SW Development Review
Compiled from development review and other notices. Posted February 7, 2012.
Pre-application conferences and design advice meetings (at 1900 SW 4th Ave, unless otherwise noted):
EA 12-107785. Pre-application conference for a new seven-story building with ground floor retail and residential use on upper floors. No on-site vehicle parking is proposed but parking for 152 bicycles will be provided. A loading/service area will be accessed from SW Grover, at the northwest corner of SW Moody Ave and Grover St, in South Portland. A type III design review is required. The hearing will be on February 21, 8:30 to 10 am, 4th floor, Room 4a.
Public hearings (at 1900 SW 4th Ave, unless otherwise noted):
LU 10-204930 DZ GW. Applicant Portland Parks & Recreation seeks design review approval and South Waterfront greenway approval to construct greenway improvements from SW Gibbs St to SW Lane St, in South Portland. The hearing will be on Thursday, February 2, at 1:30 pm, in Room 2500A.
Proposals:
LU 11-185150 CU. Applicant AT&T Mobility has an existing wireless telecommunications facility on the rooftops of four buildings on the Lewis & Clark College campus, and requests conditional use approval to add an LTE antenna, surge protector, and two remote radio heads at each of the antenna locations, at 0615 SW Palatine Hill Rd.
LU 11-198116 AD. Applicant proposes to convert a detached studio building into an accessory dwelling unit (ADU), and requests adjustments to the ADU develpment standards to increase allowed floor area and height, at 1310 SW Taylors Ferry Rd, in Marshall Park.
LU 10-194162 DZ. Applicant seeks design review approval for new and relocated telecommunications equipment on top of a building on the OHSU Marquam campus, at 3310 SW US Veterans Hospital Rd, in Homestead.
LU 11-203652 EN. Applicant Bureau of Environmental Services requests environmental review approval to replace a portion of a sewer line in Marquam Nature Park, near SW Edgewood Road, in SWHRL.
Decisions:
LU 11-174695 LDP AD. Land division approval to divide a 4.5-acre site into one lot and one open space tract, at 10494 SW 62nd, in Ashcreek. Applicant intends to transfer ownership of the open space tract to Portland Parks & Recreation.
LU 11-167525 DZ. Design review approval for a segment of the proposed transitway coming off the new light rail bridge at Porter and running parallel to Moody north toward the Marquam Bridge, in South Portland.
LU 11-191079 AD. Adjustment approval to increase the height of a fence in the front setback, at 5209 SW View Point Terrace, in South Portland.
LU 11-113879 ENM. Related to construction of a home in the environmental conservation overlay zone: approval of modifications through environmental review to increase maximum allowable height and to decrease a side setback, between SW Hewett Blvd and Scholls Ferry Rd, in SWHRL.
LU 11-196245 EN. Environmental review approval for an ODOT proposal to repave a section of Sunset Hwy. The project includes a new pipe between an existing catch basin and an existing storm drainage system, at US 26 (MP 71.53 to 73.72), in SWHRL.
LU 11-197674 AD. Adjustment approval to reduce the minimum front setback for proposed deck, at 3340 SW Fairmount Blvd, in SWHRL.
LU 11-199866 ZE. Approval of modification of the boundary of an environmental conservation zone, at 4900 SW Humphrey Blvd, in SWHRL.
LU 11-193661 AD. Adjustment approval to reduce minimum setbacks, at 7401 Corbett Ave, in South Portland.
LU 11-173927 EN GW. Environmental and greenway review approval for construction of the replacement Sellwood Bridge and related work, at current Sellwood Bridge site and vicinity, in South Portland and Sellwood-Moreland.
LU 11-203956 AD. Adjustment approval to reduce a building setback and a roof eave setback, for an attached two-car garage, at 5827 SW Vermont St, in Hayhurst.
Notable cases:
The following entries reflect the opinion of Leonard Gard and are not intended as legal advice.
Adjustments:
LU 04-046998 AD. Applicant renovated a fence on residential property within the front setback, and sought an adjustment to increase the allowable height. The decision required that conditions of approval be noted on site plans for the building permit.
