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The ADU HourAuthor: Accessory Dwelling Strategies LLC
The ADU Hour is a podcast that probes deep into ADUs and other small alternative infill housing. Kol Peterson, a nationally known ADU subject matter expert, interviews experts in the ADU space and then we have the guest take some questions from our live audience. Language: en Genres: Arts, Design, Home & Garden, Leisure Contact email: Get it Feed URL: Get it iTunes ID: Get it Trailer: |
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The ADU Hour w/guest Ethan Stuckmayer
Episode 17
Wednesday, 25 August, 2021
[00:02:18] Kol Peterson: Welcome, Ethan, good morning. [00:02:22] Ethan Stuckmayer: Thanks for having me.[00:02:23] Kol Peterson: Yeah. I'm excited for this, I was bantering with Ethan before this and I was kinda thinking what is exactly is the professional experience that you need to have to do this job that nobody else in the country has ever done before?What an interesting position you've been put in. For people's benefit, could you describe kind of your particular role within DLCD as far as your relationship to House Bill 2001, which we will describe in a minute?[00:02:47] Ethan Stuckmayer: Yeah. So I'm the Senior Housing Planner at the Department of Land Conservation and evelopment, which is really state of Oregon's land use department.We regulate what are called the Statewide [00:03:00] Planning Goals, and there's 19 of them, one of those is Goal 10. Goal 10: Housing, which is my domain, I guess, and this is the area which we implement the intent and the purpose of Goal 10. House Bill 2001 in 2003 are two pieces of legislation that advance DLCD's work in housing.And prior to House Bill 2001 and 2003, really, the 2019 session DLCD did not have a housing team, which we do have now, which is really exciting.[00:03:30] Kol Peterson: Do other states have a Goal 10 equivalent that is like a statewide housing goal mandate or is that unique to the state of Oregon?[00:03:39] Ethan Stuckmayer: I don't think it's unique to the state of Oregon. What is unique about the state of Oregon is just the context within which that sits. The state of Oregon is one of the few growth management states, Washington, there's others, that have high preference on preserving forest and farm lands and regulating the development [00:04:00] within a certain geographic boundary, urban growth boundary or, or similar.So I know that the state of California has things like The Housing Element that their Housing Community Services Division at the state level manages. But from my understanding, the state of Oregon is, is really quite unique in that. [00:04:17] Kol Peterson: All right. So let's describe House Bill 2001 in two minutes for a random Planner in N ew Hampshire, who's never heard of it. What is House Bill 2001? [00:04:26] Ethan Stuckmayer: Sure, so House Bill 2001, really pretty simply end s exclusive single family zoning in big and medium sized cities and the state of Oregon. So as a requirement to House Bill 2001, cities must basically update their development codes to allow certain middle housing types, which I'll define in just a bit, but those need to be allowed in every residential zone that also allows for the development of a single family detached home.So, converting those lower densities zones into a little bit higher density zones. Cities are still [00:05:00] allowed to regulate the citing and design and the look and the feel of middle housing, as long as those standards don't cause what's called unreasonable cost and delay. So basically those cities can apply only standards that they might only apply to single family detached homes, previously, things like building height, setbacks, lot coverage, all of those standards can't place an undue burden on the development of middle housing. That's pretty short version of House Bill 2001.[00:05:25] Kol Peterson: And describe for us this term, middle housing you're using that term that most people have been familiar with was coined by Daniel Parolek, "Missing Middle"housing. What is it? Are those the same thing? Why, why are we using the term "middle housing"? [00:05:38] Ethan Stuckmayer: Yeah. So middle housing, for the state of Oregon is a well-defined term. It's a collection of missing middle housing types that Perolek talks about. For the Oregon context, there is five: duplexes, triplexes, quadplexes, townhomes, and cottage clusters. And the reason why Oregon's not using "missing middle" housing is because it's [00:06:00] a long-term policy.We're hoping that in 20, 50 years, we're not missing those middle housing types anymore. It's just called middle housing. It's just part of our housing continuum.[00:06:10] Kol Peterson: Now House Bill 2001, unfortunately did not capture ADUs within this middle housing definition, which has some weird administrative history that we don't need to go into, but can you describe what House Bill 2001 did for ADUs, explicitly? [00:06:26] Ethan Stuckmayer: Yeah, I think the beauty of House Bill 2001 is that it's got so many different layers. For ADUs House Bill 2001 followed up the previous bill that you were just talking about, Senate Bill 1051, that required cities to allow ADUS in conjunction with a single family detached home. And city could only subject those ADUs to what are called reasonable standards. So basically House Bill 2001, with some years of experience of implementing Senate Bill 1051, the legislature identified a couple standards that cities were using that were maybe more unreasonable than reasonable.So [00:07:00] basically House Bill 2001 clarified that off-street parking requirements and owner occupancy of either the primary or accessory dwelling were quote unquote unreasonable for ADUs specifically. Yeah. [00:07:11] Kol Peterson: Right. For those who are on the call, it's the opinion of many people, including myself, that owner occupancy and off-street parking requirements are the two most common largest poison pills for ADUs that you will see prominently throughout regulations across most of the country. If you look at cities that actually do allow ADUs, they are oftentimes have those provisions in effect, so this is a really good example of a very simple one line legislative effort that effectively changes the course of the potential for ADUs to happen. Not that not to say that they will happen in great numbers, but that they can now potentially happen in Oregon cities. So how many cities does House Bill 2001 impact in the state of Oregon? And what does the total population that House Bill 2001 effects compared to the [00:08:00] overall state policy? [00:08:02] Ethan Stuckmayer: Yeah. So House Bill 2001, applies to cities and counties, but cities outside of the Portland Metro with a population of 10,000 or greater, and then cities within the Portland Metro of 1000 or greater. And there's different thresholds within those broad categories, but in total that's 56 cities across the state and three metropolitan counties. And then there's quite a few cities who are just under those thresholds. There's maybe about five or six cities that are definitely coming online in the next couple of years, but that's pretty close to two and a half million people in the state of Oregon. In the whole state, that's about 60% of the population. [00:08:43] Kol Peterson: Yeah. So 60% of the population is captured by hospital 2001. Okay. You know, and, and that's we have, I guess it's a fairly small population relative to a lot of us states. But th but the majority of the population is covered by this.