BY TIM RAMISThis article originally appeared in the March 11, 2016, edition of the Portland Business Journal
Most people can agree that property owners and neighbors should know with some certainty what can be built on their land or the land next door. Yet, often the allowed land use cannot be known until the completion of several months of hearings–even when the project satisfies height, density, and use limitations imposed by the zoning code. The goal of clear and predictable planning for land development has proven to be elusive, especially because zoning codes are reducing the number of permits that can be easily granted by city staff and increasing the number that are subject to discretionary land use judgments involving hearing processes. Put another way, traditional permitted uses are being overtaken by the rise of conditional uses.
Overlay ZonesIn Portland, the expansion of design districts and historic districts increases the reach of discretionary control over land uses. These districts are considered overlay zones, areas within which subjective design standards can supersede the objective zoning code provisions on height, size, and bulk. These zoning tools result in discretionary, and sometimes inconsistent, judgments regarding the size and weight of buildings of all types, even single family houses. The advantage of these regulations is scrutiny of the key details of proposed projects. The disadvantage is the lack of certainty for everyone affected by a new development, including the project owner and the immediate neighbors. Within historic districts, buyers and sellers now struggle with setting a fair price for land since the value of a site allowing 75 feet of height is far different than a site allowing only 40 feet.
Senate Bill 100Advocates for certainty in zoning see this trend as running counter to the spirit of Senate Bill 100, which mandated statewide land use planning. In 1973, the legislature passed this landmark land use planning legislation with support from environmental and building industry interests. Both groups saw benefits from the prospect that, once local comprehensive plans, zoning maps, and zoning codes were approved, everyone would have certainty in the development of communities. The adopted maps and codes were expected to provide a clear roadmap for lands that were slated for development.
Subsequent to 1973, the legislature took further action to encourage predictability and address suspected abuses rooted in unchecked discretion. One statute stopped the strategy of killing a proposal by changing the zoning map after the application had been filed. Another statute ended the practice of subjecting multifamily housing projects to discretionary criteria, which were being used to deny worthy projects that proved unpopular with neighbors. These rules provided a sense of fairness for all parties involved. Prior to these rules, it was sometimes suspected that zone changes and discretionary criteria were used to single out and prohibit specific projects for political reasons.
Design and Landmark CommissionsDespite legislative policy supporting certainty and predictability, the direction at the local government level has been trending towards expanding discretionary processes and limiting permitted uses.
At the urging of neighborhood residents, substantial areas of the City of Portland are now within historic districts. In these areas, it does not matter what height and development intensity has been specified by the City Council on the official zoning map because development is subject to discretionary approval by the seven members of the Landmarks Commission. The Commission routinely reduces height to something less than what is purportedly allowed by the zoning code. This practice, in effect, rewrites the adopted zoning regulation on a case-by-case basis. It has been criticized as subjective, but Portland City Council has not stopped the practice.
City Hall watchers will want to follow whether this policy changes now that the Mayor has appointed Dan Saltzman to lead the Bureau of Development Services, the bureau that administers the city’s development regulations. The Commissioner will be thrust into the growing debate over the appropriate level of regulatory discretion that should be exercised by the Design and Landmarks Commissions. The Landmarks Commission has stimulated the conversation by asking for resources to expand its discretionary development control over more territory. Finding the right balance between development certainty and appropriate design control is a perpetual challenge, and the tide is running against regulatory predictability.
Tim Ramis is a municipal and land use attorney at Jordan Ramis PC. He was recently named “Lawyer of the Year” for Land Use and Zoning Law in the Portland area by Best Lawyers®. You can reach Tim at 503-598-5573 or at firstname.lastname@example.org.