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Summer 2023: Net Zero

Turning 50: The Future of Oregon’s Land Use System

David O Bechtold and Greg A Hibbard


  • Explores Oregon’s land use system as 2023 marks the 50th anniversary of the system’s foundational legislation.
  • Addresses how the land use system has been successful in its implementation over the last 50 years.
  • Discusses the current issues that the Oregon land use system faces and how these problems may be addressed.
Turning 50: The Future of Oregon’s Land Use System
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Oregon is defined by many things—glacier-capped volcanoes, towering Douglas firs, quirky Portland, stunning rocky coastlines, and endless sage-covered flats, just to name a few. But if you were to poll Oregon attorneys to identify an aspect of law particular to the state, land use would stand out as something Oregonians view and do differently than elsewhere in the country. At a basic level, what differentiates Oregon’s system from most is a set of laws and regulations that require local governments to craft comprehensive land use plans that are consistent with 19 statewide planning goals. The body that sets the statewide planning goals, the Land Conservation and Development Commission (LCDC), reviews and acknowledges (approves) each local plan to ensure that every local government is working toward achieving the same goals. Those acknowledged plans become local land use law, and local development projects can only be approved if they conform with those plans. A statewide administrative body, the Land Use Board of Appeals, hears appeals of development approvals to ensure that all proposed projects comply with acknowledged plans. As designed, the system strikes a balance between ensuring that all local governments are working toward the same goals in a coordinated fashion and harnessing local expertise on how communities can and should develop. Few other states have the same degree of state-level coordination in the land use arena as Oregon. As a result, local communities in many states often grow in haphazard fashion.

This year, 2023, has been something of a victory lap for Oregon’s land use system as it marks the 50th anniversary of the system’s foundational legislation that the Oregon legislature passed in 1973 as Senate Bill 100 (after 50 years, many Oregonians still colloquially refer to the bill simply as “SB 100”). While SB 100 gets much of the credit for creating the system, the system’s origins can be found as early as the 1960s, when various tax reforms were passed to protect farmland from development, and in the 1969 passage of SB 10, which first required Oregon’s cities to create plans and zoning requirements. In 1973, which has been described by Oregon scholars as a “Magical Year,” numerous social, environmental, and political stars aligned to allow Oregon to take bold steps to reform its land use system. See Edward J. Sullivan, The Quiet Revolution Goes West: The Oregon Planning Program 1961–2011, 45 J. Marshall L. Rev. 357, 367 (2012). In perhaps the most notable gubernatorial address ever given to Oregon’s legislature, Governor Tom McCall’s January 8, 1973, address called for the passage of SB 100 by arguing that the state needed protection from “[s]agebrush subdivisions, coastal ‘condomania,’ and the ravenous rampages of suburbia.” Governor McCall was backed by a unique coalition of Oregonians, which included not only farmers and foresters concerned with ensuring that working agricultural lands and timberlands were not taken out of production by suburban development, but also environmentalists seeking to protect the state’s cherished natural treasures. It seems like 1973 was indeed magical, as many of these groups have had rare occasion to see eye-to-eye in the subsequent 50 years.

While many of the stakeholder groups who championed SB 100 have since come to odds with one another, the 1973 commitment to the cause has largely held with the original stakeholders. Today, some see Oregon’s land use system as an important environmental protection tool guarding against ill-advised development—particularly because Oregon does not have a state environmental policy act. Others see it as a promise to the state’s future farmers and foresters that there will be cropland to till and forests to sustainably harvest. Yet, although Oregon’s land use system is widely cherished, it has not developed without resistance or controversy. It has survived numerous legal attacks and well-funded ballot initiatives. Ultimately, today, SB 100 is a part of Oregon’s cultural fabric, and holds something of a sacred ground in many circles. See, e.g., Jeff Mapes, Growing Oregon, OPB: In the News (six-part series on the history of Oregon’s land use system).

SB 100 has been successful in achieving many of its original goals. One of the tools employed by the system is to establish urban growth boundaries around cities. That tool has been effective. When one drives outside of an Oregon metro area and crosses the urban growth boundary, the city changes to farm and forest almost instantaneously. A first-time visitor who flies into Portland and then takes the short drive up onto scenic Mount Hood will be surprised by the large swaths of lands that are still growing crops and trees. These lands, with tremendous views of the mountain and a quick commute downtown, would surely have grown a healthy crop of mini-mansions in almost any other state. This is the outcome of SB 100—it has prevented the conversion of large areas of working forests and farms into suburbia. By keeping these lands working, Oregon not only looks and feels different, but those lands also provide valuable ecosystem services by sequestering carbon, providing clean drinking water, and serving as critical wildlife habitat. Since the passage of SB 100, Oregon’s population has nearly doubled from 2.2 million in 1973 to 4.2 million in 2021, but Oregon has consistently developed its cities to be denser and has fought the trend of broadening the footprint of development as well as any state could. Without the safeguards of SB 100, Oregon would unquestionably be a very different place.

