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Update on the appeal of Eugene’s so-called “Middle Housing” Code Amendments. (July 13, 2023)

​FLASH! The Court of Appeals has “reversed and remanded” LUBA’s flawed decision affirming Eugene’s so-called “Middle Housing” code amendments. The Court found that the City of Eugene had failed to comply with Statewide Planning Goal 11 and had not ensured there would be sufficient infrastructure for the up to FIVE TIMES increase in residential density.

_{Dateline: July 12, 2023}
Today, the Oregon Court of Appeals “reversed and remanded” the Land Use Court of Appeals affirmation of Eugene’s “Middle Housing” Code Amendments.

The Court found that the City of Eugene had failed to evaluate the adequacy of pubic infrastructure and services to support the increased density allowed by the so-called “middle housing code amendments” that the City Council adopted in Ordinance No. 20667. From a legal perspective, the City failed to comply with the requirements of Statewide Land Use Planning Goal 11 Public Facilities and Services.

The effect of this decision is that Ordinance No. 20667 was never in effect, and any development that relied on the amendments and was approved by the City was unlawfully approved.

This was not a “legalistic” decision. The City Planning Director and City Manager misled the City Council into the false belief that the City did not have to be sure there was adequate sewer and water service, police and fire protection, and other critical safety and environmental infrastructure and services would be in place before up to a five times increase in housing density.

Because the City Manager failed to have staff address this obvious requirement for safe and sound neighborhoods, it will now take some time before the City will be able to complete the analysis and adopt a new ordinance.

This win for neighborhood residents appears to be the only case where an Oregon City as had its response to House Bill 2001 (2019) rejected by the Court.

Notably, appellants Paul Conte, Ted Coopman, and Gary Nance prevailed over the well-funded opposition from not only tax-paid City attorneys, but also attorneys for the 1000 Friends of Oregon, Home Builders Association of Lane County, and Better Housing Together, and a number of local advocates for zoning deregulation.The Court has ordered the City of Eugene and the Homebuilders to pay Conte, Coopman, and Nance for the court costs they encountered in the appeal.

Click here to read the Court Opinion. Stay tuned.

January 27, 2023. Unfortunately, the LUBA Board continued their channeling of Aileen Cannon, i.e., writing what would be was a laughably bad opinion., except it now is case law.

Click to read the LUBA decision with highlighted portions and comments.

Boiled down, the attached opinion has very little analysis. Mostly it simply states uncontested history, laws, or legal principles. Then with little argument, it simply says “we agree with what the City said.”

Here are the takeaways. The attached “Decision” has highlighted portions and comments that clearly show how the Board member that wrote this decision failed to give any serious consideration of the appeal arguments.

1. There is no requirement or deadline for any City to evaluate, plan for, or build adequate infrastructure for any area before approving extreme increase in density with the concomitant need for water, sewer, etc. I call this the “SITS” decision — “Sh*t In The Street.” (See pages 6, 7, 9, 11 & 13 of the Decision)

This decision also invalidated both LCDC’s “Middle Housing” OAR requirements and LCDC Model Code standard requiring sufficient infrastructure before allowing “Middle Housing” development.

2. All Cities are now allowed to apply discretionary, rather than clear-and-objective approval criteria, for “Middle Housing” development in the Willamette River Greenway. As we’ve seen, Eugene Planning Division staff has used this “discretion” to approve destructive development in the Greenway. (See page 19 of the Decision.)

This decision also invalidated both LCDC’s “Middle Housing” OAR requirements and LCDC Model Code standard requiring clear-and-objective criteria before allowing “Middle Housing” development in the Greenway.

3. Effectively allows Eugene (and potentially other cities) to provide “incentives” — e.g., 25% reduction in lot size — under an “income-qualified” (aka “affordable”) “Middle Housing” scam which has no requirement for there to actually be any affordable housing made available. In other words, all middle housing can now be developed on Eugene lots that are only 75% of the “pretend” minimum lot size. (See page 24 of the Decision.)

4. Allows a developer to “game” the “Middle Housing” “dwelling size” calculation to get the lot size reduction for dwellings much larger than the “pretend” max average dwelling size. (LUBA admits: “the standard does not address all architectural variations that might exist among residential buildings within the city” and yet magically claims the calculation is “clear.”  See page 22 of the Decision and pages 1-3 of the Reply Brief.)

