SALEM — Owners would get more time to rebuild homes and businesses destroyed in the 2020 Labor Day wildfires, without running afoul of planning requirements, under two bills that have cleared the Oregon House.
Both bills passed on 56-0 votes on Tuesday, May 4. One goes to the Senate, the other to Gov. Kate Brown.
House Bill 2289, which goes to the Senate, gives property owners five years — instead of the normal one year — to start reconstruction, which would not be considered a “land use action” under Oregon law. It applies in areas affected by wildfires under a state of emergency declared by Gov. Kate Brown between Aug. 1 and Sept. 30, 2020.
The Labor Day wildfires destroyed an estimated 4,000 homes. The largest concentration (about 2,500) was destroyed in the Almeda fire in Southern Oregon, but other fires were spread across Oregon.
Building permits are not usually considered land use actions.
But Rep. Brian Clem, D-Salem, said a work group he convened under the House Agriculture and Land Use Committee last fall after the wildfires anticipated the potential of legal challenges to reconstruction. Clem became chairman of the House Special Committee on Wildfire Recovery this session.
“If this were deemed a land use decision, an angry neighbor could litigate, some other group could litigate. What we are trying to do is give a safe harbor,” he said.
“If you are rebuilding basically the same footage at the same location, it’s not a land use decision — it’s not appealable to the state Land Use Board of Appeals, it cannot be appealed to the county commissioners or the city council — and you can proceed with your rebuilding.”
The bill sets a deadline of Sept. 30, 2025, for the start of reconstruction in these areas. It allows the square footage of replacement houses to be up to 10% more than the original. Structures do have to comply with building codes in effect in January 2008 or at the time of original construction, whichever is later.
Clem said the bill has an exception for reconstruction in federally designated floodplains, where the Federal Emergency Management Agency can set requirements for property owners to take part in the national flood insurance program.
It follows up House Bill 3272, which also cleared the House last week and went to the Senate. Under it, people who lost their homes in the 2020 Labor Day wildfires would get a minimum of two years under insurance policies to repair or rebuild, and other insurance protections.
On a percentage basis, Clem said, more homeowners (25%) are in the building permit process in Detroit than in Paradise, California, which was destroyed in 2018. However, the mid-2020 population estimate for Detroit — which is east of Salem — was 205, the same as in the 2010 Census. Paradise counted 26,800 people in 2010; it was barely 10% of that total in a 2019 count taken six months after the fire.
Nonconforming use reset
Senate Bill 405, which goes to the governor, redefines what a nonconforming land use is. For example, a retail store can operate in an area that has become a residential neighborhood.
Under current law, nonconforming uses can continue indefinitely — unless there is an interruption in that use, such as inactivity or abandonment of a property, for one year. The bill resets the one year to start once the governor lifts the state of emergency that caused the interruption.
For the coronavirus pandemic, Brown has imposed a state of emergency since March 2020 and renewed her order every 60 days. The latest order is scheduled to end June 28.
“It provides a little bit of breathing room to ensure that owners of nonconforming properties have the time needed to gather resources and begin construction,” Rep. Pam Marsh, D-Ashland, said. “Affected landowners want nothing more than to be back in place. Rebuilding is a marathon, not a sprint.”
Marsh and Rep. Jami Cate, R-Lebanon, are from wildfire-ravaged areas.
“We’ve heard testimony from people feeling that their only hope of meeting this requirement is to choose a quicker option — whether that is predesigned-building plans that don’t quite fit their needs, or manufactured homes — rather than risk waiting for stick-built structures,” Cate said.
“Let’s give wildfire victims the time they need to navigate obstacles to rebuild their lives.”
Marsh said a different section of the bill is intended to help organizations such as the Oregon Country Fair, which was unable in July 2020 to stage its three-day fair on its property in Veneta, about 15 miles west of Eugene. The fair has announced that its July 2021 event also will be virtual.
The bill ensures that the fair can retain a nonconforming-use status for its property if it holds an event within one year after the governor lifts her COVID-19 emergency order.