Coopman v. City of Eugene

6

Argued and submitted April 12, reversed in part and remanded, otherwise

affirmed July 12, 2023

Ted M. COOPMAN,

Paul T. Conte, and Gary Nance,

Petitioners,

v.

CITY OF EUGENE,

Al Johnson, Home Builders Association of Lane County,

Eliza Kashinsky, Joshua Kashinsky, Anne Brown,

Patty Hine, Isaac Judd, Angie R. Marzano, Sigh O’Nara,

Babe O’Sullivan, Bill Randell, Carleen Reilly,

Seth Sadofsky, Kevin Shanley, Heather Sielicki,

Sue Wolling, 1000 Friends of Oregon,

Better Housing Together, and DEVNW,

Respondents,

and

Christopher DEEL,

Respondent below.

Land Use Board of Appeals

2022056; A180682

534 P3d 1105

Petitioners seek review of a final order of the Land Use Board of Appeals

(LUBA) that rejected their challenge to respondent City of Eugene’s adoption of

Ordinance No. 20667 (“the ordinance”). The city adopted the ordinance amend-

ing the Eugene Code and the Eugene-Springfield Metropolitan Area General

Plan (Metro Plan) in response to a directive from the legislature to allow more

“middle housing”—duplexes, triplexes, quadplexes, cottage clusters, and town-

homes—in cities. Petitioners challenged the city’s adoption of the ordinance

before LUBA and LUBA affirmed the city’s decision. Petitioners seek review,

raising three assignments of error. In their first assignment, petitioners contend

that LUBA erred in affirming the city’s determination that the ordinance com-

plied with Goal 11 of the Statewide Land-Use Planning Goals, OAR 660-015-

0000(11), relating to public facilities and services. In their second assignment of

error, petitioners contend that LUBA erred in affirming the city’s construction of

law and the city’s findings that the ordinance did not implicate and therefore did

not violate Goal 15, relating to development on the Willamette River Greenway,

OAR 660-015-005. In their third assignment of error, petitioners contend that

LUBA erred in upholding the ordinance because, according to petitioners, the

ordinance’s terms “dwelling unit size” and “income-qualified middle housing” did

not provide clear and objective standards, in violation of ORS 197.307(4). Held: To

satisfy ORS 197.175(2)(a), cities and counties “shall * * * amend and revise” their

comprehensive plans “in compliance with” the statewide planning goals. Eugene

Code applies similar requirements to amendments to the code and Metro Plan.

Those requirements are stated in the present tense. They do not allow the city to

Cite as 327 Or App 6 (2023) 7

amend the plan and regulations based on an assertion that, at some point in the

future, the city will update its plans to account for development allowed by the

amendments in a way that will comply with the goals. As a result, LUBA erred

when it affirmed the city’s conclusion that it did not have to consider the impact

of the amendments to the Eugene Code and Metro Plan on its provision of public

facilities and services at the time it adopted them. The Court of Appeals rejected

petitioners’ second and third assignments of error and affirm the parts of LUBA’s

opinion challenged by those assignments.

Reversed in part and remanded; otherwise affirmed.

Charles W. Woodward, IV argued the cause and filed the

brief for petitioners.

Lauren A. Sommers argued the cause and filed the brief

for respondent City of Eugene.

Bill Kloos and Law Office of Bill Kloos PC filed the brief

for respondent Home Builders Association of Lane County.

No appearance for respondents Al Johnson, Eliza

Kashinsky, Joshua Kashinsky, Anne Brown, Patty

Hine, Isaac Judd, Angie R. Marzano, Sigh O’Nara, Babe

O’Sullivan, Bill Randell, Carleen Reilly, Seth Sadofsky,

Kevin Shanley, Heather Sielicki, Sue Wolling, 1000 Friends

of Oregon, Better Housing Together, and DEVNW.

Before Shorr, Presiding Judge, and Mooney, Judge, and

Pagán, Judge.

SHORR, P. J.

Reversed in part and remanded; otherwise affirmed.

8 Coopman v. City of Eugene

SHORR, P. J.

Petitioners seek review of a final order of the Land

Use Board of Appeals (LUBA) that rejected their challenge

to respondent City of Eugene’s adoption of Ordinance No.

