Southwest Hills Residential League v. City of Portland

Intervenor applied for a partition to develop a planned unit development. Under PCC 33.641.020, in order for the city to approve a land division, “[t]he transportation system must be capable of safely supporting the proposed development in addition to the existing uses in the area,” including “safety for all modes.” Under PCC 33.641.030, an applicant may satisfy PCC 33.641.030 through mitigation measures. The city concluded that an adjacent street was not safe for pedestrians and bicyclists. However, because the development would have added negligible pedestrian and no bike trips to the adjacent street, and because steep slopes and a wetland on the property would have made providing standard half-street improvements particularly expensive, the city concluded that it could not, consistent with the Fifth Amendment to the United States Constitution, as interpreted by Nollan v. California Coastal Comm’n, 483 US 825, 107 S Ct 3141, 97 L Ed 2d 677 (1987), Dolan v. City of Tigard, 512 US 374, 114 S Ct 2309, 129 L Ed 2d 304 (1994), and Koontz v. St. Johns River Water Management Dist., 570 US 595, 133 S Ct 2586, 186 L Ed 2d 697 (2013), require intervenor to construct standard half-street improvements. Instead, in approving the application, the city required intervenor to make lesser improvements to both sides of the adjacent street. On appeal, petitioners argued that, because the city concluded that the adjacent street was not safe for pedestrians and bicyclists, the city was required to deny the application under PCC 33.800.050(A). Because petitioners did not challenge the city’s conclusion that requiring additional improvements would violate the Fifth Amendment, LUBA concluded that petitioner’s argument provided no basis for reversal or remand. The assignment of error was therefore denied, and the city’s decision was AFFIRMED.