Jordan Ramis pc. Attorneys at law
Rewriting the Zoning Code by Memo
<< Back To Listings
This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

BY TIM RAMIS
MAY 2015

In 2013, Mayor Charlie Hales removed Commissioner Dan Saltzman and later appointed Commissioner Amanda Fritz as commissioner in charge of the Bureau of Development Services (“BDS”), which administers Portland’s zoning code.  The City Charter grants this power to the Mayor to ensure that bureau leadership is consistent with the Mayor’s policies.  Without objection from the Mayor, last month Commissioner Fritz advised BDS staff to reverse direction, saying, “We’ve drifted a bit too far toward approval of proposals that didn’t quite reach the bar of what we should accept.”  She also specified new tougher criteria for review of discretionary land use applications.  The change was uncharacteristically issued in a memo without any public process, such as notice and a Council hearing.  Mayor Hales’s public silence on this controversial shift has allowed speculation that he supports the new hard line policies.

The memo describes Commissioner Fritz’s goal as “raising the bar” in discretionary land use decisions to a level that “should be higher than where it has been in the past....”  It argues for consideration of antidevelopment criteria, including some that do not exist in the zoning code.  The text of some of the new denial criteria as drafted by the Commissioner are:
  • “Are they trying to squeeze too much onto the site?”
  • “Environmental resource conservation (tree preservation, streams, stormwater, etc.)”
  • “The carrying capacity of the lot/site itself, what it can reasonably handle, as well as the infrastructure and the context”
  • “Is there available on-street parking or not?”
  • “Good design and quality development”
All discretionary decisions in Portland, including conditional uses, zone changes, subdivisions, design review, and others are already subject to Council-adopted criteria embedded in the zoning code.  In some cases Fritz’s criteria partially paraphrase existing criteria, but in many instances the code criteria differ from these newly announced standards and are even at odds with them.  This change will inevitably place the BDS professional planners in a tough spot.  Staff professionals are now directed to apply new criteria that may not appear in the zoning code and recommend denial of more applications than in the past.  As Commissioner Fritz said, “It is my hope that these principles act as guides through which you consider your recommended approval or denial of an action.”
 
Guides that determine decisions are nothing short of criteria and, in Portland, we now have new ones.  These decision-making standards have not been adopted by the City Council, but Commissioner Fritz says they reflect the expectations of the current City Council members based on their 2014 land use voting records.  Thus far, no Council member has publicly said otherwise.

As of now, the combined effect of the mayoral appointment and the Fritz memo is in some respects the de facto amendment of the zoning code.  Unless the City Council as a whole takes formal action to disavow the defacto amendments, they will likely control future decision making by BDS staff and make land use permits more difficult to obtain. 

Applicants for land use approvals are well advised to help BDS staff address these criteria, whether or not they appear in the code.  Failure to do so risks putting your project in jeopardy of being denied under these new “guides.”  The cautious interpretation of the Council’s lack of comment on the memo is that silence is assent.