5. Allows a developer to “game” the “Middle Housing” rent by using a value for “Area Median Income” that is not based on household size and bedrooms. Thus, developers can charge more than if the rent were based on potential occupancy. (LUBA simply ignored that HUD has TWO distinct definitions of AMI. See page 23 of the Decision and pages 3-4 of the Reply Brief.)

LUBA’s flawed decisions was appealed to the Oregon Court of Appeals on February 16, 2023. Click here to read the Notice of Intent to Appeal. Stay tuned.

BACKGROUND

Ted Coopman, Paul Conte, and Gary Nance filed appeals based on significant errors by the Eugene City Council in adopting Ordinance No. 20667, the so-called “Middle Housing” Code Amendments.

Petitioner Ted Coopman, represented by attorney Charles W. Woodward, IV, appealed that the City Council approved an extreme increase in allowable density, but failed to evaluate the impacts and current adopted plan for infrastructure, facilities, and services. The City failed to conform to Statewide Planning Goal 11 requirements.

Intervenors-Petitioners jointly appealed that the City Council approved an extreme increase in allowable density and lot coverage in the Willamette River Greenway, but failed to evaluate the impacts and current approval criteria for Willamette River Greenway development permits. The City failed to conform to Statewide Planning Goal 15 requirements.

The cases against the City are presented in the following two appeal briefs:
Petitioner’s Appeal Brief — Goal 11 Infrastructure
Intervenors’ Appeal Brief — Goal 15 Willamette River Greenway and Clear & Objective Standards

The City Attorney and four other Intervenors-Respondent filed response briefs on December 13, 2022. Their arguments were based on various far-fetched reasons the City could totally ignore the requirements of Goals 11 and 15. If the City prevails, it would allow intensive development in neighborhoods where there is insufficient water, sewer, and/or electricity to serve the increased demand adequately and safely. It would also allow intensive development in the Willamette River Greenway without any protections.

The ironies are inescapable:
* The Home Builders Association argues that they be allowed to develop large, multi-unit housing on tiny lots where the future residents wouldn’t be assured of adequate and safe services.
* 1000 Fiends of Oregon argue that the Willamette River Greenway in the entire valley be stripped of protections for multi-unit development that covers most of the land.

Conte and Nance filed the following two reply briefs that rebut the City and other respondents’ arguments:
Intervenors’ Reply Brief (1) — Goal 15 Willamette River Greenway
Intervenors’ Reply Brief (2) — Clear & Objective Standards

Coopman filed several response briefs on December 27, 2002. (To be posted shortly).

Oral arguments were held January 4, 2023.

LUBA’s affirmed the City’s ordinance on January 27, 2023.

An appeal to the Court of Appeals is almost certain.

First Report! With minimal changes, the City Council adopted the city staff’s extreme deregulation of residential zoning across all of Eugene.
. Despite opposition by over 1,500 Eugene residents who cautioned against the harm this de facto five-fold increase in allowable density would cause to lower-income households and the climate, the Mayor and four councilors imposed their zealotry on our community.
. The Mayor and four of her allies defeated 5-4 a motion to adopt only those code amendments required by HB 2001 in order to meet the State’s June 30th deadline and engage the community before considering further deregulation. Voting “No!” were:

• Ward 2 Councilor Matt Keating
• Ward 3 Councilor Alan Zelenka
• Ward 4 Councilor Jennifer Yeh
• Ward 7 Councilor Claire Syrett
• Mayor Lucy Vinis (breaking the tie, despite the clear signal of a divided community)

Voting “Yes” were:

• Ward 1 Councilor Emily Semple
• Ward 5 Councilor Mike Clark
• Ward 6 Councilor Greg Evans
• Ward 8 Councilor Randy Groves

The following changes to the staff proposal were adopted:

• Retaining the R-1 Maximum Building Height of 30 feet plus an additional 7 feet for roof areas with a slope of at least 6-over-12, instead of the staff’s proposed 35 feet plus 7 feet.
• Increasing the maximum lot coverage from the current 50% to 60%, instead of the staff’s proposed 75%.
• Exempting off-street parking requirements for lots that are within 1/4 mile walking distance of an EmX stop, instead of a wider exemption in the staff proposal.

