Preserve the Pearl LLC v. City of Portland

Under ORS 197.829(1) and Siporen v. City of Medford, 349 Or 247 (2010), a local government can plausibly interpret its own land use regulations by first considering and then choosing between (or harmonizing) conflicting provisions; a local government’s plausible interpretation must be affirmed unless the interpretation is inconsistent with all of the “express language” that is relevant to the interpretation, or is inconsistent with the purposes or policies underpinning the regulations.

The subject property, in the City of Portland’s Central City Plan District, is located two blocks east of the western edge of River Sub-District, which runs along Interstate Highway 405, and is approximately 12 blocks west of the Willamette River. Under the applicable city zoning, the maximum building height on the subject property is 75 feet. The challenged proposal is to develop two buildings with a public courtyard between the two buildings. The proposed building on the east side of the block was granted a general 45-foot bonus and a housing 30-foot bonus, and would be nearly 150 feet tall. The proposed west building would be 76 feet tall. Following the city’s grant of design review approval for the full-block, mixed-use development, Preserve the Pearl, LLC, (Pearl) appealed the city’s decision to LUBA.

Pearl contends that Portland City Code (PCC) 33.510.210.E.f requires proposed height increases to be consistent with the purposes stated in PCC 33.510.205.A. Pearl further argued that the city erred by interpreting PCC 33.510.210.E.f to be satisfied if the proposed height increase was “harmonious ‘as a whole,’ or ‘on balance’ with the general purposes stated in PCC 33.510.205.A,” because that interpretation was “inconsistent with [the provision’s] express language,” and therefore not entitled to deference under ORS 197.829(1)(a). The city responded that its interpretation avoids rendering as a nullity the city’s designation of that area as potentially eligible for the housing bonus, and retains consistency with the possible provisions highlighted in ORS 174.010, as well as the decision in Friends of Hood River Waterfront v. City of Hood River, 263 Or App 80 (2014). LUBA disagreed with Pearl and found that the city's interpretation was satisfactory and not reversible under ORS 197.829(1), and determined that Pearl failed to address the city’s alternative interpretation or why it was erroneous. AFFIRMED.