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Petitioners, Respondent, Intervenor

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Petitioners, Respondent, Intervenor 1!'~!t 08/06/19 .ct.::'" 0 1 BEFORE THE LAND USE BOARD OF APPEALS 2 OF THE STATE OF OREGON JI 3 4 RESTORE OREGON, BOSCO-MILLIGAN FOUNDATION/ 5 ARCHITECTURAL HERITAGE CENTER, 6 OREGON NIKKEi ENDOWMENT, 7 PORTLAND CHINATOWN HISTORY FOUNDATION/ 8 PORTLAND CHINATOWN MUSEUM, 9 and PEGGY G. MORETTI, 10 Petitioners, 11 12 vs. 13 14 CITY OF PORTLAND, 15 Respondent, 16 17 and 18 19 GUARDIAN REAL ESTATE SERVICES, LLC, 20 Intervenor-Respondent. 21 22 LUBA No. 2018-072 23 24 OSB2LAN IVON, LLC and HAITHEM TOULAN, 25 Petitioners, 26 27 vs. 28 29 CITY OF PORTLAND, 30 Respondent. 31 32 LUBA Nos. 2018-073/086/087 33 34 FINAL OPINION 35 AND ORDER 36 37 Appeal from City of Portland. 38 Page 1 1 Daniel H. Kearns, Portland, filed a petition for review and argued on behalf 2 of petitioners Restore Oregon et al. With him on the brief was Reeve Keams, PC. 3 4 E. Michael Connors, Portland, filed a petition for review and argued on 5 behalf of petitioners OSB2LAN IVON, LLC and Haithem Toulan. With him on 6 the brief was Hathaway Larson LLP. 7 8 Linly F. Rees, Chief Deputy City Attorney, City of Portland, filed a 9 response brief and argued on behalf of respondent. With her on the brief was 10 Lauren A. King, Deputy City Attorney. 11 12 Timothy V. Ramis, Portland, filed a response brief and argued on behalf 13 of intervenor-respondent. With him on the brief was Jordan Ramis PC. 14 15 RYAN, Board Chair; ZAMUDIO, Board Member, participated in the 16 decision. 17 18 RUDD, Board Member, did not participate in the decision. 19 20 REMANDED 08/06/2019 21 22 You are entitled to judicial review of this Order. Judicial review is 23 governed by the provisions of ORS 197.850. Page 2 1 Opinion by Ryan. 2 NATURE OF THE DECISION 3 In LUBA Nos. 2018-072, 2018-073 and 2018-086, petitioners Restore 4 Oregon et al. (Restore Oregon) and OSB2LAN IVON, LLC and Haithem Toulan 5 (together, OSB) appeal Ordinance 189000. In LUBA No. 2018-087, OSB appeals 6 Ordinance 189002. Ordinance 189000 and 189002, together with a third 7 ordinance (189001) that was not appealed, are part of a comprehensive 8 amendment of the city's Central City Plan, which is a part of the city's 9 comprehensive plan. The city and the parties refer to the three ordinances as 10 Central City 2035 (CC 2035). 11 REPLY BRIEF 12 OSB moves to file a reply brief to respond to respondent's response brief. 13 There is no opposition to the motion, and it is allowed. 14 FACTS 15 The challenged ordinances adopted amendments to the Central City Plan, 16 which was originally adopted in 1988 as part of the Portland Comprehensive Plan 17 (PCP). CC 2035 made a number of changes to the existing Central City Plan. 18 Petitioners in these appeals challenge, among other things, new building height 19 limits that were adopted as part of CC 203 5. 20 A. New Chinatown/Japantown Historic District 21 As relevant here, and as discussed in more detail in our resolution of 22 Restore Oregon's assignments of error, CC 2035 amended the height limits that Page 3 ' ;' 1 apply to new buildings in the New Chinatown/Japantown Historic District 2 (District), a ten square block area located west of the Willamette River and north 3 of the downtown area that is listed on the National Register of Historic Places for 4 its cultural and historical significance. 5 The District was established in 1989. The base zoning of property in the 6 District at the time it was established and today is Central Commercial Zone with 7 a downtown development overlay. At the time the District was established in 8 1989, the maximum allowed building height in the District under the Portland 9 City Code (PCC) was 350 feet plus a possible 75 feet of bonus height. New 10 development in the District is subject to discretionary Historic Resources Review 11 under PCC 33.846 and the city's adopted New Chinatown/Japantown Historic 12 Design Guidelines (Guidelines), first adopted in 2017. 1 13 CC 2035 decreased the existing height limits for four blocks on the 14 northern edge of the District, located between NW Everett and NW Glisan Street 15 and NW 5th and NW 3rd Avenue (North Blocks), from the previous limit of 425 16 feet (base 350 feet plus 75 feet of bonus height) to 200 feet of base height with 17 no bonus height available. CC 2035 also increased the height on one block in the 18 District, Block 33, located between NW Couch and NW Davis Street and NW 19 4th and NW 5th Avenue, from its previous maximum height of 100 feet to 125 1 The city asks us to take official notice of Ordinance 188623, which was enacted in 201 7 and adopted the Guidelines. There is no opposition to the city's motion, and we take official notice of the Ordinance that adopted the Guidelines. Page 4 1 feet of base height on the entire block, with an available affordable housing bonus 2 on the west half of Block 33, to allow a maximum height of up to 200 feet on the 3 west half of Block 33. Record 5566-68. Intervenor-respondent Guardian 4 Management Services LLC (Guardian) owns Block 33. 