Michaelson v. City of Portland

• Decision Date: 27 February 2019
• Docket Number: A168278
• Citation: 296 Or.App. 248,437 P.3d 1215
• Parties: Rick MICHAELSON, Petitioner, v. CITY OF PORTLAND and Guardian Real Estate Services, LLC, Respondents. Northwest District Association, Petitioner, v. City of Portland and Guardian Real Estate Services, LLC, Respondents.
• Court: Oregon Court of Appeals

296 Or.App. 248

437 P.3d 1215

Rick MICHAELSON, Petitioner,

v.CITY OF PORTLAND and Guardian Real Estate Services, LLC, Respondents.

Northwest District Association, Petitioner,

v.City of Portland and Guardian Real Estate Services, LLC, Respondents.

A168278

Court of Appeals of Oregon.

Argued and submitted November 30, 2018.

February 27, 2019

Carrie A. Richter argued the cause for petitioners. Also on the brief was Bateman Seidel Miner Blomgren Chellis & Gram, P.C.

Timothy V. Ramis, Lake Oswego, argued the cause for respondents. Also on the brief was Lauren A. King.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

ARMSTRONG, P. J.

In this land use case, petitioners seek review of a Land Use Board of Appeals (LUBA) order affirming the City of Portland’s decision to grant design review approval and a master plan amendment for a seven-story, mixed-use building proposed by intervenor (we refer to the city and intervenor, collectively, as respondents). On review, petitioners raise three assignments of error, challenging the city’s interpretation and application of "better meets" in Portland City Code (PCC) 33.825.040 and of a master plan design guideline to the proposed project. As explained below, because we conclude that LUBA’s order was not "unlawful in substance," ORS 197.850(9)(a), we affirm.

We take the relevant facts from LUBA’s order, which the parties do not dispute on review:

"The subject property is the western half of Block 290 (Block 290 West), within the Con-Way Master Plan (CMP) area of the city’s Northwest Plan District. The site is zoned Central Employment (EX) with a Design Overlay zone. Development within the CMP is subject to the city’s code-based design review standards and guidelines, but also standards and guidelines within the CMP. Under the applicable CMP design standards, building height on Block 290 West is limited to 77 feet, except the southwest corner of Block 290 West, which is limited to 47 feet.

"The CMP encompasses 17.49 acres and includes a number of 200 by 460 square foot blocks that are generally planned under the CMP and Northwest District Plan for redevelopment to mixed uses, including high-density residential uses. The CMP calls for approximately 25 percent of the CMP area to be set aside for public open space. Some of the required public open space is to be provided on Block 290 West, which under the CMP must include a ‘publicly accessible, urban square,’ which the CMP describes as a ‘significant iconic urban place’ that is fully accessible by the public and surrounded by active retail space. A significant portion of the remainder of required open space in the CMP area will be provided by a proposed neighborhood park on the eastern half of Block 290 (Block 290 East).

"Block 290 West is bordered on the south by NW Pettygrove Street, and on the west by NW 21st Ave. On the north, Block 290 is bordered by a privately-owned street, NW Quimby Street. Under the CMP, NW Quimby Street is to be improved for open space as a ‘festival street,’ serving primarily as a pedestrian and bicycle connection. The CMP requires that development on Block 290 West include a ‘ground plane connection’ between the public square on Block 290 West and the neighborhood park to be developed on Block 290 East.

"Intervenor applied to the city for design review approval and proposed amendments to the CMP, along with five ‘modifications,’ a type of variance to CMP design standards pursuant to PCC 33.825.040, in order to develop a multi-story residential building with ground floor retail and below grade parking. The approved seven-story building is U-shaped, with an opening facing south to NW Pettygrove Street, and a proposed 16,007-square-foot public square in the middle. The southern tip of the west wing is ‘clipped,’ shortening the footprint of the west wing by 31 feet and opening up the square to the corner of NW 21st Avenue and NW Pettygrove Street. As discussed below, this clipped corner creates a small area of public open space in the southwest corner of Block 290 West that requires a modification to a CMP standard that requires the public square to have at least 100-foot dimensions on each side. The small portion of the public square is termed ‘the panhandle’ in the decision and record. In earlier designs, the southern end of the west wing had featured a ground level private space available only to the building’s residents. The design ultimately approved by the city moves this private amenity to a roof terrace on top of the west wing.

