Northwest District Neighborhood Association v. City of Portland

(1) LUBA must affirm a local governing body's interpretation of its own land use regulations if the interpretation is not inconsistent with the express language, purpose, or policy of that regulation, even when presented with a stronger or more logical interpretation. (2) Under ORS 187.828(2)(a), the existence of evidence in the record supporting a decision different from that which the local government made shall not be grounds for reversal or remand if there is evidence in the record to support the decision which the local government actually made.

The subject property is developed with a three-story structure designated as a historic resource. Intervenor applied for historic review, modification, and an adjustment to adapt the existing structure for residential use, attach a new four-story addition to the south, and construct a new, detached five-story building to the north—all designed to appear as three separate buildings. The city approved the proposal and this appeal followed.

Community Design Guideline (CDG) 3 requires that additions to historic resources be reviewed for compatibility with the original resource, adjacent properties, and the rest of the district. In approving the application, the city interpreted “compatibility” as not requiring uniformity. The city found that the development is compatible with (1) the existing structure because it uses similar architectural designs; (2) adjacent properties because it reinforces the neighborhood’s fine-grained pattern of development through use of quarter-block buildings as well as material and plane changes; and (3) the district because of the materials and design features. In the first assignment of error, petitioner argues the south addition and north building are not compatible because they will tower over the existing structure and because the overall design is out of proportion with the smaller structures in the immediate area. Because the city’s interpretation of compatibility as not requiring uniformity is inconsistent with neither the express language nor the purposes or underlying policies of CDG 3, the first assignment of error is denied.

Under CDG P1, new development must retain the desired characteristics and traditions of the designated design subarea. Under CDG Appendix J, the desired characteristics and traditions applicable to the subject property state that new development should maintaining the district’s architectural scale, fine-grained pattern of development, partial block massing, and historic resources, and that structures more than four-stories tall should have upper stories stepped back. In approving the application, the city interpreted the step-back guidance as a merely a suggestion, found that the development retained the other desired characteristics and traditions without step-backs based on partial block massing, distinct wall planes, and separate structures, and observed that the neighborhood scale includes other tall buildings with upper stories that are not stepped-back. In the third assignment of error, petitioner argues the development fails to meet CDG P1 by allowing new buildings without the upper stories stepped back. LUBA agrees with intervenors that the city’s interpretation of the step-back provision as non-mandatory is not inconsistent with the express language, purpose, or underlying policy of CDG P1 and that the city’s findings are adequate and supported by substantial evidence. The second assignment of error is therefore denied.

Under CDG D6, additions to historic resources must be compatible in scale, color, details, proportion, and character with the existing structure. In approving the application, the city interpreted this provision to require that the development compliment the existing structure, but not that it replicate the existing structure’s scale, color, details, proportion, and character. The city went on to adopt numerous findings explaining how the development would compliment the existing structure. In the third assignment of error, petitioner argues the south addition and the north building are not compatible with the existing structure in terms of scale, size, and proportion because the latter is much smaller than the former. Because the city’s findings are adequate and supported by substantial evidence, including a statement from the Historic Landmarks Commission stating that the development’s scale was unanimously not concerning to the commission members, the third assignment of error is denied.

Under CDG D7, applicants must reduce the impact of new development on established neighborhoods by incorporating elements of nearby, quality buildings. In approving the application, the city interpreted “neighborhood” to include the surrounding four to five blocks. Because there are multiple structures within four to five blocks of the subject property with five or more stories that provided design influence for the development, the city found that the development would blend into the neighborhood. In the fourth assignment of error, petitioner argues the city improperly construed CDG D7 by considering buildings within four to five blocks, rather than those within only a couple blocks, since the entire district is only seven blocks wide. Because petitioner does not demonstrate that the city’s interpretation is inconsistent with the express language, purpose, or underlying policies of CDG D7, the fourth assignment of error is denied.

Under Portland City Code (PCC) 33.266.310.C.1 and D.2, the development must provide one on-site loading space. Under PCC 33.805.010 and .040, the city can modify applicable regulations when, among other things, the proposed development continues to meet the intended purpose of the regulations. Under PCC 33.266.310.A, the purpose of the loading space requirement is to ensure adequate areas for loading that will not have a negative effect on the traffic safety of the abutting right-of-way. In approving the application, the city allowed the loading space to be moved off-site and onto the street. The city relied on testimony from the Portland Bureau of Transportation (PBOT) that, because the residential units in the development are studio apartments which tend to have minimal turnover and less need for loading larger furniture, and because moving the loading space to the street prevents it from interrupting the pedestrian sidewalk, the adjustment would equally or better meet the purpose of the loading space requirement. In the fifth assignment of error, petitioner argues the city’s findings are not supported by substantial evidence in the record because the conclusion that studio apartments require less loading space is unsupported by demographic analysis and because testimony exists in the record regarding anticipated negative impacts of off-street loading. Because a reasonable person could rely on statements from PBOT regarding studio apartment loading needs and traffic safety, the fifth assignment of error is denied and the city’s decision is AFFIRMED.