Gunderson, LLC v. City of Portland

• Decision Date: 08 November 2012
• Docket Number: (LUBA 2010039), (LUBA 2010040), (LUBA 2010041); (CA A147803,SC S059735).
• Citation: 352 Or. 648,290 P.3d 803
• Parties: GUNDERSON, LLC, Petitioner on Review, v. CITY OF PORTLAND, Respondent on Review, and Friends of Cathedral Park Neighborhood Association, et al., Respondents below. Working Waterfront Coalition, Petitioner on Review, v. City of Portland, Respondent on Review, and Friends of Cathedral Park Neighborhood Association, et al., Respondents below. Schnitzer Steel Industries, Inc., Petitioner on Review, v. City of Portland, Respondent on Review, and Friends of Cathedral Park Neighborhood Association, et al., Respondents below.
• Court: Oregon Supreme Court

352 Or. 648

290 P.3d 803

GUNDERSON, LLC, Petitioner on Review,

v.CITY OF PORTLAND, Respondent on Review,andFriends of Cathedral Park Neighborhood Association, et al., Respondents below.

Working Waterfront Coalition, Petitioner on Review,

v.City of Portland, Respondent on Review,andFriends of Cathedral Park Neighborhood Association, et al., Respondents below.

Schnitzer Steel Industries, Inc., Petitioner on Review,

v.City of Portland, Respondent on Review,andFriends of Cathedral Park Neighborhood Association, et al., Respondents below.

(LUBA 2010039), (LUBA 2010040), (LUBA 2010041); (CA A147803; SC S059735).

Supreme Court of Oregon, En Banc.

Argued and Submitted June 12, 2012.

Decided Nov. 8, 2012.

On review from the Court of Appeals.^*

Phillip E. Grillo, Davis Wright Tremaine LLP, Portland, argued the cause and filed the joint brief for petitioners on review. With him on the joint brief were Roger A. Alfred, Davis Wright Tremaine LLP, Portland, for petitioner on review Working Waterfront Coalition; Robyn Ridler Aoyagi, Tonkon Torp LLP, Portland, for petitioner on review Gunderson, LLC; and Steven L. Pfeiffer, Perkins Coie LLP, Portland, for petitioner on review Schnitzer Steel Industries, Inc.

Linly F. Rees, Deputy City Attorney, Portland, argued the cause and filed the brief for respondent on review. With her on the brief was Kathryn S. Beaumont, Chief Deputy City Attorney, City of Portland.

Maja K. Haium, Salem, filed the brief for amicus curiae League of Oregon Cities.

LANDAU, J.

At issue in this case is the lawfulness of a portion of the City of Portland's Willamette River Greenway Plan that regulates uses of industrial and other urban land along a portion of the Willamette River known as the “North Reach.” Specifically, the issue is whether the City of Portland (city) has authority to regulate development within the North Reach. Petitioners, who represent various industrial interests within the affected area of the city's plan, contend that the law permits the city to regulate only “intensification” or “changes” to existing uses and otherwise does not permit the regulation of existing industrial or other urban uses or other changes to such uses within the North Reach. The Land Use Board of Appeals rejected that argument, and the Court of Appeals affirmed. For the reasons that follow, we likewise reject petitioners' argument and affirm the decision of the Court of Appeals.

I. BACKGROUND

A. Legislative Creation of the Willamette River Greenway

In 1973, the Oregon Legislative Assembly established the Willamette River Greenway, a corridor of protected land located along the banks of the river. The legislature found that the development and maintenance of such a greenway is necessary “to protect and preserve the natural, scenic and recreational qualities of lands along the Willamette River,” as well as “to preserve and restore historical sites, structures, facilities and objects on land along the Willamette River for public education and enjoyment[.]” ORS 390.314(1).

The legislature expressed recognition of “the need of the people of this state for existing residential, commercial and agriculturaluse of lands along the Willamette River” and also the need “to permit the continuation of existing uses of lands that are included within such greenway[.]” ORS 390.314(2)(b). At the same time, the legislature recognized the need “to limit the intensification and change in the use of such lands so that such uses shall remain, to the greatest possible degree, compatible with the preservation of the natural, scenic, historical and recreational qualities of such lands.” Id.

The legislature placed primary responsibility for the coordination of the development and maintenance of the Greenway with the State Parks and Recreation Department (department). ORS 390.314(2)(d). The legislature then charged the department, in cooperation with the local governments that have greenway lands within their boundaries, to prepare a plan for the development and management of the Greenway. ORS 390.318(1). Among other things, the plan is required to specify the boundaries of the Greenway, which must include all lands situated within 150 feet of the ordinary low-water line on each side of the Willamette River, as well as all islands, state parks, and state recreation areas located along the river. Id.

