Johnson v. City of Portland

Nothing in PCC 33.33.030.D or PCC 33.855.070A.2 evidences an intent by the city to delegate ultimate responsibility for deciding map error correction applications to BDS or to make a BDS decision the city’s final decision on such an application.

Petitioners appeal a decision by the hearings officer denying an application to correct a zone map error. Petitioners own a 2.4-acre property that is zoned Residential, with the southeastern corner located within the city’s Environmental Conservation (EC) overlay zone. The city’s Bureau of Development Services (BDS) applied on behalf of petitioners for a map error correction, pursuant to Portland City Code (PCC) 33.855.070.A.2. The director of BDS approved the application, concluding that a discrepancy existed between the city’s official zoning map and its Natural Resources Inventory (NRI) map. An appeal of the decision was filed.  The hearings officer agreed that a discrepancy existed, but concluded that there was insufficient evidence to support BDS’ position that the NRI map represents the city council’s legislative intent regarding where the EC zone boundary should be located. This appeal followed.

In their first assignment of error, petitioners argue the hearing officer erred in failing to recognize that PCC 3.33.030.D and PCC 33.855.070.A.2 delegate authority to BDS to implement the NRI by updating the official zoning map and to correct inconsistencies between the official zoning map and the NRI map. The city responds that, during the proceedings below, petitioners’ argument was not presented to the hearings officer and BDS did not take the position that it had been delegated the relevant authority. LUBA disagrees with petitioners, stating that nothing in the cited code provisions evidences an intent by the city to delegate the relevant authority to BDS or to make a BDS decision the city’s final decision on such an application.

Petitioner further argues that the hearings officer improperly construed the city code to require that BDS provide substantial evidence, in the form of documentary pronouncements from the city council, describing factors that should be considered in determining where zone boundaries should be located. The city responds that the hearings officer’s interpretation is that statements and pronouncements by BDS representatives do not constitute evidence of the city council’s intent in that respect. Although LUBA agrees with petitioners that legislative intent can be evidenced by something less than documentary pronouncements from the city council, petitioners’ arguments were not sufficiently developed for review and provide no basis for reversal or remand. The city’s decision is therefore AFFIRMED.