Reporter-turned-lawyer Al Johnson saw injustice in housing and pushed Oregon to be better

OPB senior political reporter Jeff Mapes spent more than a year researching, reporting and producing “Growing Oregon,” a six-part podcast and web series looking at the evolution of Oregon’s unique approach to growth and the impact it has on our lives today. Here’s the story behind the story. In Part 1 we visited a time when Oregon’s farms and scenic beauty were under attack. In part 2, we told the story of how Oregon leaders managed to write the state’s unique and controversial growth limits. This is part 3. Listen to today’s story:

Al Johnson is giving me a tour of fast-growing north Eugene, where he lives on the fringe of the city’s urban development.

“This is a new neighborhood that is named The Reserve,” he says, laughing at the marketing employed by developers. “Of course, you always try to name things ‘preserve, reserve and enclave.’”

The truth is, a lot of this doesn’t look like a country enclave or anything like it. The front lawns are small. The homes are separated by only a few feet.

At one point, Johnson shows me a large apartment complex, built on the site of an old golf course. Townhouses and cottage clusters will cover much of the rest of the course.

All of this is not what you once expected to find this far out in suburbia – and still would not in most states. But Oregon cities are ringed by urban growth boundaries, invisible lines that prevent developers from sprawling out into the countryside.

Those boundary lines have created a different geography in Oregon.

And Johnson, a semi-retired land-use lawyer, has been shaping how Oregon looks within those urban growth boundaries since shortly after the system was created a half-century ago.

He took one of the aspirational goals of that new system – that communities had to make room for housing to fit all income levels – and turned it into a legal weapon of change.

“You don’t get to have 99% percent and 98% percent of your state put off limits for your enjoyment when you go out on your Sunday afternoon drive,” says Johnson, “and not expect to have to take some of that slack when you drive down the street in front of your house.”

A reporter sees a problem

Before Al Johnson came to Oregon, he worked as a small-town reporter and editor in Redding, Connecticut.

You may never have been to Redding, but you probably have seen this kind of place: Woodsy, affluent and governed by the exact kind of zoning laws that affordable housing advocates deplore.

In a lot of ways, Redding was a progressive town. People were concerned about the environment. Citizens played a strong role in the local government and were willing to pay for good services and schools.

“But as far as their land use went, they were pretty exclusionary,” he said. “They had a tendency to zone all of their land at one-acre minimums and have nothing but single-family housing in an entire town.”

That made homes expensive. Johnson and his young family couldn’t afford to live there. So like much of Redding’s local workforce, he commuted from a neighboring town.

He also covered debates about how those strict zoning laws purposely kept Black people out of so many communities. By using zoning to keep housing expensive, they keep out lower income groups – and that has historically made a disproportionate impact on Black homebuyers.

“I wrote an editorial when I was out there called American Apartheid, saying this is not a good thing,” Johnson recalled.

He became frustrated that his editorial words weren’t having much impact. And that helped lead him to law school. He wound up getting his legal degree at the University of Oregon. A big part of the school’s attraction, he said, was that the law school didn’t charge out-of-state tuition then, and that married student housing was cheap.

But it also put him in Oregon in 1973 when the Legislature passed its revolutionary growth controls. Those put much of the state’s open spaces off-limits to urban development. The new controls played into his interest in land-use law – and in how zoning and planning affect the real lives of people.

By 1978, Johnson was a lawyer working under contract with the Oregon Land Conservation and Development Commission as an administrative law judge. One day, he was assigned a case involving the tiny Portland suburb of Durham.

Today, you might know Durham because it’s right next to Bridgeport Village. That’s the big Washington County shopping center off I-5.

Back in 1978, Durham was even smaller. And town leaders had just approved new zoning rules that opponents said violated the housing goal developed by the commission. Known as Goal 10, it said communities had to make room for a broad range of housing that fit the income of all Oregonians. Citizen activist Betty Niven championed that goal, which is recounted in a companion story.

Johnson said he quickly realized the Durham zoning rules made a good test case. Some city officials “were pretty explicit about what they were trying to do,” he said. They wanted to set zoning standards that were “clearly intended to discourage apartment building.”

“

They are not going to be able to pass the housing buck to their neighbors on the assumption that some other community will open wide its doors and take in the teachers, police, fireman, clerks, secretaries, and other ordinary folk who can’t afford homes in the towns where they work.”

— Al Johnson

The city wanted to require 8,000 square feet of land for a single apartment unit. Developers would have a hard time making that pencil out. That’s more land than most lots being developed in Oregon for single-family houses these days.

City officials insisted they just wanted to create a semi-rural haven amid the bustle of the growing metropolitan area.

Johnson had seen just that kind of rationale in Connecticut. In fact, cities around the country had done the same thing for decades to keep their communities white and wealthy. Critics called it exclusionary zoning.

Johnson thought this was just the kind of thing Oregon’s new housing goal was aimed at preventing.

He had been thinking about this issue for years. The words flowed quickly out of him as he drafted a bluntly worded recommendation to the commission.