20667 (“the ordinance”). The city adopted the ordinance in

response to a directive from the legislature to allow more

“middle housing”—duplexes, triplexes, quadplexes, cottage

clusters, and townhomes—in cities. Specifically, the leg-

islature enacted a middle housing statute, the majority of

which is codified as ORS 197.758,1 to require cities to permit

those housing options in areas previously zoned exclusively

for single-family dwellings. The legislature set deadlines

by which the cities had to update their local ordinances or

amend their comprehensive plans or, alternatively, be forced

to apply a model ordinance until they adopted their own. Or

Laws 2019, ch 639, § 3. The city timely adopted its own ordi-

nance, Ordinance No. 20667, that amended the Eugene Code

and the Eugene-Springfield Metropolitan Area General

Plan (Metro Plan).

Petitioners challenged the city’s adoption of the

ordinance before LUBA and LUBA affirmed the city’s deci-

sion. Petitioners now seek review, raising three assignments

of error. In their first assignment, petitioners contend that

LUBA erred in affirming the city’s determination that its

comprehensive plan and code amendments complied with

Goal 11 of the Statewide Land-Use Planning Goals, OAR

660-015-0000(11). As we explain below, we agree with peti-

tioners that LUBA erred in that regard and that the city

did not adequately address Goal 11 in its findings. We reject

petitioners’ second assignment of error, which contends

that LUBA erred in affirming the city’s construction of law

and the city’s findings that the ordinance did not implicate

Goal 15 (relating to development on the Willamette River

Greenway), OAR 660-015-0005, and therefore did not violate

that goal. We summarily reject petitioners’ third assignment

of error, which contends that LUBA erred in upholding the

ordinance because, according to petitioners, the ordinance’s

1

The legislature recently passed House Bill (HB) 3395 (2023), which

amended ORS 197.758. Those amendments do not affect our analysis, however,

and we cite to the current version of the statute throughout this opinion.

Cite as 327 Or App 6 (2023) 9

terms “dwelling unit size” and “income-qualified middle

housing” did not provide clear and objective standards, in

violation of ORS 197.307(4). As a result, we affirm LUBA’s

decision in part, reverse in part, and remand for further

proceedings.

The “facts” before LUBA are simply a recitation of

the enactment of the laws relating to middle housing that

preceded this dispute. As a result, the parties do not con-

test them. We use the same background facts provided by

LUBA:

“This appeal concerns the city’s adoption of [the ordi-

nance amending the Eugene Code and Metro Plan] imple-

menting House Bill 2001 (2019), a portion of which is cod-

ified at ORS 197.758 and which we refer to as the Middle

Housing Statute. Or Laws 2019, ch 639, § 2.

“The Middle Housing Statute requires large cities,

including Eugene, to allow duplexes, triplexes, quadplexes,

townhouses, and cottage clusters on properties zoned for

residential use that allow for the development of detached

single-family dwellings. The Middle Housing Statute

required the city to amend its comprehensive plan [or]

adopt land use regulations not later than June 30, 2022.

Or Laws 2019, ch 639, § 3(1)(b). Had the city failed to

implement the Middle Housing Statute within that time,

then the city would have been required to directly apply

a model ordinance adopted by the Land Conservation and

Development Commission (LCDC). Id. § 3(2), (3). LCDC

adopted administrative rules implementing the Middle

Housing Statute at OAR chapter 660, division 46. LCDC

also adopted a model code for large cities, which is Exhibit

B to OAR 660-046-0010.

“The Middle Housing Statute does not prohibit local

governments from permitting single-family dwellings in

areas zoned to allow for single-family dwellings or from

allowing middle housing in areas not required under the

statute. ORS 197.758(6). The [ordinance] do[es] not require

or trigger the development of middle housing. The choice to

construct middle housing is left to the developer or prop-

erty owner.

“Rather than adopting LCDC’s model code, the city

adopted the [ordinance] to allow for the development of

middle housing types on residentially zoned properties

10 Coopman v. City of Eugene

where the development of detached single-family dwellings

is allowed. In some respects, the [ordinance] exceed[s] the

minimum requirements of ORS 197.758 and OAR chapter

660, division 46, based on the city’s policy choice to encour-

age and, in some cases, incentivize the development of mid-

dle housing.”

(Footnote omitted.) In its opinion, LUBA further referred

to the factual findings that the city made when enacting

the ordinance. We quote those findings at length within our

discussion of petitioners’ assignments of error, because peti-

tioners’ legal arguments are partially driven by its conten-

tion that LUBA erred in affirming the city’s findings.

We turn to the applicable standard of review before

addressing petitioners’ assignments of error. Petitioners

challenge LUBA’s order as “unlawful in substance” under

ORS 197.850(9)(a). Petitioners’ challenge therefore asks us

to review whether LUBA correctly applied the law. Within

that challenge, petitioners contend both that LUBA misin-

terpreted the law and that LUBA erred in affirming the

city’s legislative findings of fact in support of the ordinance.