The Council took no action on the following proposed changes:

• Protecting the Willamette River Greenway and other Goal-Protected Lands
• Ensuring adequate infrastructure (e.g., storm and sanitary sewers) before allowing much denser, so-called “Middle Housing” development.
• Limiting the use of new so-called “middle housing” as Short-Term Term rentals (aka “Airbnb’s”), which would reduce any additional housing that might be available to homeowners.

The final several Council meetings were plagued with lies, misleading claims, ad hominem attacks on opponents, and nonsensical arguments, too numerous to cover in this initial report. But as examples:

False statements that Springfield and Bend have adopted 60% lot coverage. Keating started with this lie and several other councilors repeated the claim.
. Staff never spoke to correct this claim, although it’s easily disproved by a quick check of the two cities’ code, which is excerpted and explained here:
Springfield and Bend Maximum Lot Coverage

False statement about opponents’ analysis of lot coverage impacts. As he does repeatedly, Alan Zelenka lied about testimony submitted by opponents that increasing the maximum lot coverage to 75% from 50% would reduce the protected ground available on private property for future tree plantings.
. Zelenka attacked the analysis by falsely stating the analysis claimed four square miles of “tree canopy” would be lost, which was neither claimed nor implied. You can read the analysis here:
Impacts of allowing greater lot coverage.

Over the various meetings, Vinis, Syrett, Yeh, Keating, and Zelenka repeatedly disparaged, ridiculed, and dismissed the testimony of opponents. If you watch the webcasts of the meetings on April 18 and May 18, 23, and 24, you can witness for yourself the disrespect that these elected officials showed for anyone who disagreed with their predetermined votes.

Take Action! This is not the end-of-story. If you have not yet done so, please express your support for housing and climate justice by signing the Housing and Climate Justice Petition to the Eugene City Council.
To date TWELVE HUNDRED Eugene residents have signed!
Click here.

By signing the petition you will be emailed updates on how you can support a legitimate local democratic process through several actions, including:

• A ballot measure to require a citizen vote on such sweeping deregulation.
• The recall of Ward 7 Councilor Syrett. Already underway. See:
  Recall Claire Syrett website.
• The recall of Ward 2 Councilor Keating, which is under consideration.
• Appeal of the ordinance to the Land Use Board of Appeal, which is under consideration.

If you prefer, just use the “Contact” link at the bottom of the page and request to be kept informed. (Your email address is never shared with anyone.)

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Click here to skip the latest news and jump right to “A Closer Look at Housing Facts.”

POWERFUL REBUTTAL OF HB 2001 “GASLIGHTING IN R-G Read the April 24th Guest Viewpoint by Rene Kane. Click to view.

BANNED ON NEXTDOOR! Video of scurrilous ad hominem attacks by a Eugene Planning Commissioner on opponents of the staff’s extreme HB 2001 code amendments. Click to view. (about 3 minutes long)

BLOCKBUSTER! Neighborhood leaders file for ballot measure to allow voters to decide about HB 2001 code amendments.
Click to read the Press Release and the ballot measure, including the proposed code amendments.

UPDATED. Comparison of code proposal that benefits Eugene residents, not outside investors!

Development Standard	Current	Eugene Model Code	Staff Proposal
Conforms to HB 2001	NO	YES	YES
Conforms to Statewide Land Use Planning Goals	YES	YES	NO
Conforms to Eugene Comprehensive Plan	YES	YES	NO
Conforms to Eugene Special Area Zones	YES — KEEP	YES — AMEND	NO — ELIMINATE
Requires sufficient water, sewer, streets, and stormwater infrastructure	YES	YES	NO
Eviscerates Willamette River Greenway protections	NO	NO	YES
Prohibit New “Middle Housing” Use as Airbnb’s	NO	YES	NO
Detached Dwellings for Duplex, Triplex, Quadplex	NO	NO	YES
Minimum Lot Size Square Feet	Sq. Ft	Sq. Ft	Sq. Ft
Detached dwelling	4,500	4,500	844
Duplex	8,000	4,500	2,250 / 1,688
Triplex	12,000	5,000	3,500 / 2,625
Quadplex	16,000	7,000	4,500 / 3,375
Effective Density	Dwelling Units per Net Acre	Dwelling Units per Net Acre	Dwelling Units per Net Acre
Detached, single dwelling	9.7 du/na	9.7 du/na	37+ / 50+ du/na
Duplex	10.9 du/na	19.3 du/na	37+ / 50+ du/na
Triplex	10.9 du/na	29.0 du/na	37+ / 50+ du/na
Quadplex	10.9 du/na	24.9 du/na	37+ / 50+ du/na
Townhouse	9.7 du/na	25.0 du/na	37+ / 50+ du/na
Cottage Cluster	9.7 du/na	49.8	None
Maximum Lot Coverage	50%	50%	75%
Max Building Height Feet to top + Add’l for 6:12 slope roof	30 + 7	30 + 7	35 + 7
Tree Protections for Middle Housing	YES	DEFERRED	NO
More to come

