. The primary purpose of the bill is to reorganize the Oregon Office of Emergency Management, an issue that does not have a direct impact on OPOA’s mission for Oregon property owners. Normally, OPOA would not get involved with a bill like this. Unfortunately, hidden on page 56 of an 89 page behemoth bill was Section 107a, a small section of the bill with massive consequences to Oregon. That section would have required the establishment of 300 foot “wildfire buffer zones” on all sides of a dwelling. Within the buffer zone, all trees would be required to be removed. A 300 foot buffer zone on all four sides of a dwelling amounts to a 600’x600’ treeless area, which is nearly 8.5 acres in size. When OPOA pointed out to the committee hearing the bill that an 8.5 acre treeless area around every home in Oregon would result in the complete removal of all trees from urban areas, and significant portions of trees in rural areas, and that maybe the sponsors of the bill should think through the “logic” of their proposal, Section 107a was quickly removed from the bill. Unfortunately, when large, complicated bills are drafted, mistakes like this are an all too common occurrence. Fortunately we were able to catch this one.
Senate Bill 405 (PASSED): Senate Bill 405 provides important protections for property owners with “non-conforming uses” on their property who were forced to abandon their normal activity due to the various state and local COVID-19 restrictions. It also protects the same properties from the impacts of the 2020 Labor Day wildfires. When a property is used in a way that was authorized when the use began, but would no longer be authorized under current law, the use is considered “non-conforming”. For example, a school building that has been used for decades in an area where schools would no longer be allowed under state zoning laws is considered a non-conforming use, and can continue to operate as long as the use isn’t discontinued or abandoned for a certain period of time, usually one year. If a non-conforming use is discontinued or abandoned for more than the allowed time, it is lost, and cannot be restarted. This proved to be a real problem for property owners who had non-conforming uses that could not be conducted due to the COVID-19 restrictions imposed by the state or local government, or uses that were lost to the Labor Day wildfires. It is unfair to punish property owners with non-conforming uses on their property by claiming that the use was abandoned, when the sole reason the use was abandoned was because it was prohibited by a COVID-19 shutdown order or it was destroyed in the 2020 wildfires and couldn’t be rebuilt in time to meet the deadline. SB 405 fixes that problem.
Senate Bill 762 (PASSED): Sometimes the most important victories in the legislature are bills that are modified or defeated, rather than bills that are passed. Senate Bill 762 is one such example. This was the legislature’s primary wildfire bill for the 2021 session. It contains multiple potential areas for significant new restrictions and requirements for Oregon property owners, both urban and rural. It is a dangerous bill that will be used by some groups and legislators to achieve limits on Oregon property owners that have nothing to do with preventing wildfires or limiting the damage resulting from them. Fortunately, OPOA, working with legislators from both parties, was able to remove language from the bill that would have locked nearly every rural Oregon property owner into the “wildland-urban interface” (WUI) for purposes of Oregon statute, where only the legislature could remove the designation. Inclusion in the WUI will result in new restrictions and significant new development requirements for Oregonians, making it critical that the maps are accurate and only contain areas where there is a mix (interface) of housing clusters (urban) and wildland fuels (wildland). Telling a farmer on 100-acres in Benton County that their property is “urban” and included in the WUI is silly, and locking that definition into statute is even worse. More than anything else, keeping this language out of statute was a huge win for Oregonians, and a defeat for the most ardent supporters of the bill, who used the wildfires as an excuse to achieve policy objectives that they would otherwise not be able to obtain.