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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, which administers Portland鈥檚 zoning code. The city charter grants this power to the mayor to ensure that bureau leadership is consistent with the mayor鈥檚 policies.

Without objection from the mayor, Fritz last month advised BDS staff to reverse direction, saying, 鈥淲e鈥檝e drifted a bit too far toward approval of proposals that didn鈥檛 quite reach the bar of what we should accept.鈥� 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. Hales鈥� public silence on this controversial shift has allowed speculation that he supports the new hard-line policies.

The memo describes Fritz鈥檚 goal as 鈥渞aising the bar鈥� in discretionary land use decisions to a level that 鈥渟hould be higher than where it has been in the past鈥︹�� 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 Fritz are:

鈥� 鈥淎re they trying to squeeze too much onto the site?鈥�

鈥� 鈥淓nvironmental resource conservation (tree preservation, streams, stormwater, etc.)鈥�

鈥� 鈥淭he carrying capacity of the lot/site itself, what it can reasonably handle, as well as the infrastructure and the context鈥�

鈥� 鈥淚s there available on-street parking or not?鈥�

鈥� 鈥淕ood design and quality development鈥�

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鈥檚 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 Fritz said, 鈥淚t is my hope that these principles act as guides through which you consider your recommended approval or denial of an action.鈥�

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 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 de facto 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 a project in jeopardy of being denied under these new 鈥済uides.鈥� The cautious interpretation of the council鈥檚 lack of comment on the memo is that silence is assent.

Tim Ramis is an attorney and shareholder in Jordan Ramis PC. For more than 30 years, he has focused his practice on the business of land development in the region. Contact him at 503-598-5573 or [email protected].