For details: Click here to view a more detailed comparison of code alternatives.

Unbelievable! Planners just revealed their plan to eviscerate protections for the Willamette River Greenway and allow extreme development in previously protected areas. Click here for maps and details.

MOVING! Calls for Housing Justice by three strong community activists.

VISUAL EVIDENCE! A gallery of “Mything Middle Housing” — Debunking the false claims

Click here for the “Truth Squad’s” evaluation of Councilor Yeh’s and Syrett’s “gaslighting” on HB 2001.

PROPAGANDA ALERT! Housing Affordability — FAQ & city planners’ FMA (Frequently Misleading Answers)

READ! Seattle Times editorial blasting market-rate upzoning proposal.

Informative webinar on proposed Eugene code amendments to implement HB 2001. Presentation is about 45 minutes followed by Q&A.
Click here. Enter passcode without the quotes: “.^pw!M7&”
Start at the 34:00 time mark.

Eugene has a housing crisis.
But it may be a bit different than you assume, and you may be surprised to learn that the loud voices promoting “build-baby-build” as the solution are less interested in solving the problem than making money.

City of Eugene planners and planning commissioners propose to eliminate what the investors and developers claim are “barriers” to their development plans, without any attempt to address the real housing crises, as explained below.

Under the guise of a response to the (2019) House Bill 2001 (the so-called “Middle Housing” legislation), city planners have drafted a sweeping set of Eugene code amendments that would effectively upzone almost all of Eugene’s residential neighborhoods.

The proposed changes take a “one-size-fits-all” approach without any consideration of geography or neighborhood character. The dereuglation would allow five times the current density; much smaller lots with three, four, or more times the current number of dwellings; much taller buildings; much greater lot coverage by structures; elimination of tree protections; no provisions to accomodate parking or circulation for the additional cars that would accompany more intensive development. And there are no provisions to prevent the displacement of lower-income households by demolitions and increased rents.

This website explains housing fundamentals and illuminates some of the consequences of staff’s proposed code amendments.

Are you already up-to-speed and want to help protect low-income households? Scroll to the bottom of this page to take action.

NEW! Read “Housing the Rich” in the August 9th issue of the Eugene Weekly. Here are sources for two of the central claims in the piece:

1. Black advocacy group’s recent, well-researched report states:

“In Charlottesville, our studies and lived experiences overwhelmingly show that when we permit market-rate and luxury housing development without deep affordability, we see skyrocketing rental rates, rapidly accelerating development in previously Black-majority neighborhoods, and displacement of predominantly Black lower-income residents.“

“Why Building More Market Rate Housing Will Not Solve Charlottesville’s Housing Crisis” — Report by the Charlottesville Low Income Housing Coalition; Published April 29, 2021

2. Experts recommend developing multiple, context-based plans for smaller subareas to protect non-white residents. Lisa Bates, a preeminent expert on housing impacts on non-white and lower-income neighborhoods, explains this point.

“Unexpected outcomes of revitalization planning can have highly detrimental effects for neighborhoods, and indeed, the city as a whole. One reason for this problem is that planning departments often target policies to geographic areas that do not include a consistent level of housing quality and that do not define the extent of the housing submarket. To implement effective strategies, planners should first assess the spatial structure of the housing market in their city.“

“Does Neighborhood Really Matter?” Journal of Planning Education and Research 26:5-17 (2006)

Read the “Letters to the Editor” in the Eugene Weekly in response to “Housing the Rich“.