5 Restore Oregon challenges the new height limits as incompatible with the 6 PCP policies that apply in the District, and with newly adopted CC 2035 policies. 7 B. Southern Triangle 8 CC 2035 also amended the comprehensive plan and zoning map for other 9 areas of the central city, including the area that includes OSB's approximately 10 three-acre property located on the east side of the Willamette River, generally in 11 the area between the Tillikum Crossing Bridge and the Ross Island Bridge 12 (Southern Triangle). CC 2035 amended the plan and zoning map designations for 13 OSB 's property from Heavy Industrial (IH) to Central Employment (EX), with 14 design and river overlays on the entire property, and river environmental and 15 scenic overlays on a portion of the property. The EX zoning applied to OSB's 16 property prohibits residential uses. 17 CC 2035 adopted a Central City Scenic Resources Protection Plan as an 18 update to the previously adopted (in 1991) city-wide Scenic Resources Protection 19 Plan. The new area-specific plan added two scenic resources sites and adopted 20 an Economic, Social, Environmental and Energy (ESEE) analysis. As part of the 21 ESEE analysis, the city mapped and evaluated views and viewpoints within the 22 resource sites, and grouped them into rankings based on quality and quantity. A Page 5 1 view of Mt. Hood from the Tillikum Crossing bridge was identified as SW46. 2 The city's ESEE analysis determined to protect the views of Mt. Hood from 3 SW46 by limiting building height on OSB's property and some surrounding 4 properties to 60 feet, and by limiting surrounding properties with similar height 5 restrictions. Approximately two acres of OSB' s property are subject to the 60- 6 foot height limit, with one acre of OSB' s property subject to a height limit of 100 7 feet with available bonus heights of up to 250 feet. Record 656, 662. 8 In its appeal, OSB challenges these new height limits. 9 FIRST ASSIGNMENT OF ERROR (RESTORE OREGON) 10 At the outset, we note that Restore Oregon's petition for review does not 11 comply with the requirement in OAR 661-010-003 0( 4 )(d) that it include a section 12 addressing LUBA's standard of review. LUBA's standard of review of a decision 13 that amends a comprehensive plan is set out at ORS 197.835(6). LUBA is 14 required to reverse or remand the amendment if "the amendment is not in 15 compliance with the goals." Id. LUBA is also required to reverse or remand a 16 decision that amends a land use regulation if, as relevant here, "[t]he regulation 17 is not in compliance with the comprehensive plan." ORS 197.835(7)(a). 18 Because the challenged decision is a legislative rather than a quasi-judicial 19 decision, there is no generally applicable requirement that the decisions be 20 supported by findings, although the decision and record must be sufficient to 21 demonstrate that applicable criteria were applied and "required considerations 22 were indeed considered." Citizens Against Irresponsible Growth v. Metro, 179 Page 6 1 Or App 12, 16, n 6, 38 P3d 956 (2002). With respect to evidence, Statewide 2 Planning Goal 2 (Land Use Planning) requires that a decision that amends a 3 comprehensive plan or land use regulation must be supported by an adequate 4 factual base. An "adequate factual base" is equivalent to the requirement that a 5 quasi-judicial decision be supported by substantial evidence in the whole record. 6 1000 Friends of Oregon v. City ofNorth Plains, 27 Or LUBA 372, 378, aff'd, 7 130 Or App 406, 882 P2d 1130 (1994). Substantial evidence exists to support a 8 finding of fact when the record, viewed as a whole, would permit a reasonable 9 person to make that finding. Dodd v. Hood River County, 317 Or 172, 179, 855 10 P2d 608 (1993); Younger v. City ofPortland, 305 Or 346, 351-52, 752 P2d 262 11 (1988). 12 Restore Oregon argues that the city's findings in support of the 200 foot 13 maximum height on the North Blocks and the west half of Block 33 (through 14 bonus height) are inadequate to explain why the 200-foot height limit satisfies 15 PCP Policies 4.48 and 4.49, and three newly adopted provisions of CC 2035: CC 16 2035 Policies 5.19 (Historic resources and districts), and Old Town/Chinatown 17 Policies l.OT-3 (cultural assets) and 5.OT-1 (surface parking), which were first 18 adopted as part of the challenged decision.
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