The commissioners liked his strong interpretation. And they largely adopted his language. The ruling, Seaman v. Durham, became the lodestar for how cities in Oregon had to think about housing when they developed their zoning rules.

“The housing goal clearly says that municipalities are not going to be able to do what they have done in metropolitan areas in the rest of the country,” Johnson wrote.

“They are not going to be able to pass the housing buck to their neighbors on the assumption that some other community will open wide its doors and take in the teachers, police, fireman, clerks, secretaries, and other ordinary folk who can’t afford homes in the towns where they work.”

Housing must serve everyone

Few people realized it at the time. But this was a huge moment for Oregon.

Johnson was saying — and his bosses were endorsing — a controversial notion: In Oregon, housing policies can’t just satisfy the desires of one community. They need to serve a broader good.

And cities that play the exclusionary zoning game can get sued and stand a healthy chance of losing.

You can see the result of that ruling all over the state. It’s one big reason more apartments were built in the suburbs, starting in the 80s and 90s -- including in Durham.

Arthur C. Nelson is now an emeritus planning and real estate professor at the University of Arizona. But he was a young consultant in Oregon when the City of Durham hired him to deal with Johnson’s landmark ruling.

At first, Nelson said, city officials told him they wanted to figure out a way to keep their large-lot zoning.

“They want me to fix their exclusionary policies so they can continue to be exclusionary,” he remembered thinking at the time. He explained to the town leaders that this wouldn’t fly. Eventually, he helped them find an area they could zone for realistic apartment development – as well as another section of the city where they could allow townhouses.

Today, there’s a 210-unit apartment building in Durham that provides subsidized rents for people making around $50,000 a year, depending on the size of their family. Altogether, apartment units now outnumber single-family houses, the city says.

Similar changes happened throughout the Portland region. In fact, the amount of land zoned for apartments in the region tripled in just the four years after the ruling.

Other cities found themselves facing legal action. As a private attorney, Johnson later successfully sued the City of Creswell when it wanted to exclude mobile home parks. LCDC told Lake Oswego it couldn’t simply say it didn’t want to allow denser housing. And Milwaukie was forced to relax restrictions on apartments.

These fights continue to the present day. In recent years, the state Land Use Board of Appeals has repeatedly ruled that Eugene must relax its restrictions on when and how a homeowner could add an auxiliary dwelling unit. Those are small units tucked into backyards, garages or basements. They were once known as granny flats or mother-in-law apartments.

One thing is clear, however. The land use system and its housing goals can only do so much. Planning for a certain kind of housing doesn’t mean it will actually get built.

At the same time, many older neighborhoods were developed under exclusionary zoning policies. And they still exist, largely unchanged – except that the cost of the homes is even further out of the reach of the “ordinary folk” that Al Johnson wrote about in his Durham decision.

“This is the typical American cities story,” said Lisa Bates, a professor in planning and urban studies at Portland State University, “and nothing about our land use system caused that, or stopped that from happening.”

Bates added that “we swim in the same ocean as everyone else in the United States in terms of social currents toward segregation and exclusion.

But Oregon’s system does give advocates like Bakes more of an opportunity. She’s worked with the Department of Land Conservation and Development on a program that will show communities how to add more housing to existing neighborhoods without spurring gentrification.

“We have some unique qualities that make it possible to act in the planning system in a way that is much more difficult in other places,” Bates added.

In much of the U.S., exclusionary zoning is legal and even encouraged. It’s a big driver of urban sprawl as developers seek open plots of land to build exclusive communities.

Critics of Oregon’s growth controls want to make it easier to expand urban growth boundaries to find more room for housing. They’ve promoted legislation in recent sessions that would allow cities and developers to build relatively modestly priced housing in certain areas just outside the growth boundaries.

But state political leaders have instead largely focused on finding ways to build enough housing inside existing boundaries.

One way they’ve done that is by landmarking new zoning rules. Oregon in 2019 became the first state to abolish exclusive single-family zoning. Most urban areas now have to allow up to fourplexes on single-family lots.

For his part, Al Johnson went on to a long – and often colorful – career as a land use lawyer. He represented the Rajneeshee cult when they tried to incorporate a city in central Oregon. He also helped win approval of the famous Bandon Dunes golf resort on the coast. He argued that the project was worthy enough in terms of economic development to gain an exception from the growth management restrictions.

Johnson calls it one of his most gratifying cases. For one thing, he said, it proved the state could have tough goals but still be flexible if a strong case can be made for development.

Johnson is proud of his role in Oregon’s housing history. But he said Oregon still has a long way to go.

Oregon needs to make sure, he said, “that everyone of all incomes and genders and races has relatively equal access and proximity to the good things – like the parks, the good schools, good libraries, the good neighborhoods.”

Next week: Oregon’s growth rules govern where homes and businesses can go. They also govern how we get from one place to another. And over the years, developers and environmentalists have fought repeatedly over just how many roads we need. One of the stiffest and more important fights was over Washington County’s Westside Bypass.

The Growing Oregon audio story is available through the OPB Politics Now podcast feed.