Of course, not all Oregonians are thrilled with SB 100. By significantly restricting the ability to develop vacant land, SB 100 raises valid property rights concerns. It also depresses the market value of undeveloped lands in highly sought-after areas compared to other states. For example, if one drives down Oregon’s Coastal Highway 101, working forests can often stretch as far as the eye can see. Million-dollar ocean views on privately owned land are occupied by growing crops of trees—not the beach houses one would expect. Cashing in on these scenic views would be a windfall for the current owner of the land, but, in many cases, that is not an option. By committing Oregon’s land base to long-term sustainable forest and agricultural usage, Oregon has also taken one of the most valuable property rights away from landowners. That SB 100 has made Oregon what it is today in large part on the backs of private landowners should not be taken lightly.

Reflecting on the 50-year anniversary begs the question of what the future of Oregon’s land use system will be. Some scholars have theorized that the system “will not likely end with the bang of a frontal assault; however, it may end with the whimper of incremental erosion.” Sullivan, supra, at 395. In 2023, the biggest risks we see to the system are (1) immediate crises that the system is poorly designed to address and (2) the state regulator ignoring how the system is intended to work.

Oregon has two immediate and critical needs that have reached head-on collisions with the current land use system: affordable housing and silicon semiconductor manufacturing. Oregon is experiencing a homelessness crisis that is largely fueled by high real estate and rental costs. Oregon desperately needs to build large volumes of affordable housing units in a short period of time, but the system is not designed to do anything fast, and buildable land comes at a premium.

Additionally, the federal CHIPS and Science Act of 2022 has made billions of federal dollars available to build semiconductor fabrication facilities in the United States. Oregon is a leader in such fabrication and relies on this industry. However, to get in line for this funding, Oregon must have 500-acre, shovel-ready sites available. Given the numerous constraints created by the system, Oregon likely needs to legislatively waive the SB 100 program to get in line for funding under the CHIPS and Science Act.

The Oregon legislature has taken recent steps on both of these fronts to loosen the land use systems requirements. For instance, on March 29, 2023, Governor Kotek signed House Bill 2001 (HB 2001) into effect. That bill is aimed at identifying and meeting future housing needs through building targets for various income levels over the next 20 years. Additionally, HB 2001 requires LCDC to promulgate rules under various land use statutes by January 1, 2025, and January 1, 2026. In promulgating those rules, HB 2001 requires LCDC to prioritize clarifying urban growth boundary amendments to allow for the anticipated growth within urban boundaries. Essentially, the legislature has ordered the state land use regulator to take urgent steps to make it easier to build affordable housing. In the same legislative session, Governor Kotek signed Senate Bill 4 on April 13, 2023. That bill gives Governor Kotek temporary authority through 2024 to move urban growth boundaries up to eight times if it is the only way a semiconductor project can move forward. Essentially, the governor is given unilateral authority to industrialize farm and forest land if needed to meet the CHIPS and Science Act requirements. This is entirely unprecedented in Oregon. Only time will tell if these kinds of legislative quick-fixes become a norm.

On another front, LCDC—the commission of the state oversight agency—has, in the eyes of many, begun to push the envelope of its powers and has sought to further curtail development by tightening the reins on local governments. This tightening of the reins, in combination with major development needs in Oregon, risks significant erosion of the system. In August 2022, LCDC adopted a major rule package—the likes of which had never before been seen in Oregon. The rules, referred to as the “Climate-Friendly and Equitable Communities” or “CFEC” rules, are well-intentioned and purport to address pressing climate and equitable concerns throughout Oregon. However, because the rules were far more prescriptive than prior requirements on local governments, the rules were met with significant legal challenge shortly after their adoption.

Specifically, a coalition of 13 cities and a single county, and multiple industry groups representing home builders, business and industry, Realtors, and truckers, have separately challenged the rules on a number of procedural and substantive bases. Among their claims are that (1) LCDC failed to comply with multiple procedural rulemaking requirements; and, more notably, (2) LCDC reached beyond the scope of its authority by imposing prescriptive requirements that bely the well-established distinction between state authority and local government authority; and (3) LCDC purported to give itself authority to invalidate local law despite lacking the statutory authority to do so. Those challenges have gained support from multiple amici curiae, including the League of Oregon Cities. Thus, as we turn the page to a new half-century of Oregon’s land use system, the CFEC rules present the new legal question of precisely how intrusive the state can be when it comes to requiring individual communities to zone and develop in particular ways.

In conclusion, 50 years ago, Oregon established a unique land use system, and to good result. Today, that 50-year-old system faces new challenges and is at risk. The next five to 10 years will likely define the next chapter of land use in Oregon. Elements of the existing system will certainly continue forward, but what, if any, changes will occur is a question only time can answer.