[00:09:00] All right. So tell us about the history of house bill 2001 came into being.[00:09:03] Ethan Stuckmayer: Yeah, well that's tough, because there's a lot of history, there's kind of like two major history threads here. The first is the long-term history of race and income segregation in America. And then that plays into the short-term history of just rising home prices brought on by housing market that's really failed to keep up with the number and the capacity of the units that we've really needed over the past decade or so. Naturally that short term history is influenced by that long-term history and the conversation about middle housing is is important because it used to be part of our housing market, right? It used to be these row houses, multiplexes kind of all over our, our state and our country. And they're even referenced as kind of like traditional housing types because that's traditionally what we've seen built across the country. But I think in [00:10:00] the even shorter term, House Bill 2001 came into being as part of a follow-up to what the city of Minneapolis did in 2018, which was the first kind of city-wide elimination of exclusive single family zoning.And Oregon kind of took that a step further and did that on a statewide level, but really it learned from the success of Minneapolis, where they will able to create these coalitions of, of, of interest groups or advocates that don't usually play on the kind of same team and brought them together for this, this greater purpose of creating more housing, housing choice, housing options, and then leading to more affordable housing. And I think the lead up to House Bill 2001 saw a lot of housing advocates teaming up with the home builders association and Realtors teaming up with their housing advocates. Some of those things you just don't really see on a regular basis legislative session to session. So House Bill 2001 really I think, learned and was successful in [00:11:00] part because of City of Minneapolis. [00:11:02] Kol Peterson: Yeah. I think one of the themes this week has been the impact of this coalition building at a local, regional, and now a state level and the importance that that's had in terms of this general movement towards small infill housing or middle housing or whatever we're going to call it.So, what is your role and DLCD's role, more broadly, in developing regulations for House Bill 2001. For those who aren't familiar with the general rule making process, there's the law, the legislation, then there's the rulemaking process. So what is DLC D's role within the rulemaking or regulatory development process?[00:11:37] Ethan Stuckmayer: Yeah. So DLCD has got a very singular role in the state process. Like I mentioned, there's these 19 statewide planning goals and we're kind of like the protector of those statewide the Oregon statewide land use system. I say protector. I think some others would probably say more like passive observers or even some other people might say we're the [00:12:00] arbiters of the land use system. So DLCD's role is to be that face in front of the land system. Implementing it statewide and interpreting rules and, you know, playing referee at some points. And so basically when legislation comes through, right, the legislature sets the land use policy direction, that gets codified in statute, and then basically DLCD's role in that is to translate those statutes, which are broad policy directions, into actual rules and regulations to put forward an operationalize that that policy direction. So my role within all of that was to lead the rule-making effort for House Bill 2001, along with a huge group of advisory committee members to create the framework around how cities can and should and must implement House Bill 2001. [00:12:55] Kol Peterson: We'll talk more about the rulemaking process in a minute. Before we get there, let's talk [00:13:00] about the number of states staff DLCD department of land conservation and development staff that are 100% dedicated towards the implementation of these new standards across the state. [00:13:09] Ethan Stuckmayer: Right. So now, finally, DLCD has a housing team, which is an incredible asset, I think, for the state.So right now we've got four full-time staff members who are working on housing implementation across the state, focusing on Goal 10. And then we're supported by probably close to five others on a part-time basis. So we've got this big crew now to focus on monitoring, reporting, rule writing, enforcement, reviewing standards, providing technical assistance.And so it's really kind of incredible to see the amount of work that we've been able to do now that DLCD has a housing team, right. It's kind of new core work for DLCD.[00:13:50] Kol Peterson: And you referred to this as a big crew, and I just want to put a pin in that and be like, there's only four people for the whole state of Oregon that are executing this bill [00:14:00] that is going to have such significant impact across two thirds of the state as a reference point for other states that are considering this. The amount of bang for the buck there is really significant. Perhaps we'll see, we'll see how this all plays out. [00:14:12] Ethan Stuckmayer: Fingers crossed. Yes, that's correct. [00:14:14] Kol Peterson: So how is monitoring for compliance with the state standards going to be handled?[00:14:20] Ethan Stuckmayer: Right. So now that we've actually got some capacity to do that monitoring, reporting, and enforcement, it makes that job of fulfilling the intent of Goal 10 a lot easier. But historically DLCD has never really had much authority to play in an enforcement role. We manage the process that's known as the Post Acknowledgement Plan Amendment Process.For people outside of Oregon, that's basically the process by which cities and counties submit their new comprehensive plan and development code language, and the state kind of reviews it and says, yes, you meet all of the state's laws and requirements, that's kind [00:15:00] of DLCD is domain there. And thankfully we already have that infrastructure in place, so we can kind of utilize that. And there's some checks and balances there. House Bill 2001 is unique in that I think the legislature played a little bit of hardball to some extent with House Bill 2001. There's definitely more authority for DLCD to enforce the provisions in House Bill 2001. Specifically the state's model code for middle housing, which really has an enforcement mechanism. If cities fail to comply with House Bill 2001, by the specific deadlines and timelines. Then the state's model code removes or preempts the local control of how middle housing gets regulated in their city. So it's yet another tool in the toolbox for the department. [00:15:47] Kol Peterson: I had the perception going into the rulemaking process that model code meant we were talking about the best possible gold standard platinum level standard code. And that isn't [00:16:00] necessarily what the model code is, is that accurate? [00:16:03] Ethan Stuckmayer: Yeah, I think it's a blend of reasonable standards with best practice standards for regulating middle housing.It's definitely, I would say quote unquote goes above and beyond what most cities would consider