This is the third installment in our series exploring Portland's land use issues. For tips, resources and a general overview of land use basics, please see our first story. For more information on reading land use notices and interpreting zoning codes, please check out our second story.
Flip a coin 100 times, and 50 times it’ll come up heads. Those are good odds.
So, if someone gives you 20-1 odds, how could you not take them?
If you're developing or redeveloping property in Portland and you don't think you need to tell anyone about it, those are your odds. In other words, if you propose a plan that not only meets all the zoning requirements, but one that also dots every i and crosses every t, you can start building right away, without even having to tell your neighbors.
That might sound absurd, until you realize that nearly all proposed developments very often don’t matter to anyone but the developer. In other words, most proposals are small in scope, and you wouldn't want to be subjected to a public hearing just because your neighbor objects to the kind of wood you're using to build your backyard deck. It's the ambitious projects, like shopping centers and condos, that many residents find invasive.
But when public notices are required, they can inspire neighbors to come together to oppose a development that might threaten the livability of their neighborhood.
The Big One: Type III Procedure
At present, there are four types of land use reviews classified by the Bureau of Development Services (BDS), and each one is bound by specific guidelines and timelines imposed by the State of Oregon.
Type I, II and IV procedures, as a rule, don't generate much controversy. However, the proposals that most often lead to neighborhood consternation are those classified as Type III procedures. Here's how they work.
Type III procedures detail developments that require a lot of planning by BDS officials because such developments may greatly impact the areas in which they are proposed. In fact, they can be so complicated that BDS planners don't even rule on them. Instead, they make recommendations to public hearings officers and city council, both of whom are responsible for deciding whether a proposal passes critical muster.
So, if a project is proposed in an environmentally sensitive area, it's classified as a Type III procedure. If a developer is seeking to build a commercial space in a residential neighborhood, he or she must request a zoning change, a procedure also classified as Type III.
The Ticking Clock: The Scramble to Put Together an Argument
Once a Type III application is deemed complete by a BDS planner, the clock begins ticking and a public hearing is scheduled to be held within 51 days.
If you regularly check BDS' proposed development feed—a rather unsexy and somewhat tedious task—then you might notice the proposed development coming down the pike.
If you don’t follow that feed but own land within 400 feet of the proposed site, you will be notified of a public hearing 20 days before the hearing. You may also learn about a public hearing, where the proposal's details will be discussed, if you belong to your local neighborhood association.
And, if you're a budding neighborhood activist, this short window of time may be long enough for you to submit your comments, in writing, to BDS so that they may be considered by the hearings officer.
The best way to make your lone voice heard is to make it one of many. Use the collective voice of your neighborhood association, which historically has the experience and discipline to mount a more cogent and compelling argument against an unwanted development.
But, since most neighborhood associations generally meet only once a month, and sometimes only once every two months, your association may have to scramble to put an argument together.
Plus, your argument will only be considered if it applies to the proposal's criteria of approval. In other words, to successfully make an argument, you must demonstrate that the proposal does not meet the standards set forth by the city's zoning code.
Should the hearings officer approve the project you oppose, you have recourse, but again, the clock is ticking.
It's Been Approved. Now What?
If you want to appeal the public hearings officer's decision, you have two weeks to make your case to BDS. However, the fee to file an appeal is half the cost of the developer's original application fee. If that original fee was $12,000, that gives you just to weeks to come up with $6,000, just to make your case to city council, which hears all appeals.
This cost is yet another good reason to unite with your neighborhood association—if your appeal is filed on the association's letterhead, the fee is waived.
And if your neighborhood association is united—and motivated—you and your neighbors can begin gathering and recording data (such as traffic patterns), specific to where you live, which may bolster your argument against the proposed development.
However, there are many tips to consider—and things to avoid—when making your appeal.
Dos and Don’ts for Comments and Appeals
- Put your appeal in writing and make your case relevant to the criteria of the original approval.
- Avoid vague comments. You simply should not say, "I don't want this development in my neighborhood." You have to explain how this development may negatively impact your neighborhood.
- Don't personalize your concerns. Don't say that you're opposed to a proposed apartment complex by stating that you're not fond of renters. Instead, get the help of your neighborhood association and neighbors, who may be architects or engineers, to help you put together a convincing argument about design standards as well as parking and traffic patterns that may arise due to such a development.
- Be reasonable. Don't try to compromise by insisting a developer tend to a neighborhood's list of wishes, like parks, plazas or community gardens.
Despite all this, you should keep in mind that while your expository evidence may be submitted for consideration during an appeal, it all ultimately boils down to whether or not the proposal matches the approval criteria established in the zoning code.
Your odds of stopping a development that meets criteria aren't great. Developers who own their land enjoy the same property rights you do. But if your argument is clear, it's possible to convince city council that certain components, such as design details, should be changed.
Of course, if city council does approve the project, you can always appeal the decision to the Land Use Board of Appeals court in Salem. But that's really going to cost you because you're going to need to hire a lawyer to parse your case before the court, and there's no guarantee that the court will rule in your favor.
But don't let that get you down. The City of Portland is preparing to reexamine the zoning code as it updates its Comprehensive Plan.
Our next story in this series will take a closer look at how neighborhood organizations are working together to influence the land use process.