New Environmental Regulations Pending for Portland

Following local land use regulations as they are being developed is a bit like chasing feathers in a windstorm -- as soon as you get close to grasping one, the wind shifts and sends your feather off in a whole new direction. This analogy comes to mind in light of new a set of regulations, known as "Healthy Portland Streams," proposed by the city of Portland. The Healthy Portland Streams project is Portland's effort to comply with regional, state, and federal environmental laws by improving the water quality in city watersheds. In this instance, "improving watersheds" means revising the city's existing environmental zoning boundaries and adding a layer of zoning regulation.

Portland currently has two environmental overlay zones--the "protection" zone and the "conservation" zone. These overlay zones are designed to implement state land use goals for the conservation of open space and the protection of natural and scenic resources. Generally, the protection zone applies to land next to the protected stream or wetland, and the conservation zone protects an additional area outside the protection zone.

The Healthy Portland Streams project does two significant things. First, it significantly expands the area subject to the existing protection and conservation zones. It also adds a third zone--the "transition zone." As a result, the total amount of land subject to stricter environmental regulation will increase by 5,100 acres and encompass several thousand individual lots.

Second, the project revises the current regulations for development and land division that apply in each zone. Under both current and the proposed new regulations, development is prohibited on any lot in a protection zone. Under existing regulations, however, the footprint of an existing structure may be expanded as long as it does not come within 50 feet of the waterway. Under the proposed new regulation, the footprint of an existing structure is not allowed to expand at all. Also, while most existing structures may be replaced if lost or damaged in a fire or other event, under the new regulations some structures, such as retaining walls and any structure in a floodway, may not be replaced if they are ever damaged or otherwise need replacement.

The boundaries for many of the conservation-zoned areas are larger in the Healthy Portland Streams project. Land within the conservation zone of land-division proposals must be placed within a common open-space tract or a conservation easement.

The transition zone will add increased setbacks beyond environmentally zoned areas to property never before subject to such regulations, including tree removal and replacement requirements and limits on impermeable surfaces (e.g., driveways). The city's long-standing practice has been to treat the first 25 feet inside the conservation zone as a transition zone, with relaxed regulation. Under the new regulations, the transition zone is an additional area outside the conservation zone and is often more than 25 feet wide.

The restrictions in the proposed Healthy Portland Streams project represent a substantial increase in the level of environmental regulation of private property.

The project is now out for public review, and you are encouraged to look at how it may affect your property. The methods that the city used to draw the boundaries of each environmental zone were so broad that in some cases the regulations will apply to properties of questionable environmental sensitivity. In some cases, entire lots will be subject to the most restrictive level of regulation. These lots will become completely unbuildable.

It is not safe to assume that your property is not affected by this project--even some properties that are located a substantial distance from any natural resource are slated for the new environmental zoning.