Byers Measure 37 Claim

The Staff Report for the Measure 37 claim of Debra Byers, Thursday, 4/19/07, 2:30 p.m. at City Council, recommends restoring potential capacity for five homes instead of three on a 36,154 square foot property located in the Ashcreek neighborhood of SW Portland. But the key word is “potential”.

There are two maps that govern zoning in Portland. The Zoning Code map shows what a property is zoned for today. Development matching the standards for that zone is allowed by right. The Comprehensive Plan map shows what zoning the Council desires for a property in the future. Usually, the Comprehensive Plan map and the Zoning Code map shows the same zoning on a particular property. But some sites have a “Comprehensive Plan map designation“, showing that in the future, the City desires the zoning to change to a specified new zone. Conditions may or may not be right at any given time to change the zoning and allow different development. Owners may apply to change the zoning to match the Comprehensive Plan map, or they may choose to develop under the current zoning. If they apply to change to the Comprehensive Plan map designation, there is a land use review in which the applicant has to show adequate public services exist to serve the new zoning (and other similar approval criteria).

The Zoning for the Byers property is R10, which allows one home per 10,000 square feet of land. The Comprehensive Map designation was R7, one home per 7,000 square feet in the lot size. In the SW Community Plan, that designation was dropped, leaving both the Zoning and Comprehensive Plan map at R10. Meaning that under the new rules, the owner would have to apply for a Comprehensive Plan map amendment to get the R7 zoning, a much more difficult review than the Zone Change to the pre-approved Comprehensive Plan map designation.

The Staff Report recommends the Council re-instate the R7 Comprehensive Plan map designation that was on the Byers’ property when they purchased it in 1986.

That would allow the owner to apply to change the zoning to R7, although she would still have to apply for the change just as she would if the SW Community Plan had not been adopted. It seems to me the Staff recommendation gives the owner the rights she had when they purchased the property – no more, no less.

It also sounds to me that actually developing the property with five homes may not be feasible under the other regulations in effect when the property was purchased in 1986, and/or under environmental zone regulations enacted since. At the time of purchase, the site had a 50 foot stream protection restriction running approximately down its center. The City of Portland has consistently held that more recently-enacted environmental zone rules protect health and safety, and therefore that many are not subject to Measure 37 claims or waivers. Approving this claim is just one hurdle the owner will have to clear before five homes are built on this site.