reasonable regulations for middle housing, and that's really the intent of the model code is to be this shining star in some manner, but also be able to be implemented, right? It has to be drafted in a way that can be implemented without further amendment or adaptation. [00:16:35] Kol Peterson: And just to give some ground-truthing for those who are not intimately involved with this process. Let's give an example of model code for parking for say a quadplex what is the state's model code for parking for a quadplex going to be? How is that framed? And then what is the minimum compliance standards for a quadplex if a city doesn't want to use the statewide model codes? [00:16:56] Ethan Stuckmayer: Right. Yeah. For even more context there, we've got the [00:17:00] model code, which is very specific set of standards. And then what Kol mentioned was these minimum compliance standards, which are basically just setting the range of acceptable outcomes.And the model code is just one of those kind of cherry-picked acceptable outcomes. So the model code for parking might say for a duplex, you do not, or you can not require any off street parking spaces for that duplex. And then in the minimum compliance standards that says a city can apply basically no more than one off-street parking space for per dwelling in that duplex.So up to a maximum of two, but they have that option of going zero one or two from the total development, but nothing higher. [00:17:42] Kol Peterson: Got it. Thanks. Give us some context for the state laws that pertains to housing production metrics, land use and how a state housing policy is handled. How does this vary from how other states handle housing policies?[00:17:55] Ethan Stuckmayer: Yeah. So like I mentioned Oregon is I think, [00:18:00] fortunate to benefit from some fore- thinking way back in the seventies of the statewide planning goals, right. Goal 10: Housing sets the framework for all of what we do in the state for housing planning in the future over a 20 year period, the 20 year planning horizon.And so housing production, land use, all of that stuff sits within that frame. And there's a couple of things that the state of Oregon does that I think other states do, but the state of Oregon requires cities to basically run an analysis of their needed housing over a 20 year period.And then they have to take action on that information that they gleaned from that analysis. And so we're getting better at using things like data and metrics to actually measure progress towards achieving those needed housing units, but I think House Bill 2001 and even House Bill 2003, to some extent, which we haven't talked about, just beef up those metrics and beef up the state's ability to have at least a sense of [00:19:00] accountability at the local level.[00:19:02] Kol Peterson: Describe quote unquote clear and objective standards and why this is important in Oregon law. [00:19:08] Ethan Stuckmayer: Yeah. So part of past legislation, a few years ago already, required cities to only, they're only able to subject residential development to what are known as clear and objective standards. So those are standards where there's a measurable outcome that results from that standard and say your standard for building height is 25 feet.And that standard is, you know, very clear, very objective. There's no subjectivity in that analysis. And those are the only types of standards that cities can apply to residential development. And it's an incredibly important in not only the state of Oregon, but if other states or other jurisdictions use it because it removes some of that conflict or the tension at the local level in making land use and residential approvals. It removes the conversation about neighborhood compatibility and, and [00:20:00] all of that kind of stuff, which just opens the door for more residential development, which we know is needed.[00:20:06] Kol Peterson: I will say that there's still opportunities for a loophole exploitation from local jurisdictions. For example, you could measure 25 feet from the lowest point of grade or the highest point of grade against a structure. So there's plenty of opportunities for cities to still be squirrelly if they wish to do so. Any commentary on that? [00:20:27] Ethan Stuckmayer: Yeah, there's certainly no no end to the conversation of what is truly clear and objective all of those standards. There's definitely some like you say, wiggle room to regulate those in a particular way that may or may not be clear and objective.And we even within, like you say, the building height standard it varies from city to city, do you measure it at the average grade or the lowest grade, the top grade? What is a true, clear, and objective standard that we've only kind of begun down that path in the state of Oregon. It's [00:21:00] a couple of years old at this point, but even some cities are still struggling to get to that true clear objective path, even today.[00:21:07] Kol Peterson: So speaking of jurisdictions attitudes towards this particular set of regulatory rules that they must be subject to now. There's potentially some awkward tension that is embedded within removing land use authorities from local controls. And this is, you know, historically a lot of zoning occurs at the local level as opposed to at the state level.So as an advocate for more housing or outside observer, I don't have any particular issues with reassigning those authorities towards the state if it achieves my particular interests in promoting more small infill housing. But can you speak to this issue for us? What have been some of the tensions that you've observed or that you foresee as House Bill 2001 rules come into effect? [00:21:52] Ethan Stuckmayer: Yeah, I think part of the impetus for House Bill 2001 was an understanding of the [00:22:00] extent of the crisis that we find ourselves in. And there's been a structure in place where cities regulate housing for a long time in a particular way. And in part, and there's lots of other factors, but in part, those regulations have led us down a path that we are in right now.And so I think the sentiment at the legislature in advocates is that if cities and regulatory bodies had kind of had their chance to allow these housing types and they just haven't taken up the opportunity. And so it was time for the state legislature to step in and make some changes at a top level so that it could achieve some outcomes at the local level.And I think that's really where the tension arises. When I speak to planners across the state about, "Well, now there's all these regulations and it's opening the door for the state to preempt my local codes. And, you know, I thought that [00:23:00] was part of our statewide planning system where there's community engagement and we're able to regulate our community in a certain way. And now you're kind of removing that." I think that can both work in unison, right? The legislature sets the policy that you hope kind of better society in a way. And I think yeah there's opportunity for both the community to regulate itself and for the state to set the direction. I think both of those can exist at the same time.[00:23:26] Kol Peterson: Let's give a one minute overview to differentiate the political legislative process and the actual administrative rulemaking process. Can you describe what the rule making process for House Bill 2001 established for the state? [00:23:40] Ethan Stuckmayer: Yeah, so the political legislative process at the state level, like we've mentioned, sets the policy direction and it sets these broad parameters that then get codified into Oregon revised statutes.