Patel vs. City of Portland

Under PCC 33.430.280, “site-related” development standards include height and setback standards as being consistent with the purposes of environmental zones and review.

Petitioners appeal a city land use hearings officer’s decision that grants environmental review and environmental modification review for a 36-unit multi-family structure. Petitioners appeal a city land use hearings officer’s decision that grants environmental review and environmental modification review for a 36-unit multi-family structure. Through environmental review, the hearings officer approved a modification of the setback from 10 feet to 0 feet and a maximum building height limit from 40 feet to 75 feet.

            In its first and second assignment of error, petitioners argued that the hearings officer improperly interpreted Portland City Code (PCC) 33.430.280 to mean that building heights and setbacks are “site-related” rather than a “use-related development standard.” LUBA found that PCC 33.430.280 is ambiguous and does not define the terms “site-related” and “use-related development standards,” but noted that the city code left out whether the minimum front setback requirement or height limit fall within that category lending some support to the hearings officer’s interpretation. Additionally, LUBA found that the city hearings officer and city council have consistently interpreted height and setback standards to be site-related development standards, which added more support to the hearings officer’s interpretation.

The city argued that the purpose statements for the  environmental zones and environmental review provide context to support its interpretation that “site-related” standards include standards that affect how much of the site is available for resource protection. The city argued that the standard was met when the hearings officer approved the modifications that allowed the development to be pulled away from the portion of the site with the most valuable resources. Next,  the city argued that “use-related” refers the change of the development on a site which requires an adjustment, such as increasing the units in the building or the number of parking spaces. Under this interpretation, site layout or development dimensions are site-related development standards. LUBA agreed with the respondent’s interpretation that site-related development standards include height and setback standards as being consistent with the purposes of environmental zones and review.

Finally, the city argued that the initial code’s language included “building heights” and “building setbacks,” that was changed to “site-related development standards” making it consistent with the hearings officer’s interpretation. LUBA agreed with the city that the hearings officer’s interpretation was consistent with the legislative history. Therefore, LUBA held that the hearings officer did not improperly construe the applicable law given that its interpretation was consistent not only with prior hearings officers and the city council’s interpretation, but also with the purpose statements of the environmental zones and environmental review, and code’s legislative history. AFFIRMED.