Plan Ahead, New Land Use Rules Will Affect Development
By Mark D. Shipman
Saalfeld Griggs PC
Two recent changes have imposed new challenges on our ability to divide and develop land. The first change was implemented by the Land Conservation and Development Commission (LCDC) and affects rural residential land; the second change was imposed through Ballot Measure 24-34 and affects both rural and urban land. While both changes will affect the future ability to divide and develop land, proper planning now can save time and money later.
NEW RURAL RESIDENTIAL LAND RULES
The purpose of the new rules is to clarify how Goal 14 (Urbanization) applies to rural lands in acknowledged exception areas planned for rural residential uses. However, the new rule will restrict partitions and subdivisions and could seriously limit existing partition rights, depending on the local government’s current minimum lot size.
The new rule doesn’t apply to all lands. It only applies to those lands outside an urban growth boundary that are planned and zoned primarily for residential uses. It also does not apply to lands within acknowledged unincorporated community boundaries (e.g., Mehama, Brooks-Hopmere).
The effective date of the new rules will take place after September 29, 2000. Applications for subdivisions or partitions filed with a local government prior to the effective date of the rule should not be affected.
The new rule requires that the minimum lot size for any new lot or parcel in a rural residential zone shall be 2 acres in size. However, if a local government has a minimum lot size in their rural residential zones that is larger than 2 acres, then any new lot or parcel created shall be equal to or exceed that minimum lot size already in effect.
The new rule does provide some flexibility to local governments to amend the minimum lot size requirement for an “area” or even a specific parcel. However, the requirements are extensive, some of which are as follows:
- A comprehensive plan amendment, plus the “area,” must have at least 50 acres and have definitive natural or cultural boundaries not just parcel lines;
- The “area” cannot be served by a community water system or a new community sewer system; plus it will be feasible to use individual wells on newly created parcels;
- An engineer or registered sanitarian must certify that all new development can be adequately served by on-site septic systems; and
- The partition or subdivision cannot force a significant change in, nor significantly increase, the cost of accepted farming or forest practices within one mile of the proposed development.
Nothing in the new rules is intended to prohibit the development, placement, or use of an existing single family dwelling on a vacant lot or a parcel lawfully created in an acknowledged rural residential area before the effective date of the rule.
In some instances, these new restrictions will not affect landowners who already have pre-existing rural residential parcels. However, for those landowners who have held on to their three acre or larger rural residential parcels knowing they could partition them into two or three one-acre parcels in the future, this door will close on September 29, 2000, and will not likely reopen in the future.
NEW ANNEXATION RULES
On May 16, 2000, voters within the City of Salem approved Ballot Measure 24-34 which amended the City Charter to require voter approval for all annexation applications, unless exempted under very limited exceptions. This Measure became effective on June 15, 2000.
Voter approved annexations are not new to Oregon. An increasing number of Oregon citizens are looking to voter approved annexations to control new growth in their communities throughout the State. However, voter approved annexations clearly are a significant departure from how annexations were reviewed and processed in the past.
Like it or not, voter approved annexations are here to stay. However, you can proactively approach your annexation proposal with proper planning and increase your opportunity for success. Following are some important thoughts to consider in the planning process:
Annexation petitions can be voted on during either a special or general election. General and primary elections are currently held in even-numbered years during May and November. Special elections are available, but the estimated costs involved in holding one are significant. Whether the added expense of a special election can be justified will depend on the number of other annexation applications on the ballot, and the size of the property/projects being proposed.
Total time allotment given for the review and approval of an annexation petition should be at least one year. This includes eight to nine months for processing by the City; and your annexation application/pe-tition will need to have completed the review process by the City before 90 – 120 days of the general election in order to allow adequate time for the measure to be titled, placed on the ballot, and any court challenges to the ballot title.
The above time frame does not include time spent in the overall planning and design of a specific proposal; nor does it include time for any engineering, land use, or environmental feasibility studies needed in preparation for the specific development proposal.
The costs for the application fees will increase. The City expects to have the filing fees pay for the full cost of the annexation processing, including the election. The City can establish special elections at any time. However, the cost involved for the review of the petition, preparation of and mailing of the ballots could run as high as $50,000.00. As identified before, there would need to be enough annexation proposals in order to pro-rate this significant cost, or the project would need to be of sufficient size in order to justify this cost.
There is a requirement that your annexation application have a specific development proposal submitted with the annexation request. This will require some professional fees and costs earlier than what would occur under the old process. Another professional fee that was not present in the old process was that of the political consultant. With the new annexation procedure, there will be cases where the use of a marketing or political consultant would provide that additional edge needed in order to obtain the necessary voter approval in a specific petition.
Proper planning ahead can provide the best opportunity for success. To the extent there is hope, there is still time to file for partition or subdivision applications on those rural residential zoned lands. Don’t delay.