Restore Or. v. City of Portland

Decision Date23 January 2020
Docket NumberA172000
Citation301 Or.App. 769,458 P.3d 703
Parties RESTORE OREGON, Bosco-Milligan Foundation/Architectural Heritage Center, Oregon Nikkei Endowment, Portland Chinatown History Foundation/Portland Chinatown Museum, and Peggy G. Moretti, Respondents Cross-Petitioners, v. CITY OF PORTLAND, Respondent below Cross-Respondent, and Guardian Real Estate Services, LLC, Petitioner Cross-Respondent. OSB2LAN IVON, LLC and Haithem Toulan, Petitioners, v. City of Portland, Respondent.
CourtOregon Court of Appeals

E. Michael Connors, Portland, argued the cause for petitioners. Also on the brief was Hathaway Larson LLP.

Timothy V. Ramis, Lake Oswego, argued the cause and filed the brief for petitioner-cross-respondent.

Daniel H. Kearns, Portland, argued the cause for respondents-cross-petitioners. Also on the brief was Reeve Kearns, PC.

Linly F. Rees argued the cause for respondent-cross-respondent. Also on the brief was Lauren A. King.

Kenneth P. Dobson filed the brief amicus curiae for Arbor Lodge Neighborhood Association, Downtown Neighborhood Association, Irvington Neighborhood Association, King Neighborhood Association, Laurelhurst Neighborhood Association, Northwest District Association, Pearl District Neighborhood, and Pearl Neighbors for Integrity in Design.

Before Ortega, Presiding Judge, and James, Judge, and Mooney, Judge.

ORTEGA, P. J.

This case is on judicial review from a Land Use Board of Appeals (LUBA) order addressing the City of Portland’s (city) Central City 2035 Plan (CC2035). To enact parts of CC2035, the city adopted Ordinance 189000 and Ordinance 189002. Those ordinances, among other things, established new building height limits within the 10-block area of New Chinatown/Japantown Historic District (the District) and, to protect a scenic view of Mt. Hood, established new building height limits in an area on the east side of the Willamette River between the Tilikum Crossing Bridge and the Ross Island Bridge (the Southern Triangle). Petitioners OSB2LAN IVON, LLC and Haithem Toulan (OSB), owners of property in the Southern Triangle, and cross-petitioners Restore Oregon1 appealed the city’s decision to LUBA, and petitioner Guardian Real Estate Services, LLC (Guardian), which owns property in the District, intervened. LUBA affirmed all of the parties’ assignments of error, except for one. With respect to one of Restore Oregon’s assignments of error, LUBA remanded Ordinance 189000 for the city to adopt findings that explain how the new height limits in the District comply with Portland Comprehensive Plan (PCP) Policy 4.48.

On review to this court, Guardian, Restore Oregon, and OSB each assign error to different parts of LUBA’s order. Guardian argues that LUBA erred in remanding Ordinance 189000. Restore Oregon argues that LUBA erred in rejecting its assignment of error that the city failed to comply with the PCP citizen involvement program goals. OSB argues that LUBA erred in approving the Economic, Social, Environmental, and Energy (ESEE) analysis the city prepared to support the building height limits in the Southern Triangle. We review LUBA’s order to determine if it is "unlawful in substance or procedure," ORS 197.850 (9)(a). Under that standard, we conclude that LUBA did not err with respect to the disparate issues raised by petitioners and cross-petitioners. Thus, we affirm.

I. BACKGROUND FACTS

We take the following background facts from LUBA’s order, which the parties do not dispute.

