Beaumont-Wilshire Neighbors v. City of Portland

Oregon Plumbing Speciality Code 1101.5.3.2, granting the Bureau of Development Services Appeals Board authority to approve deviations, does not “impose any express limits on or standards to guide decisions approving such deviations.”

A revised building permit was issued to VWR Development for a 50-unit apartment building, following the remand of this case from LUBA in December 2013. At that time a solution was proposed to remedy a setback violation of the proposed drywell, but it was later found that to move the drywell to the new location would cause another setback violation at the rear of the property line. VWR was granted approval to locate the drywell less than 10 feet from the building by the Bureau of Development Services Administrative Appeals Board (BDS) and the Bureau of Environmental Services, and Beaumont-Wilshire Neighbors (Neighbors) appealed to LUBA. In their first assignment of error, Neighbors argued that the city made a decision not supported by substantial evidence, improperly construing applicable law, and that BDS did not determine that there were “unique circumstances” to justify deviation from the 10-foot setback. LUBA found Neighbors’ argument that “question[ed] the authority of BDS to waive the subject regulations” unavailing for the reason that it was not a “waiver” of the requirement but rather an “approval” of a closer drywell. Furthermore, LUBA found no basis for this challenge under the Oregon Speciality Code, Oregon Plumbing Specialty Code, or the Portland City Code (PCC) and denied this assignment of error. The second assignment of error, premised on the challenge under the PCC, was denied due to the denial of the first. AFFIRMED.