[00:23:54] Kol Peterson: Give us an example of the broad parameter. [00:23:56] Ethan Stuckmayer: Sure like a definition of a cottage cluster [00:24:00] or something like that. [00:24:01] Kol Peterson: Okay. [00:24:01] Ethan Stuckmayer: Maybe that's a bad example. How about the language in House Bill 2001 that says "the cities must allow middle housing in areas zoned residentially that allow for the development of middle housing." Right. And so what does "in areas" even mean? That's, DLCD's role to define what that actually means in rules and regulations. So, those kind of north stars that the legislature provides become really important because the rules have to implement that purpose, that intent of that policy. And so to help us do that, DLCD brought together a group of about 55 people on an advisory committee and then various technical advisory committees that help us kind of build out those rules. It was really important to DLCD to have a broad range of experiences on that advisory committee, because, we don't have the understanding of local context in a city like Eugene, and then a city like Hood River, and Ontario, and all of these places are [00:25:00] completely different.So bringing those people to the table is really important to create a good set of rules and something that could be implemented on a statewide level or rules that are drafted on a statewide level, but then can be implemented at the local level. Our rulemaking process was a full year. We had hours and hours and hours of long meeting. Cole was there for, for lots of them. And really, it ultimately led to kind of three major pieces of rules. The first is like the nuts and bolts of these rules, sections of the definitions, purpose, the applicability, how DLCD will enforce the rules. But then it also adopted a model code, one for medium cities and one for large cities, those are different.And then it established the set of minimum compliance standards, which we kind of talked about. What is the range of acceptable outcomes? How do we define unreasonable siting and design standards? So those packaged together is what we adopted in the rulemaking process. [00:25:56] Kol Peterson: And what were some of an example of a significant [00:26:00] policy change or outcome that occurred as a result of the rulemaking process? Just to ground truth, like give some examples for people to understand. [00:26:08] Ethan Stuckmayer: Yeah. I actually have like a top five. [00:26:10] Kol Peterson: Okay. [00:26:10] Ethan Stuckmayer: Highlight list. [00:26:11] Kol Peterson: Okay. [00:26:12] Ethan Stuckmayer: So first is that the rules established a clear expectation for cities and that middle housing needs to be allowed and an as needed housing, its desired housing and that cities must allow it. And then, second, it kind of shifts the paradigm away from city development codes that basically kind of subsidized single family detached home dwellings exclusively, and then kind of treats middle housing on at least an equal footing. Maybe even a stronger foothold for middle housing in some cases, but at least equal footing. And then we had this legislative direction about unreasonable cost and delay, and I think the rule making process better defined what that phrase actually means.And so that was a huge piece to tackle in that rulemaking process. Number four, I think one of the things [00:27:00] that surprised people in the rulemaking process is that the state kind of took a little bit of a hard line stance on off street parking mandates, basically limiting that to no more than one off-street parking space per dwelling unit in the middle housing.And then finally, and I think maybe the most important one is that it opened the door for continued conversation about Goal 10 and just how badly Goal 10 needs to be reformed, or at least how DLCD and forces Goal 10 across the state. [00:27:29] Kol Peterson: As other state legislative bodies and advocates consider a statewide legislation, akin to House Bill 2001, which has now occurred in Nebraska, Connecticut, and has been considered in states such as Washington, California, Montana, Minnesota, Maryland, Virginia, North Carolina, New Hampshire, and Vermont. Can you speak to what advice you would offer to make legislation better than House Bill 2001? [00:27:55] Ethan Stuckmayer: Yeah. It's hard to get better than House Bill 2001. No, I'm just kidding. I think the catalyst [00:28:00] behind all of these states taking this action is really just an understanding of just how in depth and how broad the housing crisis is.And there's just a need to use kind of every tool at our disposal to overcome it. So it's great to hear about all of those states and I've had conversations with some of the folks in those states kind of trying to learn from the state of Oregon, but I think really the suggestion that I would make for the cities is just to ask the legislature to be abundantly clear on the purpose and intent of all the specific provisions in the bill.Kol, you know, that there was many times in the rulemaking process where we had the kind of sit down and try to read between the lines as best we could on certain phrasing things like "unreasonable cost and delay", the "in areas" question that we talked about. So I just think that the more clear the legislature can be and the intent and the conversation around those provisions, the better.I also think that the model code played a huge role and is absolutely critical in [00:29:00] the enforcement of House Bill 2001. And in all of those kinds of future legislation pieces. So it's really invaluable. I've talked to a lot of planners across the state about how the model code acts as this like boogeyman in the corner of the council chambers, when they're having conversations about how to implement House Bill 2001 and elected officials are, really, I think nervous to accept the state's model code as a default option.And so they're kind of making decisions that they may not have made in lieu of a model code kind of looming over them. So it is a little kind of like punitive in that, in that sense the model code is, but I think it plays that role really well. [00:29:44] Kol Peterson: So California state laws related to ADUs are very prescriptive, such as cities must allow for ADUS to be four feet from the property line in contrast to House Bill 2001, which are not as prescriptive. The legislation might say something to the effect of mental [00:30:00] housing must be as, as easy to develop or to permit as single family dwellings. So I see pros and cons to this level of prescriptiveness within legislative language.Do you wish the House Bill 2001 had been more clearly defined or do you think it's better to have left it vague enough for a more technocratic rule making processes like the one we were just talking about to allow for flexibility on the implementation of these legislative intents. [00:30:27] Ethan Stuckmayer: I understand the vagueness and the undefined terms that need to be used in the legislative process, because there's, I think a desire for legislators to not really be very prescriptive in how they're providing this policy and then kind of let it play out.And they don't want