On January 21st, LUBA decided multiple challenges to the Portland North Reach River Plan (NRRP) and, in doing so, handed the City its worst planning defeat in almost 20 years.
The NRRP was an ambitious plan, covering a 12-mile stretch of the Willamette River from the Broadway Bridge to its confluence with the Columbia River and included much of the City’s heavy industrial areas, some remnant natural areas and some superfund sites. Among other things, the NRRP would have applied new environmental overlay districts and vegetation enhancement requirements on allowed industrial uses, rezoned 42 acres from industrial to mixed employment, and adopted a new natural resource inventory. Petitioners were generally industrial landowners who challenged these plan and regulatory policies.
LUBA found fault with the City’s new planning and regulatory provisions in four principal areas. First, Goal 9 (Economy of the State) requires the effects of these efforts do not reduce the supply of industrial lands. The City had adopted a River Environmental (“RE”) Overlay Zone and Vegetative Enhancement (“VE”) regulatory requirements that Petitioners contended reduced the amount of industrial lands by requiring either onsite or offsite mitigation. Petitioners contended the onsite mitigation would reduce the amount of available industrial lands and offsite mitigation sites were also zoned for industrial uses, so the amount of such lands would also be reduced. LUBA said the City must quantify any loss of industrial lands under the RE and VE provisions of the new regime and evaluate the impact of that regime on the City’s needed industrial lands analysis.
Second, LUBA faulted the City for relying on base data contained in an 2009 Economic Opportunities Analysis (“EOA”) that had not been incorporated into the City’s comprehensive plan, stating that the EOA could not be used to determine how much land was available for industrial use unless it was in the plan. The City also had a 1989 EOA in its plan; however, that analysis was not relied upon and contained no projections for such lands in 2010.
Third, the City replanned and rezoned the 42-acre McCormick & Baxter property from Industrial Sanctuary to Mixed Use Employment. Current law regarding such rezoning requires such action to be “consistent with” the most recent EOA. The 2009 EOA could not be used because it was not in the Plan and the 1989 EOA did not have a baseline with which the rezoning could be shown to be consistent.
Finally, LUBA found inconsistency with certain unamended policies of the City’s plan, including the Guilds Lake Industrial Sanctuary Plan, as there was no reconciliation of the two plans demonstrated. Nor was there a showing that a policy that there be no impact on the City’s industrial land supply met, in the absence of such a showing in plan or supporting materials.
The result is a calamity for the City. The industrial and manufacturing community believes the City will attempt to get to the same or similar result in future proceedings and may dig in for the long haul. That community cannot make long-term investments until it knows the rules under which it must operate. The nearby neighborhoods and the environmental community are frustrated because its aspirations for a more verdant shoreline and repair of the environmental damage done in Portland Harbor over the years. And the City cannot hope to attract new business to the area until it has a settled regime in place with which to deal with commerce and industry. It is in the interest of all to come together and settle upon a planning and land use regulatory scheme under which the business community may operate in relative certainty.
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