REFERENCES: Need additional solid research and evidence as you explore this website? Download a PDF document with annotated references and links:
Click here.

A CLOSER LOOK AT HOUSING FACTS

The true housing crisis in Eugene
Too many households in Eugene are “housing-cost burdened,” which means that after they pay the full cost of housing, they don’t have adequate, sustainable financial resources to cover the cost of other basic living necessities, such as food, medical care, etc.
More info at: “Understanding Housing-Cost-Burdened“

It is a crisis for a low-income household when they have to forego food or medical care to pay rent.

It is a crisis when a large medical expense forces a low-income household into homelessness because they have not got enough money left to pay the rent.

It is a crisis when redevelopment and/or gentrification displaces a low-income household from a home that was affordable until it was demolished or the rent was suddenly increased significantly.
More info at: Understanding Displacement

Households that are housing-cost-burdened are mostly renters in the lowest categories of household income.
The housing crisis is not spread across Eugene households evenly or equitably. Almost all housing-cost burdened households are Very Low Income (VLI) or Extremely Low Income (ELI). Almost all VLI and ELI households are renters. Definitions …

Eugene has an ample supply of housing affordable to middle- and higher-income households.
Although middle-income households in Eugene may find they can’t afford the house they would like to buy, there is a surplus of housing for purchase or rent that middle-income households can afford.

This may be an undesirable situation, but it is not a “crisis.”

Allowing more intensive infill development by deregulating Eugene’s residential zoning standards must be done only for future housing projects that will offer lower rents, not just increase investors’ profits.
The issue isn’t that zoning shouldn’t be more flexible— it should be. The issue is that deregulation of residential zoning to allow more intensive development must be paired with regulations to ensure that what gets built will contribute significantly to more housing that is affordable to low-income households.

Eugene Planning Division staff have written draft code amendments that will worsen the housing crisis, if adopted by the City Council.
City staff are recommending that the City Council approve extreme deregulation of almost all of the residential areas in the City. Only subdivisions, mostly newer and more expensive, that have restrictive homeowner covenants would be exempt from the impacts of the deregulation.

The proposed deregulation would allow extremely tiny lots (844 square feet) without street access, much higher buildings close to adjacent homes, many more dwellings on even small lots, elimination of tree protections, and otherwise unleash much more intensive, market-rate redevelopment in older neighborhoods.

Such a radical deregulation would constitute a massive financial inducement encouraging investors to redevelop lower-cost rental houses (and duplexes) as higher-cost, multi-unit rentals. The inexorable result would be the displacement of current lower-income renters in the impacted neighborhoods.

Learn how a low-income housing advocacy group is fighting to stop displacement of Black households in Charlottesville, Virginia.
Why Market Rate Development Will Not Solve Our Housing Crisis

The Planning Division staff have completely ignored the potential for displacement in their recommendations. The staff were asked for their estimate of the number of low-income households that would be displaced. Their answer: “This precise statistic is not included in the middle housing code amendments scope of work.” (Email from Planning Division on March 15, 2021.)

Renters of low/moderate-cost homes in Jefferson Westside Neighbors —
You are at risk of displacement. Once the property that you rent is upzoned to allow three, four or more rental units, the owner (or investors to whom the owner sells) will have a substantial financial incentive to demolish your house and replace it with a triplex or fourplex of apartments that rent for more than your house. Take a look at what’s already happened in the JWN:
Click to view

Even if your house isn’t a target for demolition and redevelopment, other lower-rent houses in your neighborhood will be. As the potential for redevelopment creates the opportunity for greater rents and return-on-investment (ROI), rental property owners will raise their rents to roughly match the potential ROI by selling the property to an investor.

The staff code recommendation to deregulate the JWN neighborhood is high-octane fuel for Gentrification. Say “good bye” to lower-income households!

BASIC HOUSING FACTS FOR THE EUGENE AREA
Follow the links below for evidence and discussions. [Coming Soon!]

• What are the most effective ways to reduce housing-cost burdens?
  1. Raise wages.
  2. Build more subsidized housing
  3. Implement land value recovery policies
  
  
• Can market-rate housing be built that will reduce housing-cost burdens?
  No. The current cost of materials and labor makes it impossible in Eugene to build housing that’s afforable to VLI and ELI housholds without some form of subsidy.
  
