Columbia Pacific Building Trades Council v. City of Portland

OAR 661-010-0071 requires LUBA to reverse a land use decision if it finds the decision to be unconstitutional.

Petitioners appeal Portland city Ordinance No. 188142, which adopts legislative text amendments (FFT amendments) to the city’s zoning ordinance to prohibit new bulk fossil fuel terminals (FFTs) and the expansion of existing FFTs. Petitioners argue that the FFT amendments violate the dormant Commerce Clause of the United States Constitution because the ordinance discriminates against or unduly burdens interstate trade in fossil fuel. When a state or local law’s purpose or practical effect is to favor in-state economic interests over out-of-state interests, the government must demonstrate that the law is supported by a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives.

Petitioners argue that it is clear from the record that the primary purpose of the amendments was to forestall the possibility that a particular vehicle of interstate and international commerce would be established within the city. The city council adopted Policy 6.48 as a result of the Pembina proposal that was abandoned in the face of significant local opposition. Policy 6.48 states that the city’s policy is to “limit fossil fuel distribution and storage facilities to those necessary to serve the regional market.” Since the FFT amendments specifically implement Policy 6.48, they have the practical effect of precluding the siting of new fossil fuel export terminals within the city.

LUBA agreed with petitioners and found that the amendments have a discriminatory practical effect on interstate commerce. In particular, LUBA states that the city objects to a particular aspect of commerce that is intrinsically interstate in nature, and adopts a zoning amendment that prohibits establishment of such uses, or the expansion of existing uses, but allows existing undesirable uses to continue in the city essentially as nonconforming uses. Further, the city failed to demonstrate that the amendments serve a legitimate local interest or purpose that cannot be adequately served by reasonable nondiscriminatory alternatives. Thus, LUBA finds that the FFT amendments are inconsistent with the dormant Commerce Clause. REVERSED.