to be the final decision maker on some of those topics. So things like "unreasonable cost and delay". I think questions around unreasonable cost and delay may be better answered by litigation and legal challenges to fully set case law around what is and what isn't [00:31:00] unreasonable cost and delay.So I understand the need to be vague in that respect. But every time something's left undefined it led to a lot of headaches that I wished I didn't have to have in the rulemaking process and conversations that seemed like they were going around in circles about really what was intended by the legislature, in that, with that certain provision.But I think it's important to have those conversations because you get to a better policy outcome when you're able to kind of sit down and work in the trenches with like a really knowledgeable advisory committee and work through those sticky issues to, to come up with a better outcome than maybe a a legislative direction might've been.So I understand the pros and cons. I see both, but I don't think I would change it. [00:31:47] Kol Peterson: So let's talk about Senate Bill 458, which is not House Bill 2001, but it was just enacted recently in the last few weeks, subsequent to House Bill 2001. Can you describe what Senate Bill 458 is and what the timeline [00:32:00] for the passage of this new law was and how it relates to House Bill 2001?[00:32:04] Ethan Stuckmayer: Yeah. So Senate Bill 458 is really a bill that's directed at House Bill 2001 implementation. So basically Senate Bill 458 requires cities that are subject to House Bill 2001. They allow middle housing lot division. For any middle housing type that's built after June 30th, 2022, which is also the deadline for implementation of House Bill 2001.So cities must allow if a property owner comes with the development of a form of middle housing, they must also allow for the division of that lot into an equal number of lots to the middle housing type. So if it's quadplex and they have to allow a division of four lots of that parent lot. Senate Bill 458 was in response to some how the rulemaking was playing out for House Bill 2001. We had lots of conversations in the rulemaking about, do we allow detached Plex [00:33:00] developments and cottage clusters? What does that mean for a property owner to build that? And how difficult is that actually, to move that housing type after you've built it? Knowing that House Bill 2001 had really kind of this limited home ownership opportunity associated with it.I think there was a need for Habitat for Humanity who is the sponsor and author of that Bill to go forward with this follow up to House Bill 2001. [00:33:26] Kol Peterson: What was the legislative intent of Senate Bill 458? Maybe putting words in the mouth of habitat for humanity here. And what does this mean for the relative impact and scalability of the House Bill 2001? [00:33:40] Ethan Stuckmayer: Personally, I think Senate Bill 458 has a huge impact on House Bill 2001 implementation. I think one of the major criticisms that I heard of House Bill 2001, that it's, "Oh, it's created all this new rental stock. And, you know, that's not really creating generational wealth through home ownership." So I think really the [00:34:00] legislative intent of Senate bill 48 was to clarify that no, House Bill 2001 really is this home ownership opportunity, but we just needed to fix a couple of things because splitting those lots to be able to sell those in a fee simple manner was really difficult and now it's much easier. So I think it's it, even in my mind goes a little bit beyond House Bill 2001 and Kol, you and I were talking about this earlier. I think it really opens up the door for deeper conversations that we need to have about our kind of systems that we have in place that really center around home ownership.So infill developments, infrastructure, cost, sharing, tax base, how cities spend money on schools and health outcomes. I think it really goes beyond just providing more housing choice. Especially when you tie the home ownership aspect to that.[00:34:52] Kol Peterson: What was the rationale for allowing for detached middle housing types in the model code? And just to be clear you know, a lot of cities [00:35:00] defined duplex or triplex or fourplex as attached dwellings within a single structure, but the model code that is the default code to which cities will be subject, if they don't pass their own code, that is compliant with House Bill 2001. You must allow for a detached duplex or triplex or fourplex on your property [00:35:17] Ethan Stuckmayer: So further clarifying that the Oregon Administrative Rules that the quote, unquote, minimum compliance standards also give cities that option. So we define a Plex as an attached in an attached configuration, but give cities the option to also allow a detached configuration.So basically the rationale for that was that really boils down to like ultimate flexibility. And I think also a realization that there's now a lot of parody in housing types in Oregon. If a property owner can build a detached ADU because of Senate Bill 1051, what is the real difference between a detached ADU in somebody's backyard and building a detached duplex? It's still at the end of the day two units on that same [00:36:00] lot. There's no real difference there than maybe I guess size is the only thing I can think of. But so I think detached middle housing is really just a recognition of we need to kind of get out of the way of like these standards that don't make a whole lot of sense.And why are we kind of segmenting all of these housing types when we should just be focused on providing as many options and as much choice as we can. [00:36:23] Kol Peterson: So cottage clusters are a concept that have a lot of potential application, but we haven't seen many actual cottage clusters examples built in modern times.What are cottage clusters and why haven't we seen many of them built? [00:36:35] Ethan Stuckmayer: Yeah. So cottage clusters is one of the only housing types in House Bill 2001 that was really defined. Townhouses had some definition, you know, units on a lot that share property and share a wall on the property line. And then they kind of just said, quadplexes, triplexes, and duplexes.Like everybody knew what that was. But cottage clusters was different. Where it's no [00:37:00] less than four units an acre, they're surrounding a common courtyard, each unit has a building footprint of 900 square feet or less. And so the legislature really defined that closely, which is different than how they talked about other middle housing types.But I think cottage clusters are an interesting prospect. They look really nice when drawn on a schematic drawing. And I think like this green space and these trees and all that kind of stuff really resonates with people and they can visualize what it looks like. But the reason why we don't see any of that built is I think this Russian nesting doll effect of standards that just create all of these barriers.First, most cities don't even allow those outright and forced them to go through some sort of like design review or PUD process. Maximum density requirements basically preempt all consideration of cottage clusters because of the density is just so high on a per on an acre level. Off-street parking requirements, setbacks, pedestrian connections, the size of the [00:38:00] courtyard