Why should neighborhoods care about Preemption? SB 1533 and Portland’s new-found freedom.
Preemption, it kind of rolls off your tongue… or maybe not. It may not be easy to say, it certainly isn’t easy to understand. How many people really know what this means? And who benefits and who loses? Preemption is the ability of one level of government to override laws of a lower level of government (e.g. county or city). This “one-size-fits-all” policy approach constrains local communities from making policies that meet their specific needs and align with their values.
In Oregon we value governance from the group up. Preemption, which is the antithesis of grassroots governance, shuts down local choice and the ability of Portland’s famously active and engaged populace to make necessary change. But, sometimes the struggling activists win.
Most recently, affordable housing, health, and equity advocates celebrated the success of Senate Bill 1533, which lifted a current state preemption on inclusionary zoning. Inclusionary-what you ask? Inclusionary zoning, or inclusionary housing as it is also called, is a jurisdiction-wide regulation, provision, or requirement that new construction include units that are affordable by people with low to moderate incomes. To learn more about inclusionary zoning in Oregon read this white paper by the Oregon Inclusionary Zoning Coalition.
The passage of SB 1533 allows local jurisdictions to mandate affordable housing through a local policy. Before we start cheering too vigorously, note that SB 1533 did not completely relinquish preemption, and some limitations are still in play.
Think about it like a parent (the state) telling their child (local government) sure we can go outside and play, but we need to stay in the fenced yard, and we need to play nice with our siblings. But other than that have at it! In the case of SB 1533 the “fenced area” includes items such as: the policy can only apply to new development 20 units or greater contained withing a single building, affordable units are affordable to households earning no more than 80% of the area median income (as opposed to 60%); and the new development cannot be required to dedicate more than 20% of its units as affordable. In the same example, our “siblings” are developers. In order to “play nicely”, SB 1533 states the local policy must provide developers the option to pay their way out of creating the affordable units and that the city or county policy must include incentives to offset the cost of providing affordable units.
Another important point of clarification, SB 1533 does not require local jurisdictions to develop a policy, nor does is prevent them from continuing to do optional or voluntary affordable housing incentives and practices that are outside the state’s restrictions. In fact, Portland has been doing voluntary affordable housing for some time and may continue to offer incentives for voluntary affordable housing to expand beyond the limitations of this law.
With all of that said, does it mean that affordable housing will come flooding into town to solve all of our affordability problems? Does it mean rents will go down tomorrow? Don’t hold your breath; inclusionary zoning is only one tool to help increase affordable units. It doesn’t directly impact the current housing stock and it doesn’t impose any type of rent control on existing units. The benefit of SB 1533 is that it gives the power back to the locals to create a policy that works for them, allows for local innovation and exploration and sharing lessons learned to add to the body of literature out there about what works and doesn’t work for inclusionary housing policy.
The City of Portland is currently in the process of drafting a policy proposal for affordable housing which includes mandates mixed with incentives to make this work. City staff will share a draft proposal with city council this fall. SE Uplift’s Land Use and Transportation Committee will be hearing a presentation of the city’s proposed policy draft at their September 19th meeting (held at Taborspace) if you are interested in learning more.
In closing, SB 1533 is a good example of how preemption impacts local control and lawmaking – but affordable housing isn’t the only place where preemption in state statute exists, and it won’t be the last. It is always important for locals to keep an eye on proposed bills that include preemption and question who is pushing it and who benefits and who loses with that type of restriction on local governance.
By: Leah Fisher
Neighborhood Planning Program Manager
SE Uplift Neighborhood Coalition