Significant land use Decision in Portland

I realize not many citizens are experts at following the quasi-judicial processes known as land use reviews, but stay with me on this one – it isn’t complicated. Last month in Portland, a Hearings Officer denied a subdivision application for land in the Southwest Hills Residential League (SWHRL) neighborhood. Denials are rare enough to make news by themselves, since by the time an application goes to a hearing, months of work and negotiation have already taken place between development review staff in multiple bureaus and the applicant/consultants. But this one is really special. Perhaps the legal ruling has been made before, and I missed it. But if that’s so, apparently staff missed it too, because they recommended Approval in their report to the Hearings Officer. The Decision is attached below (pdf) (City file reference LUR 06-181884 LDS EN M).

In land divisions in environmental zones, applications are required to show that the proposed plan for lots, streets, etc., is the option least detrimental to identified natural resources, for developing the site while still making a profit. It’s known as ‘the least detrimental “practicable” alternative’. This application was for a seven lot subdivision with a private street, on a site with some land covered by Environmental Protection (“p”) and Conservation (“c”) zones, part of the property outside of those identified natural resource areas. The Hearings Officer ruled that the application must be denied because it didn’t include a proposed alternative site plan that would keep development entirely out of the environmental zone, placing it on the portion of the site not covered by the protected overlay.

Hearings Officers make their decisions based on whether or not applications have shown that the proposed development meets the “Approval Criteria”. Approval criteria are written in the Zoning Code. They are discretionary questions on which reasonable people can disagree for the answers, which is why the public must be allowed to comment on them. The Zoning Code also contains “Standards”, which are supposed to set measurable limits on development, such as a height limit of 30 feet for a building. While there is still endless wrangling about where to measure the 30 feet from and to, assessing whether a proposed development meets the Standards is an administrative task done internally by the Bureau of Development Services.

There are at least two landmark features of this Decision.

* The Zoning Code lists many points of information required to be submitted as part of a land use review application. In previous Decisions, Hearings Officers have ruled that even if the applicant failed to supply some of the required pieces of information (which are Standards – either the information is there, or it isn’t), the proposal can still approved if the lack of information doesn’t impact the ability to decide that the Approval Criteria are met. In this one, he said that the absence of the no-build alternative for the environmental zone was reason to deny the application. This may signal new recognition that decisions on Approval Criteria may be affected by not having all the Standards met for submission of application requirements.

* And even more importantly, when the Approval Criteria ask for alternatives analysis, the Decision says one of those MUST be a no-disturbance-in-the-environmental-zone option, if there is any land on the site not covered by a protection or conservation overlay. At the very least, applications in e-zones should show an alternative site plan putting all the homes outside the natural resource area, even if the applicant then asks the Hearings Officer to conclude that fewer homes, or rowhouses/apartments, would not be “practicable” for the site. Failure to provide such an alternative and review it should result in automatic denial of future applications on e-zoned lands.

The Appeal period for this case ended earlier this week, and I don’t see an appeal to City Council listed on the helpful Bureau of Development Services page for the case (to find any active land use review, click here and give either the address or case number). I’m guessing that may be because the applicant chose at the start of the process to make appeals to Council “on the record”. The applicant is allowed to choose either that or a “de novo” appeal at Council, but they have to do that at the beginning of the application. “On the record” means no new evidence is allowed at Council; de novo means new information may be added between the Hearings Officer’s Decision and the hearing before Council. Many developers and consultants go with “on the record” because they believe it’s harder for neighbors with no legal counsel to argue at Council that way. And they’re confident they can get an approval by the Hearings Officer, and don’t want additional matters raised before the Council. In this case, had they chosen a de novo process for the Appeal, they would have been able to enter the required alternative site plan for Council to review and maybe reverse the Hearing’s Officer’s decision.

Since we currently don’t have anyone serving on the Council who is an expert in land use reviews, I’m glad the case stands with the Hearings Officer’s well-reasoned decision.

This is about as clear as I can manage in an intitial review of why this Decision is important. But I realize that after 16 years of participating in processes whose primary language is Plannerese, my words may come across with an indecipherable accent. Some readers may still have questions. I’d love to try to answer them, as I want folks in neighborhoods to understand why this decision is important for future land use reviews.