The only “land use law” that Oregon’s trail blazers worried about was patenting land claims. Today, of course, the state takes no small measure of pride in its system of comprehensive land use planning. This system requires any prudent prospective buyer or lessee to identify the permits that he or she will need to build or remodel and the likely time and expense of getting them.

At a basic level, this evaluation requires some understanding of two basic types of permits, “building permits” (i.e., those required under the state building code) and “planning permits” (i.e., those required under the city or county zoning or development code). The substance of these codes and the procedures for obtaining permits under them differ. Indeed, due to increasingly pervasive regulations, relatively simple actions, such as adding on a deck or partitioning the back half of a lot, can lead to complex permit processes.

Building Permits: Ensuring Structural Safety

As city populations swelled in the U.S. during the late 1800’s, structures were built taller and closer together. Unregulated, this development pattern proved susceptible to catastrophe, such as the legendary Chicago fire in 1871. To address this problem Portland followed the lead of cities around the nation by adopting its first building code in 1904.

The Uniform Building Code is now a compilation of specialty codes that relate to various building types (e.g., one and two family dwellings) and building processes (e.g., fire suppression, plumbing, and electrical). In Oregon, the state has adopted a set of specialty codes that are applied by all municipalities. Generally, a building permit is required in order to undertake any structural improvement, even to build a fence. However, the building permit process remains relatively simple.

In order to ensure uniform application from city to city, building code standards tend to be technical in nature and building permit decisions tend to require little discretion. Thus, building permit applications are generally decided by expert staff (i.e., the building official) rather than elected officials. Furthermore, these decisions are generally not subject to a public process in which neighbors are notified and invited to comment.

Planning Permits: Protecting Neighbors . . . and Farmland

Zoning: Protecting Home Values. While early building codes addressed issues of public safety, owners remained concerned that nearby noxious uses, particularly heavy industry, could reduce the value of their property. Deed restrictions (“CC&R’s”) had a limited ability to mitigate this effect. They could assure home buyers that they would not one day wake up next to a gas station, but could not prevent construction of a dog food factory in the next block. Cities, thus, undertook broader regulation of land use. Portland adopted its first zoning map and code in 1924.

Early zoning maps placed all land within the given city into one of few zones, e.g., a “single-family residential zone” in which commercial and industrial uses were prohibited. The accompanying zoning codes adopted, for each zone, some rudimentary standards, e.g. delineating “conditional uses” and minimum building setbacks from adjacent lot lines. In order to implement these standards, zoning codes also instituted new permit requirements (e.g., conditional use and variance).

Unlike the building code, zoning codes expressed public policy choices regarding how it should grow and develop. Thus, compared to building permits, conditional use and variance permit decisions tended to be more discretionary in nature. This led cities to (1) give neighbors notice and an opportunity to comment on applications and (2) give policy-makers (e.g., planning commissions) jurisdiction over controversial proposals.

Comprehensive Land Use Planning: Emphasis Shifts to Preserving Farmland. While the building code has followed a relatively orderly evolution, two events in 1973 led to a significant increase in the complexity of planning permit processes in this state. First, the legislature instituted a statewide land use planning system. The main purpose of this system is to restrict urban-intensity development to land situated within a designated urban growth boundary (UGB).

As implemented by the state Land Conservation and Development Commission and Portland’s regional government (“Metro”), the result is a complex web of detailed development regulations that every city and county must apply. Ironically, many of these regulations directly contradict those that used to protect neighborhoods. For example:

Rather than use zones specifically to segregate different types of land use, most communities now feature zones that require uses to be mixed (e.g., commercial and residential).

In Portland area cities old minimum lot size requirements (typically 10,000 sq.ft.) have been cut roughly in half. Also, land divisions must now achieve a minimum density of 80%. Thus, new lots are rarely more than 6,250 sq.ft. (5,000 sq.ft./.8).

The second important event of 1973 was a court ruling that state law creates certain procedural safeguards for those persons most likely to be affected by zoning decisions that apply to a particular property. Specifically, the court required municipalities to provide neighbors notice and an opportunity to be heard regarding any proposal to rezone a particular piece of land. In time, the state legislature expanded the reach of these procedural safeguards to include any “discretionary approval of a proposed development of land.

As the reach of land use regulations has grown over the past three decades, so has the number of required permits. (The Portland Zoning Code now features 27 different base zones, 35 overlay zones and “plan districts,” and 9 different types of permit.) Indeed, most municipalities in Oregon require a planning permit for any proposed structural alteration other than construction of and addition to a single-family detached dwelling.

Although the state’s land use planning laws includes many mandates, development codes differ from city to city. A use that requires a conditional use permit in one city need not necessarily require such a permit in the next city.

Given the complexity of the system, the state legislature placed some mandates local permit processes. Any person, with the consent of the property owner, can apply for a planning permit. Furthermore, the city or county must:

detail for the applicant specifically what information is needed to make the application complete; and give the applicant a final decision on his or her proposal within 120 days (in urban areas) or 150 days (in rural areas) the application.

Subdivision Regulation. Regulation of subdivisions (creation of more than three lots) and partitions (creation of three or fewer lots) arose separately from zoning. Initially, it was a way to standardize title conveyance and recordation. In Oregon, until relatively recently, a property owner could divide his or her property without obtaining government approval. As comprehensive land use planning took hold, however, subdivisions and partitions were treated similarly to permits. Thus, most cities and counties subject any proposed land division or property line adjustment to public notice and comment.

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This educational series is created to allow Realtors to obtain continuing education. The articles are intended for general informational purposes and are not to be construed as legal advice or legal opinion on any specific facts or circumstances. You are advised to consult with an attorney concerning any questions about your rights or responsibilities in any specific situation.