"The proposed east wing includes a breezeway at ground level to satisfy the requirement for a ‘ground plane connection’ with the neighborhood park planned for Block 290 East. Intervenor also proposed a CMP map amendment that would allow the building footprint to extend 15 feet into Block 290 East, the western 45 feet of which would be converted to a north-south, 45-foot wide pedestrian accessway connecting Block 290 to development to the north. For vehicular access to the underground parking garage, intervenor proposed access via the northwest corner of Block 290 West and the western portion of the privately owned ‘festival street,’ NW Quimby Street.

"As noted, the proposed building required five modifications or variances to applicable site-development standards, three of which are at issue in this appeal. The first modification is an increase in the maximum building height from 47 feet to 57 feet in the southwest corner of Block 290 West, to facilitate the private rooftop club house and terrace at the southern end of the west wing. The second modification is to approve the panhandle portion of the public square in the southwest corner of Block 290 West with dimensions less than 100 feet per side. The third modification is to reduce the height of the breezeway establishing the ‘ground floor connection’ between Block 290 West and Block 290 East, from 25 feet to a little over 14 feet.¹

"¹ The other two modifications not directly challenged in this appeal include (1) reducing the depth and amount of retail fronting portions of the public square, and (2) reducing the setback of the upper floors of the east wing.

"Prior to filing its application, intervenor participated in three design advice meetings held by the city’s design commission, which involved advisory review of different design concepts for the proposed development. On January 16, 2016, intervenor filed its applications, which initially proposed four smaller buildings on Block 290 West. In March 2017, intervenor modified the design to propose the single U-shaped building with a clipped corner, described above, that was ultimately approved. After holding several public hearings, the design commission approved the proposal.

"Petitioner Northwest District Association (NWDA) appealed the design commission decision to the city council, which held a hearing on October 17, 2017. On November 8, 2017, the city council issued its decision denying the appeal and affirming the design commission decision, with adoption of additional findings."

(Citation omitted.)

The city issued a detailed 46-page decision that walked through each of the applicable community design guidelines and CMP Design Guidelines, both of which apply to the project, and made explanatory findings as to how the project design met each of those guidelines. The city also separately addressed each of the five modifications to the CMP Design Standards and made explanatory findings as to why each requested modification could be allowed under PCC 33.825.040.¹

Petitioners raised seven assignments of error on review to LUBA, and LUBA affirmed the city’s decision. On review to us, petitioners raise three assignments of error to LUBA’s order. We address each of those assignments in turn.

In their first assignment of error, petitioners focus, in the abstract, on the meaning of "better meets" in PCC 33.825.040, which allows modifications to design standards if, among other things, "[t]he resulting development will better meet the applicable design guidelines." Petitioners first argue that the city’s implicit interpretation of the better-meets standard is insufficient for review and requires a remand to the city for additional explanation. Petitioners next argue that, even if the city’s implicit interpretation is sufficient, that interpretation is implausible and not entitled to deference on review.

We first conclude that the city’s decision included sufficient explanation to determine how the city was interpreting and applying the better-meets standard in PCC 33.825.040. In its decision, the city explained, with respect to each requested modification, how the overall design of the building with the modification better meets the applicable guidelines than if the design adhered to the particular design standard at issue.² Although the city did not expressly set out an "interpretation" of the better-meets standard, the city’s understanding of the meaning of that standard and how it is to be applied is readily discernible from the city’s findings and explanation. The city was not required to do more than that. See, e.g. , Green v. Douglas County , 245 Or. App. 430, 438, 263 P.3d 355 (2011) ("[T]o be sufficient, an interpretation must suffice to identify and explain in writing the decisionmaker’s understanding of the meaning of the local legislation." (Internal quotation marks omitted.)); see also Alliance for Responsible Land Use v. Deschutes County , 149 Or. App. 259, 266-67, 942 P.2d 836 (1997), rev. dismissed , 327 Or. 555, 971 P.2d 411 (1998) (holding that county’s interpretation was reviewable where the county’s findings made clear how the standard was being interpreted and applied).

We turn to petitioner’s next argument that the city’s interpretation is not plausible. We (and LUBA) must defer to the city’s interpretation of its comprehensive plan and land use regulations, unless we determine that the city’s interpretation is inconsistent with the express language,...