A recently decided case by the Oregon Land Use Board of Appeals (“LUBA”) says a lot about our land use system – perhaps too much. Richmond Neighbors for Responsible Growth v. City of Portland (February 20, 2013) started out as a challenge to project design and the parking requirements (or lack of such requirements) for a multi-family project at SE 37th and Division which was zoned for the multi-family use. Some neighbors formed Richmond Neighbors for Responsible Growth (RNRG) to object to the project. RNRG wanted input into the design of the site and structure to assure the “livability” and “character” of the area. Some neighbors also wanted fewer apartments. The City treated the application as one in which it had no discretion but to grant the application for 81 units. This development was one of several multi-family developments now proposed in Southeast Portland.
The City moved to dismiss RNRG’s case, contending that, under state law, LUBA could not review building permit applications based on clear and objective standards. LUBA, however, determined that not all the standards were clear and objective, and there was discretion that could be used to determine the height of this apartment building on a site with two different zoning designations. That discretion in determining the height led LUBA last November to conclude that it had jurisdiction to hear the case.
Now that their case could be heard, RNRG was faced with how to make that case. The final order doesn’t mention any challenges to the City’s lack of required onsite parking, as that standard involved no discretion. The one thing RNRG could challenge was the City’s interpretation of an obscure requirement that the “main entrance” for each tenant space be within five feet of the façade facing Division Street and, in fact, face that street. LUBA rejected the City’s interpretation of this requirement that it only applied to non-residential uses as contrary to the text of the regulation. Because the application would have to be revised substantially to meet the City’s code, LUBA reversed (rather than remanded) the City’s decision.
Let’s take a step back and consider this case against the stated RNRG concerns. While it is possible that the location of the entrance may have been one concern of the Association, the LUBA decision did not deal with other stated concerns over density, design, or parking. The proxy outcome here allows the parties to fight another day, when there may be different regulations and different regulators. That may well be what RNRG wanted.
Portland is reconsidering its parking policy and the Planning and Sustainability Commission will make recommendations to the City Council which will likely increase the minimum parking standards, even in those areas which are well served by public transit. There are, however, a number of difficult questions to be faced, such as:
1. Are parking and design issues raised a proxy for other concerns and a mask to fight against affordable and rental housing?
2. How does the City address the Americans with Disabilities Act where multi-family buildings are allowed with no parking?
3. To what extent is there a parking problem in multifamily areas of Portland?
4. What happens when parking requirements are lessened or done away with because of transit availability and that availability is itself reduced or done away with or does not equate to anticipated ridership?
5. What are the effects of discretionary design standards on affordable housing?
(State law currently prohibits discretionary design standards for “needed housing,” which includes most housing in Portland.)
The City Council will review the Commission’s recommendations and make any changes it feels are needed to its code. However under the relatively short time frame it has provided to deal with these amendments, it is unlikely that these issues will be resolved. Until then, we can expect the proxy war over land uses in residential neighborhoods like Richmond to continue.
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