We review LUBA’s interpretation of the law for legal error.

See Mountain West Investment Corp. v. City of Silverton,

175 Or App 556, 559, 30 P3d 420 (2001) (LUBA decision is

“unlawful in substance * * * if it represent[s] a mistaken

interpretation of the applicable law”). As to the facts, our

review of LUBA’s decision affirming the city’s factual find-

ings is different from our ordinary factual standard of

review in other agency cases:

“We review LUBA’s determination of the substantiality

of the evidence for a local government finding on whether

the LUBA opinion is unlawful in substance under ORS

197.850(9)(a). Our task is not to assess whether the local

government erred in making a finding, but to determine

whether LUBA properly exercised its review authority.

Thus, we do not substitute our judgment for LUBA’s on

whether a reasonable person could make a finding of fact

based upon the entire local government record. Instead,

we evaluate whether LUBA properly stated and applied its

own standard of review. If LUBA does not err in the articu-

lation of its substantial evidence standard of review under

ORS 197.835(9)(a)(C), we would reverse LUBA’s decision

Cite as 327 Or App 6 (2023) 11

only when there is no evidence to support the finding or

if the evidence in the case is so at odds with LUBA’s eval-

uation that a reviewing court could infer that LUBA had

misunderstood or misapplied its scope of review.”

Citizens for Responsibility v. Lane County, 218 Or App 339,

345, 180 P3d 35 (2008) (internal quotation marks omit-

ted). In other words, we review “LUBA’s application of the

substantial evidence rule for legal correctness and do[ ]

not review the evidence independently for substantiality.”

Reinert v. Clackamas County, 286 Or App 431, 446, 398 P3d

989 (2017).

We start with the law that informs this dispute.

Under existing statewide planning laws, local governments

must adopt comprehensive plans that are consistent with

the Statewide Land Use Planning Goals. ORS 197.175(2)(a)

(“Pursuant to ORS chapters 195, 196 and 197, each city

and county in this state shall * * * [p]repare, adopt, amend

and revise comprehensive plans in compliance with goals

approved by [LCDC].”). Comprehensive plans must be “pre-

pared to assure that all public actions are consistent and

coordinated with the policies expressed through the compre-

hensive plans.” ORS 197.010(1)(d); see also ORS 197.175(2)(b),

(d) (requiring each city and county to “[e]nact land use reg-

ulations to implement their comprehensive plans,” and, “[i]f

[the city or county’s] comprehensive plan and land use regu-

lations have been acknowledged by [LCDC], make land use

decisions and limited land use decisions in compliance with

the acknowledged plan and land use regulations”).

To implement that framework, Eugene has its own

laws relating to planning. Eugene Code (EC) 9.8065(1) pro-

vides that the city may adopt an amendment to its land use

code that “[i]s consistent with applicable statewide plan-

ning goals adopted by [LCDC].” EC 9.8065(2) provides that

amendments must also be “consistent with applicable pro-

visions of the [city’s] comprehensive plan and applicable

adopted refinement plans.” EC 9.7735 further provides that

the city council apply certain criteria in approving or deny-

ing a Metro Plan amendment application, including that

“[t]he proposed amendment is consistent with the relevant

Statewide Planning Goals.” EC 9.7735(1).

12 Coopman v. City of Eugene

We turn to the relevant statewide planning goals.

Goal 2 provides in relevant part that “[c]ity * * * plans and

actions related to land use shall be consistent with the com-

prehensive plans of cities” adopted under law. OAR 660-015-

0000(2). Goal 11 provides that local governments are “[t]o

plan and develop a timely, orderly and efficient arrangement

of public facilities and services to serve as a framework for

urban and rural development.” OAR 660-015-0000(11). The

goal requires cities like Eugene to “develop and adopt a pub-

lic facility plan for areas within an urban growth bound-

ary.” Id. The goal defines key terms and phrases such as

“a timely, orderly, and efficient arrangement” and a “public

facility plan”:

“A Timely, Orderly and Efficient Arrangement—

refers to a system or plan that coordinates the type, loca-

tions and delivery of public facilities and services in a man-

ner that best supports the existing and proposed land uses.

“* * * * *

“Public Facilities Plan—A public facility plan is a

support document or documents to a comprehensive plan.

The facility plan describes the water, sewer and transporta-

tion facilities which are to support the land uses designated

in the appropriate acknowledged comprehensive plan * * *.”

