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The Department of Homeland Security and Immigration and Customs Enforcement Gets a New Home on Portland's South Waterfront

On October 19, 2011 the Portland City Council approved a conditional use review that was the last land use hurdle to the offices of the Department of Homeland Security Administration (HSA) and its Immigration and Customs Enforcement Division’s (ICE) move to the South Waterfront. The decision was not appealed.

We represented the owner/developer of the property, which had submitted the successful proposal to provide new HSA/ICE office space in the South Waterfront. The proposal was to renovate and expand an existing underutilized building at the corner of Macadam and Bancroft in the South Waterfront district. The new facility will be 114,279 s.f. and house over 130 HSA and ICE employees.

The land use process began before the City’s Design Commission, with design review for the renovated/expanded building, which was considered a “major remodel.” As part of that process the issue of whether the facility was permitted in the South Waterfront was raised. There were neighborhood concerns that the ICE facility was not compatible with existing and planned South Waterfront improvements. Staff advised that the facility was an allowed use in the CXd zone, and that the Design Commission lacked authority to address whether the use was allowed. On appeal to the City Council of the Design Commission’s approval of the proposal, the issue of whether the use was allowed was raised with the focus on a small portion of the new facility where the detainees would be housed during the day as they were being processed. This area of the facility was approximately 5,198 s.f. and consisted of four holding rooms and support space used in holding and processing detainees. No detainee would be housed in the facility overnight, but, rather, detainees brought in during the day would be held in this area before being transported to the ICE detention facility in Tacoma every afternoon.

Notwithstanding, the opponents argued before the City Council that the holding/processing area of the new facility was a “jail” and not a permitted use in the South Waterfront. The Council sustained the Design Commission’s approval of the building, but concluded that the portion of the building housing the holding and processing area was a “detention facility” under the City’s Code and, as such, was permitted only pursuant to a Type III “conditional use” review. Although the holding/processing area of the facility did not meet the Code’s definition of a detention facility, the Council concluded “its features more closely match the code’s examples and characteristics of the detention facility use category.” The Council sustained the Design Commission’s approval of the design but determined the holding/processing area of the building could not be built without conditional use approval as a “detention facility.” In requiring the pursuit of conditional use approval, it was clear the Council wanted to give the public an opportunity to learn more about the project and a platform to express their opinion.

The owner then began the conditional use process – with the salient approval criteria being whether the holding/processing areas “will not pose an unreasonable safety threat to nearby uses and residents.” The conditional use process is first decided by the Hearings Officer. At a neighborhood meeting, prior to the hearing before the Hearings Officer, an ICE representative disclosed that on a very few occasions, ICE might release detainees directly from the new building rather than transport them to the Tacoma detention facility. The owner/developer was not aware of this practice until it was mentioned at the neighborhood meeting.

As a result of this disclosure, the opponents’ concern focused on whether public safety would be compromised by the direct release of detainees – i.e., those detainees would be released into the South Waterfront community. The specter of such releases was heightened because the facility will be adjacent to a charter school. The concern was raised despite knowing that any detainee directly released from the facility would have been well vetted to determine he or she did not pose a risk to public safety.

Before the Hearings Officer, the applicant presented evidence and information that the direct release of detainees from the facility was not common, that those detainees who were directly released did not pose a threat to public safety, and that ICE had been directly releasing detainees from its existing facility elsewhere in downtown Portland for many years without incident.

Although there was no information or evidence presented to the Hearings Officer that would support a conclusion that the direct release of detainees would pose a public safety threat to nearby residents and uses, the Hearings Officer opined that to find such releases would not constitute a public safety threat, he needed specific confirmation by the Portland Police Bureau. (The PPB did provide a memo advising the new facility would not pose a public safety threat – but the memo did not say specifically that the direct release of detainees from the facility would not constitute a public safety threat.) Notwithstanding the only evidence presented was that there would be no public safety threat, in response to the opponents’ stated concerns that there might be a pubic safety threat, the Hearings Officer concluded he could not find there would be no public safety threat, and therefore denied the conditional use application. Inexplicably, the Hearings Officer rationalized that, without the PPB specifically advising that the direct release of detainees would not pose a public safety threat, and notwithstanding evidence in the record showing no public safety threat would result, he had to conclude the holding/processing area posed an unreasonable public safety threat to nearby uses and residents.

The Hearings Officer further opined that if the City Council on appeal were to want to approve the conditional use, it should consider imposing certain conditions, e.g., require the PPB to determine the ICE direct release criteria to be acceptable and thereafter to annually certify that ICE was in compliance with such criteria. Apparently, the Hearings Officer did not see any issues with the practicality (let alone the dynamics) of having a local law enforcement agency approve and “police” the practice and procedures of a federal law enforcement agency.

A dilemma resulting from the Hearings Officer’s decision was that the appeal to the Council is “on the record.” The specific evidence the Hearings Officer determined was necessary, i.e., the PPB specifically advising the direct release of detainees from the facility did not pose a threat, was not in the record (although the PPB did have in the record a memo advising that the ICE facility, as proposed, would not pose an unreasonable public safety threat).

On appeal to the Council, the applicant did present a further PPB memo that “clarified” the earlier PPB memo to advise the Council that when it previously advised the facility would not pose an unreasonable public safety threat, that that included the direct release of detainees. The applicant also provided in the appeal to the Council written ICE protocols for the direct release of detainees. These protocols were submitted as proposed conditions to the approval. Notwithstanding, opponents objected to this “new evidence.” In response to the opponents’ complaint of “new evidence,” the Council opened the record to allow any party to submit evidence in response to the “new evidence.” The opponents submitted nothing to contradict the finding that the ICE facility’s holding/processing area and the direct release of detainees from time to time did not pose an unreasonable public safety threat.

The Council approved the conditional use application 5 - 0.

The effort to secure conditional use approval of the holding and processing areas of the new ICE facility, under the guise of that area being a “detention facility” did provide citizens an opportunity to learn more about the HSA/ICE facility and express their opinions. However, it was a process that probably did not change anyone’s mind. The opponents continued to use the conditional use process as a platform to express their unwavering opposition to HSA and ICE moving to the South Waterfront. The applicant did agree to some conditions for the operation of the holding/ processing area – but those conditions are for the most part SOP for ICE. Further, as a result of going through the process, there is significant delay to the project and additional costs. Notwithstanding the Council’s best intentions for requiring the conditional use process, it is doubtful that anyone involved walked away feeling satisfied.

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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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