  
• Would deregulation of low-density, “single-family” zoning reduce housing-cost burdens?
  Generally, “No.” However, less stringent zoning standards for “inclusionary zoning” could reduce housing-cost burdens.
  
  
• What effect would allowing “Middle Housing” in “single-family” neighborhoods have on housing-cost burdens?
  With “inclusionary” requirements, this could help. With market-rate upzoning, this would potentially worsen housing-cost burdens because of displacement and increased rents.
  
  
• Is Eugene’s zoning code “racially exclusionary”?
  No. Household wealth is the only “exclusionary” housing factor in Eugene. Overall, non-white households have less wealth and thus have fewer available dwellings they can afford. Overall, a greater proportion of non-white households are housing-cost burdened.
  
  Planning Division staff have been unable to identify any provision of Eugene’s residential zoning code that was “racially exclusionery” or any proposed code amendment that would remediate racial exclusion. (Email from Planning Division on February 16, 2021) Learn more about the staff false narrative.
  
  
• Would building more market-rate housing have a “trickle down” effect that would reduce current housing-cost burdens?
  No. Adding additional supply of housing at market-rate would have no impact on the cost of housing that would be affordable to VLI and ELI households.
  
  Planning Division staff have been unable to identify any evidence that a “trickle down” effect from new, market-rate housing would benefit VLI and ELI households. (Email from Planning Division on April 29, 2021)
  
  
• Would building more market-rate housing have a “filtering” effect that would reduce long-term housing-cost burdens?
  No. Adding additional supply of housing at market-rate would have no impact on the future cost of housing that would be affordable to VLI and ELI households.
  
  Planning Division staff have been unable to identify any evidence that a “filtering” effect from new, market-rate housing would benefit VLI and ELI households. (Email from Planning Division on April 29, 2021)
  
  
• Would building more market-rate housing provide more choices of dwelling types?
  It depends. Investors and developers will build the type of market-rate housing that they believe will produce the maximum profitability with the least risk. The result may or may not be additional choices across the full spectrum of housing types.
  
  
• Would deregulation of low-density, “single-family” zoning have any harmful impacts?
  Yes! If the deregulation leaves the decision of what gets built, where and at what cost to investors and developers, the redevelopment in lower-cost neighborhoods is likely to increase demolitions and displacement of current residents.
  
  Upzoning without protections against displacement of lower-income households may violate the Federal Fair Housing Act (FHA). Learn more about potential legal issues with the Eugene Planning Division’s proposed upzoning:
  Upzoning and Racial Displacement Legal Issues
  
  
• Would greater degrees of deregulation produce greater reduction in housing-cost burdens?
  No! While greater deregulation allows investors and developers to reduce land costs and/or create larger buildings, no amount of deregulation would enable market-rate housing to be affordable to VLI and ELI housholds.
  
  
• What specific deregulation has the Oregon Legislature dictated?
  Several recent bills require that Eugene upzone residential areas to allow accessory dwelling units, duplexes, triplexes, quadplexes, rowhouses and “cottage clusters.”
  
  The (2019) HB 2001 bill was sold as “gentle density” with so-called “Middle Housing.” While it’s sound land use planning to allow a mixture of different housing types, it’s critical to have appropriate development standards when these more intensive forms of development are allowed as “infill” in already built-out neighborhoods.
  
  Take a tour of the “Mything Middle Housing Gallery”.
  
  
• What zone changes has Eugene Planning Division staff drafted, and how do these changes correspond to the legislative requirements?
  The city planners have drafted code amendments that would result in far more extensive deregulation than required by State requirements. The staff’s recommendation of such extreme deregulation would exacerbate the harmful impacts on low-income renters, including displacements and greater housing cost burdens.

You can help ensure that future code amendments lower rents, not just increase investors’ profits.

Express your support for housing and climate justice by signing a petition to the Eugene City Council. Click here.

OR, take only five minutes to send an email to the City Council with the simple message:

I (we) urge the City Council to ensure that the implementation of “Middle Housing” does not allow or encourage housing development that would displace low-income households because of demolitions or significant increases in monthly rents in their neighborhoods.

TO: MayorAndCC@ci.eugene.or.us

Click for more advice on taking action.