Id. (boldface in original). Goal 11 also provides guidelines,

some of which apply to urban areas like Eugene. Planning

Guideline 3 provides: “Public facilities and services in urban

areas should be provided at levels necessary and suitable for

urban uses.” Id. Further, Implementation Guideline 3 pro-

vides: “The level of key facilities that can be provided should

be considered as a principal factor in planning for various

densities and types of urban and rural land uses.” Id.

Thus, under Oregon’s statutory land-use framework

and Eugene’s code, the amendments to the Metro Plan had

to be consistent with Goal 11, and the amendments to the

Eugene Code, in turn, had to be consistent with the Metro

Plan as well as Goal 11.

As noted, the legislature enacted the middle hous-

ing statute in 2019. Or Laws 2019, ch 639. That law requires

that Eugene, as a city “with a population of 25,000 [people]

or more,”

Cite as 327 Or App 6 (2023) 13

“allow the development of

“(a) All middle housing types in areas zoned for res-

idential use that allow for the development of detached

single-family dwellings; and

“(b) A duplex on each lot or parcel zoned for residen-

tial use that allows for the development of detached single-

family dwellings.”

ORS 197.758(2); Or Laws 2019, ch 639, § 2(2). The law pro-

vides that, “[n]otwithstanding ORS 197.646,” which provides

the ordinary procedures for amendments to comprehensive

plans to comply with new land use statutes or rules after

plans are acknowledged by LCDC, a city like Eugene “shall

adopt land use regulations or amend its comprehensive plan”

no later than June 30, 2022, or, if it fails to do so, “shall

directly apply” a model ordinance developed by LCDC.2 Or

Laws 2019, ch 639, § 3(1)(b), (3). Cities are permitted to reg-

ulate the siting and design of middle housing “provided that

the regulations do not, individually or cumulatively, dis-

courage * * * development * * * through unreasonable costs

or delay. Local governments may regulate middle housing to

comply with protective measures adopted pursuant to state-

wide land use planning goals.” ORS 197.758(5).

LCDC adopted regulations following the enactment

of the middle housing statute. As relevant to this dispute,

LCDC adopted OAR 660-046-0010, which elaborates on

the legislative directive that “[l]ocal governments may reg-

ulate middle housing to comply with protective measures

adopted pursuant to statewide land use planning goals.”

ORS 197.758(5). OAR 660-046-0010(3) provides, in part:

“A Medium or Large City may regulate Middle Housing

to comply with protective measures (including plans, pol-

icies, and regulations) adopted and acknowledged pursu-

ant to statewide land use planning goals. Where Medium

and Large Cities have adopted, or shall adopt, regulations

implementing the following statewide planning goals,

the following provisions provide direction as to how those

2

As well as enacting the model code required by the statute, LCDC has

enacted a variety of rules that guide cities and other covered local govern-

ments in implementing the middle housing statute, some of which we discuss

below. See OAR 660-046-000 - 660-046-0370 (providing regulations guiding

implementation).

14 Coopman v. City of Eugene

regulations shall be implemented in relation to Middle

Housing, as required by this rule.

“* * * * *

“(e) Goal 11: Public Facilities and Services—Pursuant

to OAR 660-011-0020(2), a public facility plan must iden-

tify significant public facility projects which are to support

the land uses designated in the acknowledged comprehen-

sive plan. This includes public facility projects to support

the development of Middle Housing in areas zoned for res-

idential use that allow for the development of detached

single-family dwellings. Following adoption of Middle

Housing allowances by a Large City, the Large City shall

work to ensure that infrastructure serving undeveloped or

underdeveloped areas, as defined in OAR 660-046-0320(8),

where Middle Housing is allowed is appropriately designed

and sized to serve Middle Housing.”

The legislature also permitted a city to seek an

extension of time to adopt regulations or amend its com-

prehensive plan for an area where it has identified cer-

tain infrastructure and transportation services “that are

either significantly deficient or are expected to be signifi-

cantly deficient before December 31, 2023,” and where it has

identified a plan that will remedy the deficiency. Or Laws

2019, ch 639, § 4(1), (2). Accordingly, the Department of

Land Conservation and Development (DLCD) implemented

a program for those extensions. See OAR 660-046-0300 -

660-046-0370. It is undisputed that the City of Eugene,

which is considered a large city under the middle housing

regulations,3 did not seek an extension.

The City of Eugene adopted its own ordinance,

Ordinance No. 20667, that amended portions of the Eugene

Code and portions of the Metro Plan. The city went further

in its ordinance than the requirements of the middle housing

statute by not just allowing middle housing but encouraging

and even incentivizing the development of middle housing in

the city.

