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A New Addition Bound for the Graveyard of Bad Land Use Ideas

Senate Bill 766 has featured prominently in the press recently.  It is a priority bill for the Governor and for some segments of the real estate and business community, particularly those who are frustrated by the Portland North Reach Plan because of the environmental and fiscal exactions placed on industrial development which they view to be a disincentive for job growth.

These forces got together and formulated a bill to “streamline” the process for granting industrial development land use approvals inside urban growth boundaries.  Under the bill, those cities which opted into the system would have an “expedited site review” process for those developments.  Notice would be sent only to those owning property within 100 feet of the industrial land, so that environmental or other watchdog groups (such as 1000 Friends of Oregon) would not be notified or be able to challenge the decision.  The developer could then choose whether to have the project reviewed by a newly-created “Economic Recovery Review Council,” a rump gathering of state bureaucrats, who are generally unfamiliar with local conditions or by the local government with appellate review by a hearings officer.  The decision, made without a hearing based solely on written comments from those notified, must be made within 63 days after the application is deemed complete.  Appeals bypass LUBA and go directly to the Oregon Court of Appeals.     Once the Council approves the project, all state agencies and local governments are bound by that approval and must issue all permits. 

The premise of the bill is that, if only Oregon had a supersiting process for industrial land, a cornucopia of jobs would follow.  Like too many other bad ideas that fill the statute books, the premise is wrong and the bill appears to make political hay by appearances, while doing nothing on the ground.  Those who decry the byzantine complexity of our land use system appear to have no difficulty in adding yet another special process, with special standards, and a special system for administrative and judicial review designed with limitations and traps for the unwary, with the result in this case that there is no effective judicial review of a permit at all.  The template for this process is a 1995 concoction called the “Expedited Land Division,” an idea of the Oregon Homebuilders to limit public participation; it lies unused in the statute books.  The purpose of the 1995 legislation was to eliminate public participation and speed things up, but even homebuilders found that legislation less than useful.

The identified problem is a continuing loss of middle wage jobs from our economy, particularly good jobs for persons without advanced education or training.  This is not only an Oregon problem, it is a national problem, and a problem for many other developed nations, but there is no study that correlates the gain or loss of middle income jobs with the speed of issuing development permits for industrial sites.

 But why does feelgood legislation seem so popular to respond to the recession?  The answer lies in the fact that it avoids the major problems facing industrial development – the lack of sufficient infrastructure financing and an educated workforce.  Previous attempts to increase jobs by providing “shovel ready” industrial sites or using abandoned mill sites have scarcely made a difference.  It is development incentives such as government funded infrastructure, rather than a shortage of industrial land or complications with the approval process for industrial development that the legislature must address.  In its North Reach decision, LUBA implemented state laws that favored designation and retention of industrial lands.  In most cases, a faster process is not the answer.  Local land use decisions in urban areas must be rendered within 120 days under current law and job-creating industrial land uses are among the most desirable land uses.  Rather, working with the business community to fund infrastructure so that those lands already designated for industrial development as required by Statewide Planning Goal 9 to develop is the most significant contribution government may make to the recovery.  Perhaps it is too tempting to joust with windmills than to deal with real problems.  The legislature cannot command jobs and development by passing laws on land supply, but must face the hard work of training the workforce and getting industrial sites served.  That requires work, not words.

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We regularly update clients about changes in real estate law and on industry trends. This includes briefing clients on legislative proposals in the federal tax, housing and other legal areas affecting their businesses. Staying current enables you to anticipate and prevent legal problems as well as capitalize on new developments.
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