A recently decided case by the Oregon Land Use Board of Appeals (“LUBA”) says a lot about our land use system – perhaps too much. Richmond Neighbors for Responsible Growth v. City of Portland (February 20, 2013) started out as a challenge to project design and the parking requirements (or lack of such requirements) for a multi-family project at SE 37th and Division which was zoned for the multi-family use. Some neighbors formed Richmond Neighbors for Responsible Growth (RNRG) to object to the project. RNRG wanted input into the design of the site and structure to assure the “livability” and “character” of the area. Some neighbors also wanted fewer apartments. The City treated the application as one in which it had no discretion but to grant the application for 81 units. This development was one of several multi-family developments now proposed in Southeast Portland.

The City moved to dismiss RNRG’s case, contending that, under state law, LUBA could not review building permit applications based on clear and objective standards. LUBA, however, determined that not all the standards were clear and objective, and there was discretion that could be used to determine the height of this apartment building on a site with two different zoning designations. That discretion in determining the height led LUBA last November to conclude that it had jurisdiction to hear the case.

Now that their case could be heard, RNRG was faced with how to make that case. The final order doesn’t mention any challenges to the City’s lack of required onsite parking, as that standard involved no discretion. The one thing RNRG could challenge was the City’s interpretation of an obscure requirement that the “main entrance” for each tenant space be within five feet of the façade facing Division Street and, in fact, face that street. LUBA rejected the City’s interpretation of this requirement that it only applied to non-residential uses as contrary to the text of the regulation. Because the application would have to be revised substantially to meet the City’s code, LUBA reversed (rather than remanded) the City’s decision. (more…)