As explained above, in the middle housing stat-

ute, the legislature required certain cities to allow middle

3

OAR 660-046-0020(8) defines a large city to include one with an “estimated

population of 25,000 or more.”

Cite as 327 Or App 6 (2023) 15

housing in certain areas by amending their comprehensive

plans and land use regulations to that effect. Or Laws 2019,

ch 639. That legislative act necessarily displaces some of the

ordinary statewide land-use planning framework. See, e.g.,

id. at § 3(1) (cities must amend their plans and regulations

“[n]otwithstanding ORS 197.646”). What is less clear is how

much of the framework it displaces. Here, as we will explain,

the question is whether, when it enacted the ordinance, the

city had to ensure that the Eugene Code and Metro Plan

amendments allowing middle housing were consistent with

Goal 11 by considering whether, and to what extent, the

amendments were compatible with its existing public facili-

ties and services. The city had amended its public facilities

and services plan in 2017 (approximately five years before

the adoption of the ordinance) and was already looking at

an upcoming update to that plan following a grant of money

from DLCD.

Recognizing that recent history and upcoming plan-

ning process, the city made certain findings when adopting

the ordinance:

“The Middle Housing Code Amendments[4] do not make

changes to the City’s provision of public facilities and ser-

vices or to the currently adopted Eugene/Springfield Public

Facilities and Services Plan (PFSP). Consistent with the

PFSP, the City will continue to plan and develop public

facilities to support the land uses designated in the City’s

acknowledged comprehensive plan, including public facility

projects that support the development of middle housing.

Therefore, the amendments are consistent with Statewide

Planning Goal 11.

“The City of Eugene updated the PFSP during the adop-

tion of Eugene Urban Growth Boundary in 2017 to ensure

that all residential lands could be served. More recently, the

City of Eugene and City of Springfield received a grant from

[DLCD] on October 6, 2021 to update the PFSP, including

4

We understand the City and LUBA’s references to the “Middle Housing

Code Amendments” or sometimes abbreviated by LUBA as “MHA” to refer to the

entire ordinance, which both amended the Eugene Code’s land use provisions and

amended the Metro Plan to account for the legislature’s requirement to allow

middle housing. Throughout this opinion, we use “the ordinance” to refer to the

entirety of Ordinance No. 20667 and, whenever possible, adjust quoted material

from the LUBA record to be consistent with our use of that term.

16 Coopman v. City of Eugene

updates specifically focused on supporting housing devel-

opment. Consistent with [OAR 660-046-0010(3)(e)], follow-

ing adoption of the Middle Housing Code Amendments, the

City will work to ensure that infrastructure serving areas

where middle housing is allowed, including any undevel-

oped or underdeveloped areas as defined in OAR 660-046-

0320(8), is appropriately designed and sized to serve the

land uses allowed by the City’s comprehensive plan and

land use regulations, including middle housing uses.”

With that legal and factual background, we turn to

petitioners’ argument. Before LUBA, petitioners contended

that, contrary to the city’s statement that the amendments

“do not make changes to the City’s provision of public facili-

ties and services,” the amendments would result in changes

in the city’s provision of public facilities and services because

they allowed an increase in density in residential zones

throughout the city. Petitioners asserted that the city’s find-

ings “represent, at best, a non-binding promise that the

City will eventually address Goal 11 compliance when the

PFSP is amended.” Petitioners contend that, consequently,

the findings did not demonstrate that the amendments cur-

rently complied with the statewide land use planning goals.

Petitioners relied on Friends of Yamhill County v. Yamhill

County, 47 Or LUBA 160 (2004), for the proposition that

compliance issues with statewide planning goals raised by

post-acknowledgment plan amendments must be addressed

and resolved at the time the plan amendment is adopted.

Petitioners maintained that the city could have brought the

amendments into current compliance with Goal 11 in any

of several ways: It could have updated its public facilities

and services plan; “enacted the DLCD Model Code (which

includes a restriction on development if there is insufficient

infrastructure)”; or simply undertaken a study “to predict

the increased impacts on the Goal 11 facilities.” (Footnote

omitted.)

LUBA rejected that argument. First, it stated that

the 2017 public service facilities plan contemplated the

impacts of increased development through in-fill and rede-

velopment. It then noted that it was “unclear whether and to

what extent the [ordinance] will result in increased density.”

Regardless, it concluded,

Cite as 327 Or App 6 (2023) 17

“even if the city had determined that the [ordinance] will

result in increased density that exceeds existing infrastruc-

ture or planned infrastructure improvements, Goal 11 does

not require that the city amend the PFSP to evaluate the

adequacy of its infrastructure prior to or concurrently with

adopting the [ordinance].”