all create this, a small building envelope where you just can't pencil the development.And then the owner, the home ownership portion of that, and the fee simple sale of those units was really difficult. I mean, what do you you're supposed to do condoize those units? I don't, I, I don't know of many property owners who are interested in doing that. So now today, as we sit here in 2021, kind of all of those hurdles have been removed or diminished greatly.So I do have high hopes for cottage clusters, but I think the other part that I didn't talk about was just like the capacity, interest, institutional knowledge of people who have the opportunity to build those and whether they would choose to build those over some other type of middle housing.So that's my only concern. In relation to cottage clusters, we've kind of cleared the hurdles, but is there a desire for those? [00:38:52] Kol Peterson: Yeah, we don't know it's interesting now that the hurdles are removed. The way I think about it is with the way that the legislation was [00:39:00] written, you can't do this realistically on a lot that's less than 7,000 square feet and really, really want 10,000 square feet or more. Aside from that, I think certainly coupled with 458, there's a lot of potential with that particular bill to make less expensive fee simple housing, ADU sized housing out there, which is pretty cool.But what unique roles do you see cottage clusters playing compared to other middle housing types and also to follow on what unique role do you see townhouses playing compared to other middle housing types? [00:39:28] Ethan Stuckmayer: I think cottage clusters are really primed for things like mixed income, mixed generational, mixed family opportunities.I think those are really interesting. I'll also like cottage clusters for co-housing and cooperative housing developments, where I think cottage clusters create this home ownership opportunity for maybe smaller like budding family groups, or even kind of downsizing boomers who just want their own little space, their private space, but then [00:40:00] also are okay with sharing an open space and interacting with their neighbors in that particular way.And then compare that to townhouses, which I think is a slightly different segment of the population where I see townhouses being built and more infill lots where services and transit and jobs are readily available. Whereas I think cottage clusters are kind of on this, like Greenfield, large lot developments.Whatever's kind of left in a city because like you said, they just need more space. And I think that's kind of the beauty of middle housing, right? The whole purpose of middle housing is to create these options for people and creating the choice to live in a particular area or in a particular building or unit depending on your needs is really the, the underlying purpose of middle housing and House Bill 2001.[00:40:49] Kol Peterson: Do you think it made sense to include both those particular housing types within the definition of middle housing? And conversely, do you think ADUs should have been perhaps included in the [00:41:00] definition of House Bill 2001? [00:41:02] Ethan Stuckmayer: I think it was important to include both cottage clusters and townhouses.I think also it was important at the time because the legislature was operating in like a pre Senate Bill 458 world where cottage clusters and townhouses. The townhouse was really kind of like the home ownership opportunity where you have all of these these lots that can be built in this infill kind of context.And then cottage cluster is where something similar, but maybe in like a Greenfield context. So including both of those, I think was really important. And, I think part of the reason why the legislature went with cottage clusters was because they really defined the cottage cluster and because they were looking for smaller units that were quote unquote, more affordable as a result.So I think it was important to include both of those. I, I do think the conversation about ADUs is an interesting one because when people talk about middle housing, I think it's, it's mostly intended [00:42:00] to be kinda like a form-based response to creating more density. I think that's probably what Daniel Parolek would kind of lean on when he talks about middle housing and maybe why ADUs aren't there, because it is still rely on the single family detached home to be part of that development.And so it's a transition piece that ADUs can be used as this kind of transition piece into a more dense neighborhood context where I think middle housing is more like we're going to jump in and it's still looks and feels like single family detached homes. So there's not this kind of conversation about out of context, but then it is kind of like this paradigm shift, whereas ADUs are maybe a little bit more incremental.[00:42:43] Kol Peterson: What are some lessons that you've learned about how to talk about middle housing so that it's not perceived as a threat? [00:42:50] Ethan Stuckmayer: Hmm. Yeah. I think a lot of people still do, to this day think of middle housing as a threat. And early on, I tried to dispel [00:43:00] some of the the fears or the, or at least the kind of article headlines about House Bill 2001, that it was kind of criminalizing the single family detached home that you owned or would result in somebody coming knocking on your door, asking to buy up your house so they can tear it down and build a cottage cluster, a huge apartment complex or something like that.And I, which is just not the case of House Bill 2001. If anything, it provides you as a property owner with more options to do things with your property, which I think kind of flips that conversation a little bit when you're talking with people and they're like, oh, okay, I think that makes sense.The other thing is that I think a lot of people think that, oh, now all of a sudden this is going to just, you know, completely overnight, snap on my fingers and it's going to change the context of my neighborhood and nothing's going to be the same and it's going to be this rapid change.But my boss at DLCD, Gordon Howard, likes to remind everyone that this is really a 20 year, 50 year transition of our neighborhoods. It's definitely not overnight. He [00:44:00] likes to try that the analysis that he did for the city of Portland a couple of years ago when they allowed ADUs across their city and basically kind of did the math that at the rate city of Portland is building ADUs, it would take something like 300 years for every eligible lot to have an ADU. So the timeframe of change is really long. And so it's not going to be this kind of rapid change. And I think another part of how we talk about middle housing is that if you're trying to relate to people in understanding how their housing needs have changed over the course of their life.And at certain times you wanted or needed or had to live in apartment because maybe that's what you could afford, or it's near a job, or maybe later on in your life, when you have married and kids, you want to more room or more space or something like that. And so your needs are constantly shifting.And so why do we need to limit ourselves to just these two options? If we have the ability to make people's lives easier and have provide more choice and more affordability, [00:45:00] why not do it? Talking about middle housing in those terms makes people think in a little bit of a different.