The Building Blocks of Real Estate Development – Planning and Zoning | Tonkon Torp LLP


Our Real Estate Review mini-series continues by examining the challenges developers often face due to local zoning and other land use regulations.

In Oregon, zoning and licensing regulations are mostly set by local city or county governments. Every local state government is required to promulgate and enforce land use regulations that implement the broad vision for Oregon defined by land use planning goals at scale of the State and the Oregon Land Conservation and Development Commission.

Zoning by-laws govern both uses (such as residential, mixed, commercial, industrial, etc.) and development standards (such as lot coverage, maximum height, setbacks, and landscaping). landscaped). In some places, zoning also controls more aesthetic elements of the design through design review and architectural standards, often to help a community establish a cohesive environment that functions much like a trademark. For example, Astoria is unlikely to be confused with Bend in part due to Bend’s commercial design review standards requiring that “the predominant building materials must be characteristic of central Oregon, such as brick, wood, native stone and stained / textured concrete masonry. glass units and / or products. Local governments also enforce statewide building codes, which set minimum requirements for construction, primarily to ensure safety. Local governments can pass additional building regulations, but only if they do not contradict minimum standards adopted by the Oregon Division of Building Codes.

The main exception to local zoning control is for projects that fall under certain special use categories. For example, energy projects above a certain size are permitted through the State Energy Facilities Siting Board. Other government agencies involved in specific projects include the Forestry Department, the Department of Land Conservation and Development, the State Land Department, the Department of Environmental Quality and the Department of fishing and wildlife.

The law requires cities and counties to make final decisions on planning permission applications within 120 to 150 days of the date the application is considered complete, which includes any local remedies. Depending on the type of permit requested, the decision maker may be a single government employee, a third-party hearing officer, an appointed board (such as a planning commission), or an elected governing body. Some requests require a public hearing and the possibility of public comment, others can be decided solely on the basis of the administrative record.

What if a developer or community member disagrees with the local authority’s decision? First, this part must exhaust all appeal procedures provided at the local level. After that, an aggrieved party can appeal to the Land Use Appeal Board (LUBA). Fair warning though – LUBA calls rarely result in a reversal. More often than not, LUBA confirms the local government decision or finds an error in the decision and refers the case back to the local government for further processing. LUBA decisions can be appealed to state appeal courts. Recognizing that time is money in real estate development, LUBA decisions and all other land use case appeals are subject to strict and relatively short deadlines. For example, in most cases, LUBA must render a decision on any appeal within 77 days of receiving the administrative file.

Getting a real estate development from vision to reality requires a balance between planning and permitting and design and construction considerations. Failure to do so can lead to costly delays and even failure of a project. At first, take the time to review local zoning bylaws with a lawyer or land use consultant. This review process can reset expectations and also open up new ideas for improving a project, such as partnering with local government.


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