"The challenged ordinances [189000 and 189002] adopted amendments to the Central City Plan, which was originally adopted in 1988 as part of the Portland Comprehensive Plan (PCP). CC 2035 made a number of changes to the existing Central City Plan. * * *
"A. New Chinatown/Japantown Historic District
"As relevant here, * * * CC 2035 amended the height limits that apply to new buildings in the New Chinatown/Japantown Historic District (District), a ten square block area located west of the Willamette River and north of the downtown area that is listed on the National Register of Historic Places for its cultural and historical significance.
"The District was established in 1989. The base zoning of property in the District at the time it was established and today is Central Commercial Zone with a downtown development overlay. At the time the District was established in 1989, the maximum allowed building height in the District under the Portland City Code (PCC) was 350 feet plus a possible 75 feet of bonus height. New development in the District is subject to discretionary Historic Resources Review under PCC 33.846 and the city’s adopted New Chinatown/Japantown Historic Design Guidelines (Guidelines), first adopted in 2017.
"CC 2035 decreased the existing height limits for four blocks on the northern edge of the District, located between NW Everett and NW Glisan Street and NW 5th and NW 3rd Avenue (North Blocks), from the previous limit of 425 feet (base 350 feet plus 75 feet of bonus height) to 200 feet of base height with no bonus height available. CC 2035 also increased the height on one block in the District, Block 33, located between NW Couch and NW Davis Street and NW 4th and NW 5th Avenue, from its previous maximum height of 100 feet to 125 feet of base height on the entire block, with an available affordable housing bonus on the west half of Block 33, to allow a maximum height of up to 200 feet on the west half of Block 33. [Guardian] owns Block 33.
"* * * * *
"B. Southern Triangle
"CC 2035 also amended the comprehensive plan and zoning map for other areas of the central city, including the area that includes OSB’s approximately three-acre property located on the east side of the Willamette River, generally in the area between the Tilikum Crossing Bridge and the Ross Island Bridge (Southern Triangle). CC 2035 amended the plan and zoning map designations for OSB’s property from Heavy Industrial (IH) to Central Employment (EX), with design and river overlays on the entire property, and river environmental and scenic overlays on a portion of the property. The EX zoning applied to OSB’s property prohibits residential uses.
"CC 2035 adopted a Central City Scenic Resources Protection Plan as an update to the previously adopted (in 1991) city-wide Scenic Resources Protection Plan. The new area-specific plan added two scenic resources sites and adopted an Economic, Social, Environmental and Energy (ESEE) analysis. As part of the ESEE analysis, the city mapped and evaluated views and viewpoints within the resource sites, and grouped them into rankings based on quality and quantity. A view of Mt. Hood from the Tilikum Crossing bridge was identified as SW46. The city’s ESEE analysis determined to protect the views of Mt. Hood from SW46 by limiting building height on OSB’s property and some surrounding properties to 60 feet, and by limiting surrounding properties with similar height restrictions. Approximately two acres of OSB’s property are subject to the 60-foot height limit, with one acre of OSB’s property subject to a height limit of 100 feet with available bonus heights of up to 250 feet."

(Boldface in original; footnote and record citations omitted.)

Restore Oregon challenged Ordinance 189000. As relevant here, Restore Oregon argued that the city’s findings were inadequate to explain how the new height limits in the District satisfied PCP Policy 4.48. Restore Oregon also argued, in a second assignment of error, that the city failed to comply with the PCP citizen involvement program goals. Guardian intervened in support of Ordinance 189000. LUBA determined that the city’s findings were inadequate with respect to Policy 4.48 and remanded Ordinance 189000 on that basis. LUBA rejected Restore Oregon’s second assignment of error.

OSB challenged both Ordinance 189000 and Ordinance 189002. As relevant here, OSB challenged the city’s ESEE analysis, arguing that it failed to comply with Statewide Planning Goal 5 and its implementing regulations by using an inappropriate "area-wide" analysis, by using different building assumptions in the Southern Triangle as compared to other areas, and by failing to take into consideration evidence OSB had submitted about the development constraints on its property. LUBA rejected all of OSB’s arguments.

Guardian, Restore Oregon, and OSB have all sought review of different aspects of LUBA’s order. We address each of their assignments of error below, reviewing to determine if LUBA’s order is "unlawful in substance or procedure," ORS 197.850(9)(a). We also discuss in more detail the city’s actions and LUBA’s order, as necessary to understand the disparate challenges the petitioners and cross-petitioners raise on review.

II. ANALYSIS
A. The District New Building Height Limits

We first address Guardian’s petition and Restore Oregon’s cross-petition, both of which challenge portions of LUBA’s order relating to the new height limits in the District. With respect to those petitions, we start with Guardian’s challenge to LUBA’s remand of Ordinance 189000 for the city to adopt additional findings to comply with Policy 4.48.

1. PCP Policy 4.48

To provide context for Guardian’s challenge, we set out a fuller discussion of LUBA’s order with respect to its remand of Ordinance 189000.

Because CC2035 includes a legislative amendment to the PCP, the city was required to find that the amendment is "consistent with the goals and policies of the Comprehensive Plan, Metro’s Urban Growth Management Functional Plan, the Statewide Planning Goals, and any relevant area plans adopted by the City Council." PCC 33.810.050(B). At LUBA, Restore Oregon argued that the city had failed to make adequate findings, and failed to develop an "adequate factual base" as required by Statewide Planning Goal 2,2 that demonstrated that the city had complied with, among other PCP policies, Policy 4.48. That policy provides:

"Policy 4.48, Continuity with established patterns. Encourage development that fills in vacant and underutilized
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