[00:45:05] Kol Peterson: Final question. What role do you see mobile dwellings, such as tiny homes on wheels or RVs on residential properties playing in the future of residential zoning? [00:45:16] Ethan Stuckmayer: Yeah, I think House Bill 2001 and the other piece of legislation in House Bill 2003 is opening up this conversation about how does the state of Oregon define housing? And especially needed housing?We know that we need more housing, but do we need every single type of housing at our disposal to meet our housing need? And lots of people say, yes, lots of people say we should be focusing on other types of housing other than what lots of people think are temporary dwellings, right? And so I think the conversation about mobile dwellings and specifically tiny houses on wheels and RV, comes into that conversation about [00:46:00] what type of housing should we be planning for? And that really boils down to the bigger question of what is housing in the state of Oregon. So you know, 2020 was an interesting year in terms of writing rules for middle housing in the context of people experiencing COVID based homelessness because of the loss of a job or loss of income or things like that.And then in the state of Oregon, huge wildfire displacement impacts. And we're kind of sitting in this crisis even greater than the one that we were experiencing prior to 2020 and just trying to get people housed. So we need to have a greater conversation in the state about what's the appropriate amount of housing or what types of housing should we be planning for to accommodate those people?So I don't have a good answer, but other than it's a work in progress and I think those will become more and more important in that conversation. [00:46:54] Kol Peterson: Thanks. Great. Great answers Ethan. Kelsey, come on out. Well, one question we wanted to [00:47:00] pose to you before we get to the attendee questions and I understand there's quite a few good ones. What, what big changes do you foresee having some of the largest impact in terms of housing production in the coming decade if you were to speculate? [00:47:11] Ethan Stuckmayer: Yeah, well, some of the things the state's already done, which is great. Making fee simple ownership of middle housing more approachable and easier. And I think Senate Bil 458 does that. It dispels a lot of the fears about this boon in rental housing, which we do need, but we also need the home ownership. So I think you get both with 2001 and Senate bill 458 paired together. One of the things we didn't talk about, the other thing is that the state of Oregon is doing is House Bill 2003, which has two big pieces that I think are really important.The first is housing production strategies, which requires cities to set forth their 20 year plan to accommodate the housing that they're needing over the next 20 years. So what are the specific policies and actions that you'll be taking to facilitate the [00:48:00] production of housing in your city? And what role are you playing as a city to see the production of that housing? That's going to be huge. I think that has a long-term impact on removing barriers, providing incentives, helping out financially with development of affordable housing, big time stuff. And then the other piece of House Bill 2003 is the Regional Housing Needs Analysis, which the state of California does currently, the state of Oregon is considering adapting that to the Oregon context. And that includes an analysis that is not currently included in how the state does housing planning of including the underproduction, the historic underproduction of housing in the calculation of future housing. And then also trying to ask cities to respond to people experiencing homelessness in their community.So it's kind of a, yet another reform to Goal 10, which I think ultimately is what's necessary. [00:48:56] Kol Peterson: Thank you. Kelcy take it away.[00:49:00] [00:49:00] Kelcy King: So why are you still using the term single family? Single detached is more equitable and does a better job of describing the housing type. [00:49:09] Ethan Stuckmayer: Amazing, amazing point. And I catch myself doing that all the time. Part of why single family dwellings we use in the in the Oregon Administrative Rules is because of the way that the legislature has codified the conversation around residential development.It's still listed as the needed housing type. And I think ultimately what needs to just take places, a full rewrite of the statutes, or at least in the edit to eliminate the use of single family detached from the conversation in the state of Oregon. It's, it's one of those things where the state has not gotten to the point to the point of rewriting those basically. [00:49:51] Kelcy King: Owner occupancy is not an unreasonable cost and delay. It can actually lower cost and rents by preventing large developers from buying up density in market rate [00:50:00] housing. Affordability needs to have the same priority as densification. [00:50:03] Ethan Stuckmayer: Yeah, I can, I can definitely sympathize with that. The, the ADU provisions and hospital 2001 I think were a reactionary response to some of the standards and the litigation that took place over the course of the four or five years prior to House Bill 2001. Related to ADU is as a result of Senate bill 1051. And those were the two major pieces that constantly went to legal challenge.And so the legislature kind of just said, you know what, we're just gonna eliminate that. And these are now considered unreasonable standards for ADUs. [00:50:42] Kelcy King: Can you comment on the potential downsides of state preempting, local control, such as state legislatures controlled by rural districts, potentially prohibiting local jurisdictions from banning single family housing?[00:50:54] Ethan Stuckmayer: Yeah, that's the conversation that we have all the time internally. As DLCD is [00:51:00] getting more and more directive from the legislature about using House Bill 2001 as kind of a model for state preemption of local codes what is the right balance to strike there? Like I said earlier, part of the catalyst for House Bill 2001 was the sentiment about, well you had your chance, and now we need to take action at the state level to remedy some of those those a decade long or decades long injustices in the housing market. So I think there is a time and place for those kinds of preemptions, but again, couched in understanding that we should not let it run rampant. Especially because that's part of the heart and soul of Oregon's land use system, right? Everybody likes to tout Goal 1 as the community engagement, Goal 1 for a reason. But yeah, fine line to be drawn. [00:51:49] Kelcy King: So I'm gonna ask this question then I also have a personal follow-up question based on this one. What plans do you have for legislation that facilitates permanently affordable home ownership, such as Trusts and [00:52:00] Co-ops?[00:52:00] Ethan Stuckmayer: Hmm. Hmm. So I think that's part of a broader conversation that we expect cities to have related to the housing production strategy portion of House Bill 2003. So, typically, cities have gone through the housing needs analysis process and the accommodation of needed housing through usually only zoning and land use using only those kinds of tools, rezoning lands, bringing lands into UGB, annexing so on and so forth.But House Bill 2003 changes all of that and asked cities to use all the tools at their disposal to accommodate the needed housing. And so no plans currently, and I think it takes legislative direction to go that way to require cities to do that. It's definitely encouraged, just include in one of the menu of options.