Frewing v. City of Portland

The number of lots dictating the procedure to be used under Portland City Code (PCC) 33.660.110(A)(2) includes only those lots that are being proposed and not those that are preexisting, and the definition of “lot” in PCC 33.910.030 excludes “tract.”

Intervenor-respondent, PHK Development, Inc. (intervenor), submitted a land division application to consolidate five lots zoned High Density Residential (HDR) and Commercial Office 2 (CO2) into two lots and two resource tracts. A multi-family dwelling would be constructed on Lot 1, while an existing single-family dwelling would remain on Lot 2. Regarding tracts A and B, intervenor proposed that the existing pedestrian easement be vacated and a new easement be placed to accommodate future pedestrian and bicycle facilities. Pursuant to Portland City Code, the city reviewed the application under its Type IIx procedures. Staff approved the application and the petitioner, Frewing, appealed.

Petitioner’s first assignment of error is that the city committed procedural error by processing its application under the city’s Type IIx process rather than Type III. Petitioner argues that the city’s Type III process is required because the land consolidates five lots into two lots and two tracts, meaning the proposal includes four or more lots, even though it only creates two. LUBA agreed with intervenor and the city regarding the Type IIx procedures, finding that the only basis to be evaluated is how many lots are created; no easements or pre-existing lots are to be considered. LUBA could not remand on the basis of procedural error since it did not find that the petitioner’s substantial rights were prejudiced. See ORS 197.828(2)(d).

Petitioner’s second assignment of error argued that because there was no new proposed development on lot 2, the minimum front lot line should be the 70 feet for multi-family development. The hearings officer found that since Lot 2’s 50-foot front line exceeds the 10-foot lot line required for single-family development, it satisfied the minimum dimensional standards. In regard to the easement, petitioner raised eight assignments of error. LUBA determined that none had merit. AFFIRMED.