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Right 2 Dream Too: LUBA Says “Keep on Dreaming…”

The Central Eastside Industrial Council and other interested businesses sought LUBA review of the City of Portland’s decision that a houseless rest area and tent camp for houseless persons was a Community Service Use allowed in the General Industrial Zone (IG1 Zone). The city’s decision would have allowed the Right 2 Dream Too (“R2DToo”) Camp to relocate from downtown Portland to land near Oregon’s Museum of Science and Industry. The subject property is designated as an industrial sanctuary in the city’s Comprehensive Plan.

The proposal would allow up to 100 people to camp on-site and be within a fence made in part of vertically mounted paneled doors to provide privacy for the people within. No R2DToo employees would live on site, but 14 volunteer “Dreamers” would stay on-site indefinitely to manage the facility and provide services to the campers.

The IG1 zone does not allow any type of residential use as a permitted use, and allows only one residential use as a conditional use: Household Living on houseboats. Another residential use category, Group Living, is prohibited entirely. Under the Institutional Group uses in the city’s code is the Community Service use category, a broad category of uses that is allowed in the IG1 zone as a permitted use if under 3,000 square feet of net building area, otherwise as a conditional use. However, two types of Community Service uses – mass shelters and short-term housing of any size – are specifically prohibited in the IG1 zone.

R2DToo sought zoning confirmation to determine whether the proposed use qualified as a Community Service Use. Planning staff approved the zoning confirmation; and the Commissioner in charge of the Bureau of Planning and Sustainability, sensing the unrest among surrounding business owners, requested that the confirmation be presented to City Council for consideration – perhaps as an attempt to lock in stronger deference to the city’s interpretation of its own code under Siporen v. City of Medford, 349 Or 247 (2010). But, as LUBA saw it, city Council’s blessing was not sufficient to carry the day.

Petitioners challenged the city’s procedure in approving the zoning confirmation because the city did not provide a quasi-judicial hearing process under ORS 197.763. However, LUBA determined that

“[t]he city’s zoning confirmation decision is a zoning classification decision described in ORS 227.160(2)(b), because it accomplishes only what ORS 227.160(2)(b) authorizes: it determines the appropriate zoning classification for a proposed use, i.e., how to categorize the proposed use under the city’s land use codes, as a permitted use, conditional use, prohibited use, etc. A zoning classification decision, so limited, does not approve any development of land, even if the ultimate conclusion of the zoning classification decision is that the proposed use is a use that is permitted without further discretionary land use review.”

None of the standards that would be applied to the proposed use were actually applied by the city in reaching its decision that the use is allowable in the IG1 zone. Thus, LUBA concluded the decision was not a permit decision subject to ORS 197.763.

LUBA also disagreed with petitioners that zoning classification decisions as described in the statute are limited to ministerial decisions that do not involve the exercise of any judgment or discretion. These decisions frequently require the local government to interpret its land use regulations to determine the correct categorization of a proposed use. That interpretative task frequently will require the exercise of some legal judgment, which will necessarily render the decision a non-ministerial decision. Even where the exercise of discretion may counsel LUBA review, the test is still whether the city applies any standards to approve or deny a use. Here, no development was approved and the quasi-judicial hearing procedures need not be applied.

However, practitioners should carefully examine the concurring opinion of Referee Ryan, which identifies some concerns with the approach adopted by the majority. The concurrence suggests that the quasi-judicial hearings procedures under ORS 197.763 should be applied to this zoning determinations because those procedures apply to land use hearings before a local governing body on application for a land use decision (Referee Ryan’s concurrence provides an analysis of why the decision is quasi-judicial). In Referee Ryan’s view, once the City Council decided of its own accord to hold a hearing for the zoning determination, the quasi-judicial hearings procedures should have applied.

Notwithstanding the majority’s decision about the applicability of quasi-judicial hearing procedures, the Petitioners did appeal a final decision subject to LUBA’s jurisdiction. In addressing the merits, LUBA reiterated that the Community Service use category lists a “mass shelter” as an example of a Community Service use. While such uses are generally allowed in industrial zones under the Portland Code, mass shelters and short-term housing are expressly prohibited in industrial zones. The city’s decision concludes that the proposed tent camp use is not a mass shelter as that use is defined under the PCC.

In its analysis, LUBA concluded that the R2DToo camp was indeed a mass shelter. LUBA examined the city’s definition of mass shelter:

“A structure that contains one or more open sleeping areas, or is divided only by nonpermanent partitions, furnished with cots, floor mats, or bunks. Individual sleeping rooms are not provided. The shelter may or may not have food preparation or shower facilities. The shelter is managed by a public or non-profit agency to provide shelter, with or without a fee, on a daily basis.”

LUBA concluded that a mass shelter and the proposed tent camp appear to provide the same basic function: overnight shelter and related services for houseless persons who otherwise have no place to sleep. LUBA examined each aspect of the definition against the city’s findings and concluded it was implausible to characterize the camp as anything other than a mass shelter (see pages 33-44 of the decision for this analysis).

LUBA iced Petitioners’ cake by additionally concluding that the decision violates the comprehensive plan policies and its implementing regulations that strictly limit residential development in industrial sanctuaries in order to preserve industrial land primarily for manufacturing uses.

Further, the fact that the 14 “Dreamers” who would manage the site were allowed to stay on-site as long as they want and that some campers may exceed a 30-day stay transformed the use to a residential one that is prohibited under the city’s zoning code.

As the city continues to struggle with the houseless epidemic and search for land available for affordable house, including mass shelters, we stand witness to another aspect of the difficulties of planning for needed housing for those at all income levels.

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We regularly update clients about changes in real estate law and on industry trends. This includes briefing clients on legislative proposals in the federal tax, housing and other legal areas affecting their businesses. Staying current enables you to anticipate and prevent legal problems as well as capitalize on new developments.
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