[00:52:47] Kelcy King: Is eminent domain a tool that is available in terms of the menu of tools? [00:52:53] Ethan Stuckmayer: From DLCD perspective, it's an option, certainly, I think that's the, [00:53:00] the legal right for cities to use that, whether they use it in the political firestorm, that results after using that is kind of up to the city.And I think, partially, the reason why you don't see it use a whole lot is because of that.[00:53:13] Kelcy King: House Bill 2001 defines cottage clusters as made up of detached housing units with a footprint less than 900 square feet each. Do you think that there is a path or a plausible advocacy opportunity to have cities, example Portland in RIP to project or by state model code, including this in conception, tiny houses that are movable either by being on wheels or being redeployable, detached to foundations?[00:53:38] Ethan Stuckmayer: Interesting. I think there's probably a pathway there. I think one of the issues that we run into with the cottage cluster definition in House Bill 2001 and in rules is that it is so specific. And so we've had lots of conversations with cities about, well, we want to allow some sort of like attached version of cottage clusters, where it's in this U shape and the [00:54:00] courtyards in the middle and something like that, and that's a great housing type. Right. But the way that the legislature has defined a cottage clusters as detached units with a building footprint of 900 square feet or less, doesn't really lend itself to that option. So we're encouraging cities to go that route, but then please provide the path for the definitional cottage clusters in your code and anything above and beyond that is great. [00:54:28] Kelcy King: I think of that from a financing perspective of how hard it is already to finance any sort of mobile dwelling, what products you would have to come up with to make those things work? Specifically, how was the fee simple problem of cottage clusters or ADU addressed by Senate bill 458?[00:54:45] Ethan Stuckmayer: Yeah. So basically Senate bill 4 58 allows that land division process for those middle housing types. So example I can provide is a detached quadplex right. You have four detached units on a lot.[00:55:00] Prior to Senate Bill 458, it was really hard to be able to sell those units.Each of those four, individually, without going through some sort of like condominium visitation of those lots, creating an HOA, creating all of the insurance issues that come with that. But now, thanks to Senate Bill 458. You can subdivide those. You can sell those lots in those units off individually without having to go through those administrative hurdles of condoizing. [00:55:26] Kelcy King: What leverage or strategy is there to get cities to allow more than four units in the cottage cluster? [00:55:32] Ethan Stuckmayer: Sure. So the way that the administrative rules for cottage clusters are drafted is that cities can not apply things like maximum density standards, they can not apply maximum lot coverage standards above and beyond what is allowed for single family detached homes. So there's no kind of maximum litmus for how many cottages you can put on a lot. And we ask cities to just regulate that trending maximum [00:56:00] based on things like setbacks, parking, building separation, pedestrian connections, the courtyard.So cities are are, in fact, prohibited from placing that maximum number of units standard on those cottage clusters. [00:56:14] Kelcy King: Thank you. Are there any provisions in place for consideration of square footage per occupant in the primary dwelling before allowing expansion of footprint? [00:56:23] Ethan Stuckmayer: Hm, not in House Bill 2001, no. There may be local city standards for ADU is that Kol might be able to speak to better on that, but hospital two doesn't one does not.[00:56:34] Kelcy King: Are cottage clusters is intended to be a rental or ownership option or either?[00:56:39] Ethan Stuckmayer: Yeah, either. So the way that the definition of cottage cluster exists in Oregon Administrative Rules is that the cities can allow cottages to be built on one parent lot. Or this was again, prior to Senate bill 4 58, they could have those be built on individual lots.So cities have the [00:57:00] option to play a role in creating more home ownership opportunities in that regard. So definitely both that's, there's nothing in 2001 that speaks to how they must be tenured. [00:57:10] Kelcy King: I'm also really curious about this. Why are mobile home parks never mentioned as options?[00:57:16] Ethan Stuckmayer: Yes. Recently we've been having a conversation about manufactured dwellings as middle housing. And what does that mean and how do the two state statutes, one for middle housing and one for manufactured dwellings interact and overlap? And so part of the pathway that we're proposing or recommending is that cities shouldn't be prohibiting manufactured dwellings as middle housing, but what they can do is just require that those dwellings be meeting the Oregon residential building codes.I think there's a lot of anxiousness at the city level about, oh, somebody is going to take an old 1960s manufactured dwelling and put it in their backyard and call it a [00:58:00] detached duplex or something like that. And so, I don't know how real of a problem that actually is or how real the concern that actually is, but the cities, I think, can't get in the way of somebody doing that, other than just saying it should meet building codes.[00:58:16] Kelcy King: I'd be curious, too, to see in terms of affordability, whether it can be more of a land trust model instead of a single ownership model with a lot of space fees. [00:58:27] Ethan Stuckmayer: One of the early iterations of the rules and defining middle housing was that we specified that it could be either site built or built offsite.And we kind of remove that because we felt like it tried to be inclusive, but it was actually exclusive. And so we just remained silent on it to give the ultimate amount of flexibility in that regard. [00:58:48] Kelcy King: Last question, the general framework of Oregon's new laws focuses on supply and demand to solve the affordability problem.We know that this is inadequate. How do you plan to push back against this in the future legislation? [00:59:00] [00:59:00] Ethan Stuckmayer: Yeah, so thankfully DLCD is not the only state agency working on housing. And I think House Bill 2001 is a land use bill that focuses on that supply and demand conversation about the housing affordability crisis. Thankfully , in the same legislative session, and in this current legislative session that ends in about 13 days, the legislature is doubling and tripling down on the amount of subsidy that they're providing for affordable capital, a affordable housing development across the state. So it's not a, we just do House Bill 2001 and we do nothing else, it's House Bill 2001 plus 13 other options as well. [00:59:42] Kelcy King: Thank you. [00:59:43] Ethan Stuckmayer: Thank you, Ethan. Great answers. Super helpful.