We understand LUBA to have concluded that, although Goal

11 applied to the city’s amendments to the Metro Plan and

the Eugene Code, Goal 11 does not mandate that the city

consider whether the amendments would allow development

without compliance with Goal 11 or amend its public facili-

ties and services plan contemporaneously with adopting the

amendments. LUBA later (when analyzing the ordinance’s

compliance with a local planning policy with similar text)

noted that the dictionary definition of the term “coordinate”

includes “to bring into a common action, movement, or con-

dition,” which, LUBA said, did not require contemporaneous

action.

On review, petitioners renew the basic argument

that they made before LUBA, contending that, when it

adopted the ordinance, the city was required, and failed,

to demonstrate that the plan and regulations as amended

complied with Goal 11 and, consequently, with the exist-

ing public facilities and services plan. They note that the

ordinance post-dated the existing 2017 public facilities and

services plan and so, necessarily, the plan did not contem-

plate the type of infill and increased density that will result

from the ordinance. Petitioners also take issue with LUBA’s

characterization of their argument as being that the city

had to amend the public facilities and services plan when

it adopted the ordinance, pointing out that they argued

that the city only had to consider and explain how the ordi-

nance was consistent with Goal 11, not that it necessarily

had to amend the plan. Noting LUBA’s focus on the term

“coordinate” from Goal 11, they also contend that, to accom-

plish Goal 11’s mandate that the city “coordinates the type,

locations and delivery of public facilities and services in a

manner that best supports the existing and proposed land

uses,” OAR 660-015-0000(11), when the city adopts provi-

sions allowing new land uses, the city has to consider the

18 Coopman v. City of Eugene

relationship between those new uses and its existing plan

for public facilities and services.

To satisfy ORS 197.175(2)(a), cities and counties

“shall * * * amend and revise” their comprehensive plans “in

compliance with” the statewide planning goals. Further, the

city’s own code provides that the council shall apply certain

criteria in approving or denying an application to amend

the Metro Plan, including that “[t]he proposed amendment

is consistent with the relevant Statewide Planning Goals.”

EC 9.7735(1). And, the city may amend its land use code

when the amendment “[i]s consistent with applicable state-

wide planning goals” and “with applicable provisions of

the comprehensive plan and applicable adopted refinement

plans.” EC 9.8065(1), (2); see also ORS 197.175(2)(b) (cities

and counties must enact land use regulations “to imple-

ment their comprehensive plans”). Those requirements are

stated in the present tense. They do not allow the city to

amend the plan and regulations based on an assertion, like

the one the city made here regarding Goal 11, that, at some

point in the future, the city will update its plans to account

for development allowed by the amendments in a way that

will comply with the goals. See Stop the Dump Coalition v.

Yamhill County, 364 Or 432, 449, 435 P3d 698 (2019) (“state

and local land use laws must be consistent with the state-

wide land use goals”); see also Friends of Yamhill County, 47

Or LUBA at 169 (“As a general principle, goal compliance

issues raised by a plan amendment must be addressed and

resolved at the time the plan amendment is adopted.”); 1000

Friends of Oregon v. Washington County, 17 Or LUBA 671,

683 (1989) (in adopting a post-acknowledgment plan amend-

ment, to the extent the plan amendment implicates state-

wide planning goal standards, findings addressing those

goal standards are required).

In its separately filed brief, respondent Home

Builders Association of Lane County argues that, in enact-

ing the middle housing statute, the legislature intended

to override the ordinary land-use framework altogether,

including the requirements of ORS 197.175 and provisions

like those in the Eugene Code, and exempt cities’ middle

housing amendments from application of the goals. As noted

Cite as 327 Or App 6 (2023) 19

above, the legislature did exempt the amendments from the

ordinary post-acknowledgment plan amendment statute,

ORS 197.646. However, neither the middle housing statute

nor LCDC’s rules implementing it reflect the intention to

override application of the goals as required by ORS 197.175.

Further, the middle housing law specifically exempts local

government’s amendments to their comprehensive plans and

land use regulations from LCDC’s Transportation Planning

Rule, which implements Goal 12. See Or Laws 2019, ch 639,

§ 3(5) (stating that, when a local government legislatively

amends its comprehensive plan or land use regulations to

allow middle housing, it “is not required to consider whether

the amendments significantly affect an existing or planned

transportation facility”). If the legislature had intended this

type of amendment to be exempt from all of the goals, that

specific exemption would be meaningless.

