Kulongoski v. City of Portland

Portland City Code 33.825.040 allows a review body to approve modifications of site-specific development standards that “better meet design guidelines” and are consistent with the “purpose of the standard for which a modification is requested.”

Petitioners appeal a decision by the city approving a two-story addition to an existing dwelling and modifications to the applicable side yard setbacks. The dwelling is adjacent to the Willamette River Greenway Trail and is non-compliant as to the required setbacks to the north and south.

Portland City Code 33.825.040 (hereinafter “the Code”) allows a review body to approve modifications of site-specific development standards that “better meet design guidelines” and are consistent with the “purpose of the standard for which a modification is requested.”

In Kulongoski I, LUBA remanded the city’s decision, agreeing with petitioners that, in applying the Code and determining whether the proposal “better meets” Macadam Corridor Design Guideline 1 (Guideline 1), which is to "[c]reate public views to the river, Greenway Trail and Willamette Park from Macadam Avenue and other public parks and rights-of-way west of Macadam [and] views from the river and the Greenway to the west,” the city wrongly compared the proposed setback modifications to the existing, non-compliant setbacks, rather than to conforming development. LUBA also sustained petitioners' argument that the city's findings failed to address views from the river and the Greenway to the west, as stipulated under Guideline 1.

Petitioners’ first assignment of error on appeal is three-part. First, petitioners argue that the city improperly construed the Code by relying on that the additional floors are smaller than the maximum permitted when concluding that the modifications better meet the purpose of Guideline 1. Petitioners argue that smaller floors were required to satisfy the outdoor area standard, and therefore do not better meet Guideline 1. Respondents respond, and LUBA agrees, that petitioners' argument presupposes the additional floors are the proposed size only because they are required to be. The first subassignment of error is denied.

Second, petitioners argue that the city improperly construed the Code by comparing the proposed modifications to the non-compliant, existing dwelling. Respondents respond that the city appropriately and expressly compared the proposed modifications to “a fully code compliant design.” As petitioners do not challenge those findings, the second subassignment of error is denied.

Third, petitioners argue that the city’s findings are inadequate because the city only considered views "from the water's edge and Greenway beach." Respondents respond, and LUBA agrees, that petitioners do not address evidence that the city considered views from the entire river and Greenway to the west. The third subassignment of error is denied.

In their second assignment of error, petitioners argue that the city's findings that the proposal meets Guideline 1 are inadequate because they fail to explain how the proposal "creates" views from the river and the Greenway to the west and to consider views from the east bank. Petitioners argue the findings at best demonstrate how features do not "interfere with existing views." Respondents respond that petitioners should be precluded from raising the issue because they failed to raise it in Kulongoski I. A petitioner may not raise an issue in a subsequent stage of a proceeding if that issue was previously decided adversely to them or if they could have but failed to raise the issue below. Beck v. City of Tillamook, 313 Or 148,831 P2d 678 (1992). Petitioners counter-argue that they did raise the issue in Kulongoski I, and that LUBA decided the issue in their favor. Here, LUBA agrees that the issue had been previously raised and is not precluded.

Nevertheless, LUBA agrees with respondents’ alternative response that the city's findings were adequate to explain why the city concluded that the proposal creates views from the river and the Greenway to the west and why selected design features allow views past the dwelling from the east bank. The second assignment of error is denied. The city's decision is affirmed.