The City of Portland Bureaus of Development Services and Sustainable Development proposed a series of incentives for the development of green energy technologies or “green bundle” within the City back in July of 2009. This “green bundle” was part of a number of other technical amendments to the City Zoning Code known as RICAP 5. The green amendments included exempting eco-roofs from design review, setting standards for the location of water cisterns and wind turbines and exempting roof-mounted solar panels from design review in non-historic areas.
Before adoption of RICAP 5, the installation of a roof-mounted solar array in historic districts required discretionary review by either city staff or the Portland Historic Landmarks Commission (PHLC) and the application fee for such review varied depending on the installation cost from between $503 to $4,433. In conservation districts, rather than being labeled as “mechanical equipment” and subject to screening, solar installs were classified by building permit staff interpretation as “solar heating panels” and thus exempt from review. After adoption of RICAP 5, the installation of solar panels in both districts on flat roofs with a parapet was exempted from discretionary review and was thus no longer subject to the fee. Similarly, panels on sloped roofs were allowed without review or fee so long as the panels faced rear property lines and were not visible from adjacent public streets.
At nearly the same time of the adoption of RICAP 5, a new development review fee schedule was adopted. The schedule increased the review costs across the board to cover the lack of new construction applications that had once provided a cushion offsetting application fees for minor improvements such as residential utility installations. Where panels were visible on sloped roofs from streets, staff review was required and subject to the new “pay to play” fee schedule; a review fee of $1,300 was imposed. In keeping with the original intent, this was the lowest fee the Bureaus could offer for the required land use review process and still charge only $1 for the related building permit fee.
Throughout the fall of 2009, the Planning Commission held a number of public hearings where RICAP 5 was considered. The PHLC was briefed on the issues during two meetings and provided input relating to the impacts on historic resources. During these hearings, the PHLC noted a dearth of solar proposals on historic resources, making it difficult to identify clear and objective conditions where solar panels might be allowed on street-facing views without compromising the integrity of the district. Notwithstanding the City’s mailed and published notice of the green bundle amendments, not a single resident or industry stakeholder testified before the PHLC. Given the lack of evidence and the lack of public concern over impacts of limiting solar in historic or conservation districts, the PHLC concluded that the most appropriate course was to require review of proposed installations that would be visible from the street, because of the potential impact on neighboring historic resources or the integrity of the overall district. This would generate a record that could inform and facilitate future codification needs.
After endorsement by the Planning Commission and the PHLC, the City Council held two hearings in February and March 2010. Again, although notices of these hearings were well published, no concerns were raised about requiring review on street-facing facades in historic and conservation districts. Solar industry stakeholders did testify before the Council raising concerns about panel location limits imposed as part of fire safety but were silent regarding review for panels on front facades. RICAP 5 was adopted in March without fanfare.
Now a number of homeowners in conservation districts as well as the solar industry stakeholders have convinced the Mayor that the matter should be re-opened in order to restore the initially-proposed full exemption for solar panels from the city’s historic design review process. The Mayor has agreed by asking that additional funds be dedicated to revisit this issue in the 2011 budget cycle.
The number of structures in historic and conservation districts affected by the solar regulations in RICAP 5 is 4.4% of all of the structures within the City. Conservation districts compromise only 1.6% of the lands within the City. Neighborhoods that have been recognized for their historic value are a key part of Portland’s unique character and should be a key component to the City’s sustainability objectives. Historic and conservation districts are established not only to preserve the existing historic resources but also to limit new construction or additions that are out of character with and detract from existing historic resources. Property owners in conservation and historic districts enjoy a high degree of livability and increased property values by agreeing to be mutually bound by these reciprocal design limitations. Photovoltaic solar arrays are highly reflective, sit above the roof line and are so much larger than other types of utility installations such as satellite dishes that it is easy to see that they could undermine the district quality as a whole. Although keeping historic resources relevant and usable given today’s technological advances is essential, property owners should be protected rather than forced to accept solar arrays that visually compromise the District.
What is also clear is that the objectors are primarily coming from conservation districts rather than historic districts and except for solar panels, the design standards regulating the two district types are different. If additional money is to be put toward studying this issue further, the first step should be to inventory the resources in conservation and historic districts to understand which districts retain substantial historic integrity, where solar regulations would need to be the strongest, and where such historic character is the weakest, where broadening the review may make sense. Without such an inventory, the City will be ill-equipped to evaluate and revisit this issue.
Edward J. Sullivan has specialized in land use law for over 40 years and is an owner in the Portland Office of Garvey Schubert Barer. Mr. Sullivan is a Past Chair of the State and Local Government Law Section of the American Bar Association and may be reached at 503-228-3939 or at firstname.lastname@example.org.
Carrie A. Richter is an owner specializing in land use and municipal law in the Portland office of Garvey Schubert Barer. Ms. Richter is the Vice Chair of the Portland Historic Landmarks Commission and Chair-Elect of the Planning and Law Division of the American Planning Association and may be reached at 503-228-3939 or at email@example.com.
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