Restore Oregon v. City of Portland

ESEE analyses that use more conservative assumptions for petitioner’s property than for other properties, resulting in a higher estimate of economic impact to petitioner’s property, provide no basis for reversal or remand.

Petitioners appeal two comprehensive plan amendments adopting new height limits in portions of the New Chinatown/Japantown Historic District (District) and the Southern Triangle. Under ORS 197.835(6) and (7)(a), LUBA must reverse or remand comprehensive plan amendments if they are not in compliance with the goals and land use regulation amendments if they are not in compliance with the comprehensive plan.

Under Portland Comprehensive Plan (PCP) Policy 4.48, the city must “[e]ncourage development that fills in vacant and underutilized gaps within the established urban fabric, while preserving and complimenting historic resources.” In its findings with respect to the District, the city focused on the development of vacant parcels and concluded that the preservation and complementation of existing historic resources is better left to the Landmarks Commission, which reviews development proposals in the District. In one assignment of error, petitioners argue the city’s findings are inadequate to explain why the new height limits comply with PCP Policy 4.48 because they neither describe the “established urban fabric” or the existing historic resources, nor explain how the new height limits will preserve and compliment those resources. LUBA agrees with petitioners that the city’s findings do not explain how the new height limits preserve and complement existing historic resources and that, since the new height limits apply as of right, that question cannot be deferred to the discretionary review of the Landmarks Commission. This assignment of error is therefore sustained, in part.

As part of the comprehensive plan amendments, the city adopted a new scenic resources protection plan. Under OAR 023-0230(2), which implements Statewide Planning Goal 5 (Open Spaces, Natural Resources and Historic Resources), when a local government adopts or amends an inventory of scenic resources, it must conduct an Economic, Social, Environmental, and Energy (ESEE) analysis. Based on its ESEE, the city concluded that limiting building heights in the Southern Triangle was necessary to protect the economic impacts of a particular viewpoint. In another assignment of error, petitioners argue the city’s ESEE was flawed because (1) it used different assumptions for height, floor area ratio, and lot coverage for the Southern Triangle than for the rest of the central city, (2) its assumptions for dollar and jobs per square foot values were based on the entire central city rather than specifically the Southern Triangle, and (3) these assumptions undervalued the economic impacts of the new height limits on petitioner’s property. The city responds, and LUBA agrees, that the ESEE actually used more conservative assumptions for the Southern Triangle than for other areas, resulting in a higher estimate of economic impact to petitioner’s property. This assignment of error is therefore denied and the city’s decision is REMANDED.