The legislature also authorized local governments

to seek extensions to update their local land use regula-

tions or amend their comprehensive plans for specific areas

“where the local government has identified water, sewer,

storm drainage or transportation services that” are “signifi-

cantly deficient or are expected to be significantly deficient

before December 31, 2023[.]” Or Laws 2019, ch 639, § 4(1), (2).

As noted, DLCD also implemented a program for seeking

those extensions. OAR 660-046-0300 - 660-046-0370. That

decision—to allow local governments additional time to

update their land use regulations and comprehensive plans

to consider their infrastructure needs in light of the new

middle housing law—supports an inference that the legis-

lature intended to continue to require local governments to

comply with statewide planning goals and rules related to

public facilities and services.

Further, although the parties debate the meaning

of OAR 660-046-0010(3), we conclude that it supports our

understanding that adoption of the amendments mandated

by the middle housing statute must follow regularly applica-

ble procedures, albeit on a dramatically expedited timeline.

That provision states, in part, that

“a public facility plan must identify significant public facil-

ity projects which are to support the land uses designated

20 Coopman v. City of Eugene

in the acknowledged comprehensive plan. This includes

public facility projects to support the development of Middle

Housing in areas zoned for residential use that allow for the

development of detached single-family dwellings. Following

adoption of Middle Housing allowances by a Large City,

the Large City shall work to ensure that infrastructure

serving undeveloped or underdeveloped areas * * * where

Middle Housing is allowed is appropriately designed and

sized to serve Middle Housing.”

OAR 660-046-0010(3)(e) (emphasis added). As we under-

stand it, the italicized sentence demonstrates LCDC’s expec-

tation that, when cities adopt the amendments required by

the statute, they will engage in some version of the ordi-

narily required planning for public facilities and services.

Although updating the public facilities and services plan

likely was not feasible on the schedule that the legislature

imposed, as petitioners pointed out before LUBA, there were

other ways to achieve compliance with Goal 11, like adopt-

ing provisions similar to those in the model code that limit

middle housing on lots that lack sufficient infrastructure to

support it, at least until the public facilities and services

plan update was complete.

In sum, LUBA erred when it affirmed the city’s con-

clusion that it did not have to consider the impact of the

amendments to the Eugene Code and Metro Plan on its pro-

vision of public facilities and services at the time it adopted

them.5

We turn to petitioners’ second assignment of error,

which requires a different analysis. As we understand it,

petitioners contend that LUBA erred in affirming the city’s

construction of the applicable law and in applying its stan-

dard of review when it affirmed the city’s findings that the

ordinance was not out of compliance with Goal 15 (relating

to development on the Willamette River Greenway) because

it did not implicate that goal. As we discuss below, the city

essentially concluded that the ordinance did not make any

changes to either the city’s existing permitting program

5

Because we conclude that LUBA erred in applying state law and regula-

tions to the city’s decision to amend the Metro Plan and Eugene Code via the

ordinance, we do not address petitioners’ separate argument that LUBA erred

when applying Metro Plan Policy A.12 to the city’s decision.

Cite as 327 Or App 6 (2023) 21

governing development in the Willamette River Greenway

or provide for any specific development in the greenway. As

a result, the city concluded that the ordinance did not impli-

cate Goal 15. LUBA agreed with the city’s construction of

the controlling law. So do we.

The purpose of Goal 15 is “[t]o protect, conserve,

enhance and maintain the natural, scenic, historical, agri-

cultural, economic and recreational qualities of lands along

the Willamette River as the Willamette River Greenway.”

OAR 660-015-0005. Subparagraph C(3)(j) provides:

“Development away from river—Developments shall

be directed away from the river to the greatest possi-

ble degree; provided, however, lands committed to urban

uses within the Greenway shall be permitted to continue

as urban uses, including port, industrial, commercial and

residential uses, uses pertaining to navigational require-

ments, water and land access needs and related facilities[.]”

OAR 660-015-0005(C)(3)(j). In addition, paragraph (A)(1)

provides:

“The qualities of the Willamette River Greenway shall

be protected, conserved, enhanced and maintained con-

sistent with the lawful uses present on December 6, 1975.

Intensification of uses, changes in use or developments may

be permitted after this date only when they are consis-

tent with the Willamette Greenway Statute, this goal, the

interim goals in ORS 215.515(1) and the statewide plan-

ning goals[.]”

OAR 660-015-0005(A)(1) (emphasis added).