The department was required to submit the plan—either as a whole or as individual plan segments—for approval by the Land Conservation and Development Commission (LCDC or commission). ORS 390.322(1). The commission was authorized either to approve the plan, revise it, or require revision by the department or the affected local governments. Id.

B. Adoption of Goal 15

In 1975, the department, in cooperation with nine counties and other local governments along the Greenway, submitted to LCDC a preliminary greenway plan, a greenway goal, and policies for a completed greenway plan. On December 6, 1975, the commission adopted the Willamette River Greenway Program, consisting of an order adopting a Preliminary Willamette River Greenway Plan and Statewide Planning Goal 15 (Goal 15).

Goal 15 declares that “[t]he qualities of the Willamette River Greenway shall be protected, conserved, enhanced and maintained consistent with the lawful uses present on December 6, 1975[,]” the date that LCDC adopted the goal. OAR 660–015–0005; Goal 15, Paragraph A(1). It further provides that “[i]ntensification of uses, changes in uses or developments may be permitted” after that date only so long as they are consistent with, among other things, the Willamette River Greenway statute, Goal 15, and other statewide planning goals. Id. Goal 15 defines “change of use” to mean “making a different use of the land or water than that which existed on December 6, 1975.” OAR 660–015–0005; Goal 15, Paragraph K(1). A “change of use” does not include “a change of use of a building or other structure which does not substantially alter or affect the land or water upon which it is situated.” Id. Goal 15 also defines “intensification” of existing uses. That term means “any additions which increase or expand the area or amount of an existing use, or the level of activity.” OAR 660–015–0005; Goal 15, Paragraph K(3). It does not include “[m]aintenance and repair usual and necessary for the continuance of an existing use[.]” Id. Goal 15 does not define the term “developments” as it is used in the goal.

Goal 15 provides that each city and county in which the Greenway is located must incorporate portions of the Willamette River Greenway Plan into its comprehensive plan, implementing ordinances, and other implementing measures. OAR 660–015–0005; Goal 15, Paragraph E. Among other things, each comprehensive plan must designate “the uses to be permitted for the rural and urban areas of each jurisdiction,” which must be consistent with the Willamette River Greenway Plan. OAR 660–015–0005; Goal 15, Paragraph E(2).

Those comprehensive plans and implementing measures must provide for protection of agricultural lands, protection of recreational needs and adequate public access to the river, protection of significant fish and wildlife habitats, preservation of scenic qualities and viewpoints, protection of public safety, and enhancement of a “vegetative fringe” along the river. OAR 660–015–0005; Goal 15, Paragraph C(3). Goal 15 provides that developments

“shall be directed away from the river to the greatest possible degree; provided, however, lands committed to urban uses within the Greenway shall be permitted to continue as urban uses, including port, industrial, commercial and residential uses, uses pertaining to navigational requirements, water and land access needs and related facilities[.]”

OAR 660–015–0005; Goal 15, Paragraph C(3)(j).

Measures for managing uses within the Greenway include exclusive farm-use zoning of agricultural lands within the Greenway, floodplain zoning, and open-space zoning. OAR 660–015–0005; Goal 15, Paragraph F. Cities and counties are also required to “establish provisions by ordinance for the review of intensifications, changes of use or developments to ensure their compatibility with the Willamette River Greenway.” OAR 660–015–0005; Goal 15, Paragraph F(3). Those ordinances must include “[t]he review of intensification, changes of use and developments as authorized by the Comprehensive Plan and zoning ordinance to insure their compatibility with the Greenway statutes and to insure that the best possible appearance, landscaping and public access are provided.” OAR 660–015–0005; Goal 15, Paragraph F(3)(b). The review must include findings that the intensification, change of use, or development “will provide the maximum possible landscaped area, open space or vegetation between the activity and the river[.]” OAR 660–015–0005; Goal 15, Paragraph F(3)(b)(1).

C. The City of Portland's North Reach River Plan

In 1979, the City of Portland adopted its Willamette River Greenway Plan, which included amendments to the city's comprehensive plan and zoning code. LCDC acknowledged the plan in 1981, as part of its acknowledgement of the city's comprehensive plan. In 1987, the city amended the plan, which LCDC acknowledged as a post-acknowledgment plan amendment. In brief, the city's plan established Willamette River Greenway Plan boundaries and applied “greenway overlay zones” to land within the boundaries, including River Industrial, River General, and River Recreational overlays. Development within the overlay zones was required to comply with certain standards, including setbacks and landscaping. In addition, any development within a prescribed distance from the river banks was subject to a Greenway Review process.

In 2004, the city initiated a process by which it intended to update and amend its Willamette Greenway Plan. One phase of that process involved the segment of the Greenway located along the 12–mile stretch of the Willamette River from approximately the Broadway...