Hill v. City of Portland

The city’s determination not to require street improvements for safety reasons under PCC 33.641.020(A) does not mean it cannot impose a condition requiring a waiver of remonstrance under PCC 33.800.070 to enforce PCC 17.88.020 for other reasons.

Petitioner appeals a city decision approving his application for a partition creating three parcels. Petitioner applied to divide a 1.06-acre parcel of residentially-zoned land into three separate parcels. The city approved the application with conditions requiring, among other things, a waiver of remonstrance for street and stormwater facility improvements. This appeal followed.

PCC 17.88.020 provides that if a street adjoining property without direct access to the street does not have standard full-width improvements, the owner must either provide the improvements or pay into an improvement fund as a condition for approval. In addition, PCC 33.800.070 authorizes the city to impose conditions to “ensure enforcement of other city titles.” Thus, the city concluded it has authority to impose a condition requiring waiver of remonstrance under PCC 33.800.070 in order to ensure the enforcement of PCC 17.88.020.

In its second assignment of error, petitioner argues the city erred in concluding that these provisions apply to the proposed development or, if they do, that they authorize the city to require a waiver of remonstrance as a condition of approval. Specifically, petitioner argues the city cannot impose a condition based on the obligation to construct street improvements since it elsewhere concluded that no street improvements were necessary in order to make the transportation system safe as required by PCC 33.641.020(A). LUBA states the city’s determination not to require street improvements for safety reasons does not mean it cannot impose a condition requiring a waiver of remonstrance for other reasons.

Petitioner next argues that, even if the city can impose a condition under PCC 33.800.070 to enforce PCC 17.88.020, the latter code provision only authorizes the city to require an applicant to provide street improvements themselves or to pay into an improvement fund. Because PCC 17.88.020 does not itself authorize the city to require an applicant to waive their right to remonstrate, petitioner argues PCC 33.800.070 does not authorize the city to do so in order to enforce PCC 17.88.020. LUBA disagrees with petitioner that PCC 33.800.700 is so limited. Because the city determined that compliance with PCC 17.88.020 could be assured by requiring a waiver of remonstrance, and because petitioner has neither demonstrated that such a condition exceeds the authority granted in PCC 33.800.070 or is an impermissible means of enforcing PCC 17.88.020, petitioner’s arguments do not provide a basis for reversal or remand.

Nonetheless, because remand is necessary for the city to either adopt findings under Clark v. City of Albany to support a condition requiring a waiver of remonstrance or to determine that no dedication can be justified, the second assignment of error is sustained, in part, and the city’s decision is REMANDED.