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Before the Land Use Board of Appeals of the State of Oregon

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Before the Land Use Board of Appeals of the State of Oregon BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON BEAUMONT-WILSHIRE NEIGHBORS FOR RESPONSIBLE GROWTH,RONI RICHEY, MARSHA GLEASON, JOHN GOLDEN and MARGARET DAVIS, LUBA No. 2013-031. Petitioners, v. CITY OF PORTLAND, Respondent, and VWR DEVELOPMENT LLC, Intervenor-Respondent PETITION FOR REVIEW Ty K. Wyman, OSB #925083 DUNN CARNEY ALLEN HIGGINS &TONGUE LLP 851 S.W. Sixth Avenue -Suite 1500 Portland, OR 97204 Telephone:(503) 224-6440 of Attorneys for Petitioners Kathryn S. Beaumont, OSB #800146 Linly Rees, OSB #94509 Office of City Attorney 1221 SW Fourth Avenue, #430 Portland, OR 97204 Telephone:(503) 823 -4047 of Attorneys for Respondent Michael C. Robinson, OSB #910909 Perkins Coie LLP 1120 NW Couch, 10th Floor Portland, OR 97209 Telephone: (503)727 -2000 of Attorneys for Intervenor-Respondent CONTENTS I STANDING.........................................................................................................................1 A. The Decision is a "Land Use Decision." .................................................................1 B. The Decision Adversely Affects Petitioners.............................. ..............................3 C. Petitioners Timely Filed the Notice of Intent to Appeal............ ..............................3 II STATEMENTOF THE CASE.............................................................. ..............................4 A. Nature of Decision and Relief Sought....................................... ..............................4 B. Summary of Argument.............................................................. ..............................4 C. Summary of Material Facts........................................................ ..............................4 JURISDICTION..................................................................................................................5 ASSIGNMENTS OF ERROR .............................................................................................5 A. Assignment of Error No. 1 .......................................................................................5 B. Assignment of Error No. 2........................................................ .............................10 C. Assignment of Error No. 3........................................................ .............................12 D. Assignment of Error No. 4........................................................ .............................13 11 CONCLUSION..................................................................................................................15 INDEX TO APPENDIX Appendix A: Decision Appendix B: Declarations of Petitioners Appendix C: PCC 33.266.110 Appendix D: Ordinance No. 185974 Appendix E: SWMM Section 2.3.3, Facility Design Criteria - Drywall Appendix F: Comprehensive Plan Goal 8 Appendix G: Portion of City's 2008 Comprehensive Plan Assessment Appendix H: PCC 33.130.215.B and Table 130-4 i TABLE OF AUTHORITIES Pages) CASES Angius v. Clean Water Services, 50 Or LUBA 154( 2005)............................................................................. .............................11 Angius v. Washington County, 35 Or LUBA 462( 1999).............................................................................. ..............................9 Farrell v. Jackson County, 39 Or LUBA 149( 2000).............................................................................. ..............................3 Gagnier v. City of Gladstone, 38 Or LUBA 858( 2000)........................................................................... .............................7, 8 Kerns Neighbors v. City ofPortland, 2013 WL 785677(CUBA No. 2012-085).................................................... ..............................2 Richmond Neighbors v. City ofPortland, 2013 WL 785673(CUBA No. 2012-061)................................................. .............................2,9 Soares v. City ofCorvallis, 56 Or CUBA 551( 2008)............................................................................. .............................11 Tirumali v. City ofPortland, 169 Or App 241, 7 Pad 761( 2000).............................................................. ..............................2 Tirumali v. City ofPortland, 37 Or CUBA 859( 2000).............................................................................. ..............................2 Von Clemm v. City ofPortland, 2012 WL 6018047 ...................................................................................................................11 STATUTES ORS92.044........................................................................................................ ..............................1 ORS197.015(10)(a)......................................................................:................. .............................1, 2 ORS197.015(10)(b) ........................................................................................................................2 ORS 197.015(10)~b)~A)&(B)............................................................................ ..............................1 ORS197.015(11)............................................................................................... ..............................1 ORS197.825(1)................................................................................................. ..............................5 ORS197.830(3).............................................................................................. .............................1, 3 ii ORS227.178(3)................................................................................................. ..............................7 ORS227.178(3)(a)............................................................................................. ..............................6 ORS455.030...................................................................................................... ..............................6 ORS455.040(1)................................................................................................. ..............................6 OTHER AUTHORITIES OAR661-010-0021(1)....................................................................................... ..............................4 OAR661-010-0030(4)....................................................................................... ..............................1 OAR661-010-0071 ...........................................................................................................10, 12, 13 OAR661-010-0071(1)....................................................................................... ..............................5 OAR661-010-0071(2)....................................................................................... ..............................5 OAR661-0 l 0-0071(2)(b)................................................................................. .............................10 OAR918 ..........................................................................................................................................6 196 Or. App. at 246............................................................................................ ..............................2 iii 1 I. STANDING 2 This appeal relates to City of Portland Bureau of Development Services( "BDS") 3 Casefile No.2012-181319-REV-02-CO. The Record identifies about 51 pages of 4 construction drawings and plans (R. 10-60) as "approved plans." Presumably referring to 5 approval by BDS, these plans are attached hereto as App. A' and referred to herein as the 6 "Decision." The Decision approved "a new 4-story 50-unit apartment building with 7 commercial tenant spaces," R. 339, in the Storefront Commercial (CS) zone at 4425-4429 8 NE Fremont St. in Portland. (The subject property is referred to herein as the "Property" and 9 the approved development is referred to as the "Project."). 10 The record reveals that Respondent rendered the Decision without providing a 11 hearing. ORS 197.830(3) governs standing in cases where "a local government makes a land 12 use decision without providing a hearing," providing that "a person adversely affected by the 13 decision may appeal the decision to the board under this section:(a) Within 21 days of actual 14 notice where notice is required; or (b) Within 21 days of the date a person knew or should 15 have known of the decision where no notice is required." 16 A. The Decision is a "Land Use Decision." 17 In order to establish standing under ORS 197.830(3), Petitioners must first 18 demonstrate that the Decision is a "land use decision," i.e., "a final decision or determination 19 made by a local government ...that concerns the ...application of:... (iii) [a] land use 20 regulation." ORS 197.015(10)(a). "Land use regulation means any local government zoning 21 ordinance, land division ordinance adopted under ORS 92.044 or 92.046 or similar general 22 ordinance establishing standards for implementing a comprehensive plan." 23 ORS 197.015(11). Under ORS 197.015(10)(b)(A)&(B), "'Land use decision':... (b) Does 24 not include a decision of a local government:(A) That is made under land use standards that 25 do not require interpretation or the exercise of policy or legal judgment;(B) That approves or 26 denies a building permit issued under clear and objective land use standards ...." ~ This appendix may have little utility, but we attach it only to comply with the technical requirements of OAR 661-010-0030(4). Page 1 PETITION FOR REVIEW - LUBA NO. 2013-031 DCAPDX_l
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