No one doubts that land use controls periodically need to be updated. Environmental conditions, population shifts, housing needs, technologies and employment opportunities all change over time.
Comprehensive neighborhood and city-wide planning processes focused on ever-changing real-world conditions facilitate these land use control changes.
More troublesome are land use control changes said to be necessary to facilitate a particular landowner’s or developer’s proposal. Such proposals often involve relatively small parcels of land; on the surface they invariably have an immediate appeal (jobs, tax base), and they often call upon planning boards and city councils to act quickly, before some bird in the hand flies away.
However, proponents of such proposals in their zeal often fail to look at the big picture, the carefully developed language of comprehensive plans and zoning ordinances that are (for good reason) already in place.
Portland’s Planning board and City Council face such a proposal. The Elks Club and a developer want to expand UNUM’s office park zone to encompass the seven-acre Elks property on outer Congress Street that historically and currently is zoned R-2 residential. This would allow commercial office and related uses along and back from Congress Street, in what is now a solid residential neighborhood.
The board has recommended approval of the rezoning. The council was about to grant approval, but calmer voices narrowly (by a 5-4 vote) forced a 30-day delay –a last opportunity to get some hard data and to look at some issues the board seemingly dismissed.
The board ignored the fact that all of the surrounding land, on both sides of Congress Street from the Westbrook Street-Congress Street intersection to the jetport-Elks traffic light (several hundred acres) is zoned residential.
It has ignored that this zoning is in accord with the city’s Comprehensive Plan, that it has been in place for more than 30 years, and that during this period the number of residences in this portion of Stroudwater has grown from a few dozen to more than 165.
Many would regard this as a success story for rational planning and stable zoning. Many characterize a long-standing pattern of zoning as a promise to a neighborhood – a promise that has induced (and will continue to induce) investment in high-value housing in a safe and historic setting.
Finally, the Planning Board, and some councilors, seem to have it backwards. Portland has a wide (and growing) number of appropriately zoned locations that permit commercial offices and related uses. It’s housing that we need, and this need is immediate and real. We do not need more office space.
If the R-2 zoning of the Elks property is too restrictive, a Planning Board and City Council bent on pragmatic planning would and should have considered rezoning the Elks property to a less-restrictive R-3, R-5, R5A, or R-6 zone.
This approach would respect the justified reliance of the 165 homeowners who have built and improved their homes in this neighborhood; it also provides the Elks Club and developers with an increased economic return from this seven-acre property.
Looking beyond this case, when rezoning requests are put on the table by individual property owners and/or developers, planners and councilors should put the burden on these parties to show that rezoning is necessary; that changed conditions, a new opportunity, or a mistake in the existing zoning justifies their proposal.
Existing zoning provisions are entitled to a “presumption of validity” – unless and until a property owner or developer can meet the burden outlined.
The burden should not be on existing homeowners or a neighborhood to ward off random rezoning proposals, because they frequently lack the resources, the data, and/or the focus to defend existing zoning provisions. Moreover, it is not their duty to defend zoning laws the city has found to be reasonable.
It is in fact the duty of a Planning Board and City Council engaged in (and committed to) the planning process to defend an existing framework of law. When or if a property owner or developer shows this is no longer possible, a fine-tuning amendment to existing zoning (along the lines I’ve suggested) is appropriate. A board committed to the rezoning process can and should take the lead in fashioning such amendments.
Ideally, a Planning Board committed to a planning process that continuously evaluates the full range of planning data and changing urban life would offer such amendments to the council well before a crisis-driven 30-day delay is upon us.
It remains to be seen whether future Planning Boards and City Councils will embrace this approach to rezoning proposals. What is clear is that this approach is reasonable and fair. It emphasizes the planning process when dealing with rezoning proposals. If these principles are applied to the Elks Club rezoning, all parties – Elks, city government, and neighborhood – achieve a win-win-win outcome.
Orlando Delogu of Portland is emeritus professor of law at the University of Maine School of Law and a longtime public policy consultant to federal, state, and local government agencies and officials. He can be reached at email@example.com.