As before, many of the background “facts” quoted in

the LUBA opinion are largely a recitation of earlier enacted

laws and regulations that provide context for the current

dispute. As LUBA observed, the city had an existing regula-

tory framework for possible development in the Willamette

River Greenway:

“Pursuant to Goal 15, the city adopted a Greenway

overlay and criteria for development within the Greenway.

EC 9.8800 - 9.8825. Greenway permits are required for

‘intensification of use, changes in uses, or developments.’

EC 9.8805. The permit standards are designed to direct

22 Coopman v. City of Eugene

development away from the river, maintain access to the

river, and preserve habitat and vegetation near the river.”

In adopting the ordinance, the city expressly found that Goal

15 did not apply, because the ordinance had no effect on the

city’s existing regulations on development in the Willamette

River Greenway:

“The [ordinance] do[es] not contain any substantive changes

to the City’s Willamette River Greenway regulations; there-

fore, Statewide Planning Goal 15 does not apply. The only

change to the Willamette Greenway regulations is a new

citation to a renumbered code section.”

Before LUBA, petitioners made the following argu-

ments, which were then rejected by LUBA:

“First, [petitioners Conte and Nance] argue that the city’s

Goal 15 findings are inadequate because they do not

address whether the [ordinance] will result in an intensi-

fication of uses within and that is incompatible with the

Greenway. Second, [they] argue that the [ordinance] fail[s]

to comply with Goal 15 because [it] allow[s] a significant

intensification of housing development in the Greenway

without required review of the potential impacts. * * *

“The city responds that [petitioners Conte and Nance]

misapprehend the requirements of Goal 15. We agree. Goal

15 requires the city to adopt standards to review proposed

development activity within the Greenway, which the city

has done and which are unaffected by the [ordinance].

Goal 15, Implementation Measure 3, sets out the require-

ments for Greenway compatibility review, which applies

to applications for specific development. A Greenway per-

mit is required for intensification, change in use, or devel-

opment of a specific property. Goal 15 does not require

Greenway review for comprehensive plan and code changes

that may allow increased residential density with the

Greenway. Instead, Goal 15 is implemented through the

city’s Greenway permit program. We agree with the city

that it was not required to comply with Goal 15 in adopting

the [ordinance] because the [ordinance] do[es] not amend

the city’s Greenway permit program or allow any specific

development within the Greenway. Based on that conclu-

sion, [petitioners Conte’s and Nance’s] argument that the

[ordinance] fail[s] to comply with Goal 15 provides no basis

for remand. We conclude that the city’s Goal 15 findings

Cite as 327 Or App 6 (2023) 23

are adequate to establish that the city considered the issue

of the applicability of Goal 15.”

(Footnote omitted.) Before us, petitioners contend that LUBA

erred because it avoided petitioners’ argument that the ordi-

nance effectively allowed middle housing in zones subject

to the Willamette River Greenway and Goal 15. It contends

that the city also avoided consideration of the fact that the

ordinance requires intensification of use in the greenway.

But LUBA did not avoid that argument. It concluded that

Goal 15 did not require greenway review “for comprehensive

plan and code changes that may allow increased residen-

tial development within the Greenway.” The ordinance did

not make any changes to the greenway permitting program,

and the city will have to apply that program if there is a

request for development in the greenway, applying the exist-

ing permitting standards.

For similar reasons, we reject without significant

discussion petitioners’ argument that the ordinance does

not apply clear and objective standards to housing develop-

ment in the Willamette River Greenway, in violation of OAR

660-046-0010(3)(f) and ORS 197.307(4). As LUBA noted, the

ordinance did not adopt or amend any standards for devel-

opment in the greenway. That development will be judged by

the existing standards in the greenway permitting program

and not by reference to the ordinance. We reject petitioners’

second assignment of error in full.

Finally, we reject petitioners’ third assignment of

error, which contends that LUBA also erred in upholding

the ordinance because certain text in the ordinance, which

defines terms such as “dwelling unit size” and “income-

qualified middle housing,” does not provide clear and objec-

tive standards, in violation of ORS 197.307(4). Following our

review of the ordinance, we agree with LUBA that the defi-

nition of those terms in the ordinance is clear and objective.

In sum, as to petitioners’ first assignment of error,

we reverse LUBA’s conclusion that the city did not have to

consider updates to its public facilities and services plan

when amending its code and Metro Plan to allow for middle

housing. We therefore remand to LUBA for further proceed-

ings. We reject petitioners’ second and third assignments of

24 Coopman v. City of Eugene

error and affirm the parts of LUBA’s opinion challenged by

those assignments.

Reversed in part and remanded; otherwise affirmed.