LU 05-132369 AD. In a 2002 case, applicants got adjustment approval to reduce a north side setback from five to three feet for a wall and five feet to two feet for projecting eaves, all for a detatched accessory structure. But a revision to the building permit allowed a full-length, north-facing shed dormer. A stop work order was issued. Applicant sought adjustment approval again for the same setback adjustment on the north side. The adjustment request was denied because the added shed dormer impacted access to light and neighborhood character, and was not sufficiently mitigated.
LU 05-144206 AD. Applicants sought to legalize the location of a pole barn that encroached into the rear setback of their own property, and that had eaves that crossed the property line and extended over the rear setback of the neighbors' property. Applicants sought setback adjustments for both properties.
LU 09-105652 AD. Applicant proposed construction of a multi-dwelling structure in a residential zone in the West Portland Park neighborhood. The site on its west side has frontage on Barbur but it's a steep drop to Barbur from the site's primary plane. The site's auto and pedestrian access is to the east via Dickinson. The city code favors orientation of new development toward transit streets like Barbur. Applicant sought adjustments to two regulations meant to encourage such orientation, one of which requires buildings to be set back a maximum of 20 feet from any adjacent transit street, and a second that requires a pedestrian connection to that transit street.
The administrative decision approved the adjustments. The neighborhood association appealed and the Adjustment Committee affirmed the decision subject to conditions.
On their face, the approval criteria for allowing adjustments appear to be rigorous. But they're interpreted loosely, and nearly all proposals, at least in SW Portland, are approved. This case in a good example of the stretch that is done to find comliance with the criteria. In effect, administrative writers are making case law to deal with fact situations not foreseen by the city code.
For example, the first criterion provides: "Granting the adjustment will equally or better meet the purpose of the regulation to be modified." Regarding the first adjustment request, to waive the maximum transit street setback, the purpose of the regulation is described in the code this way: "Setback requirements along transit streets create an environment that is inviting to pedestrians and transit users." The administrative decision, finding the criterion was met, notes that, because of the location of other improvements on the site--another building, a parking lot, and a trash area--it was "physically infeasible" to build the new structure to meet the maximum transit street setback. The decision also notes that the 1999 Barbur Streetscape Plan did not call for a sidewalk on the east side of Barbur at that location, so waiving the maximum transit street setback wouldn't have any impact. All that might be true but the waiver does nothing to equally or better meet the purpose of creating an environment inviting to pedestrians and transit users.
Similar arguments are made to find that the second adjustment request, to waive the requirement for a pedestrian connection to the transit street, also meets the first criterion. The decision notes the danger of creating a connection down to Barbur where it would be unsafe to walk. It again notes that the Barbur Streetscape Plan does not call for a sidewalk there. The Barbur Streetscape Plan is a good plan that still has value. It identifies locations for future sidewalks. But it does not oppose sidwalks at other locations. There is a TriMet bus stop on the east side of Barbur in the vicinity of this site. Where there are bus stops, it makes sense to have sidewalks. Once again, one piece of an integrated pedestrian network is not installed because another piece is not yet installed.
LU 08-147342 LDP AD. Applicant proposed a two-lot partition and sought an adjustment to allow the pole of the flag lot to pass within two feet of the existing house. Approval through a building code appeal was needed to reduce the required minimum three-foot setback of the house from the property line created by the flag pole. The approval had not been obtained, so the adjustment was denied.
Conditional use, design review, modifications:
LU 10-145100 DZM. Applicant property owner sought design review and modifications approval for an extensive addition to a building in the South Waterfront district, part of the South Portland Neighborhood Association (SPNA). The property is bounded by Bancroft Street on the north, Macadam Avenue on the west, and the Moody Avenue right-of-way on the east. The addition was needed for a new lessee, the federal Department of Homeland Security. The base zone at the site is CX (Central Commercial). The site is also covered by a design overlay zone.
The revised staff report from the city describes the lessee's primary use as falling into the office category, with accessory uses, including a detention processing center (DPC). Office uses and their accessory uses are allowed outright in the CX zone. Because staff made a threshold decision the applicant's proposal did not entail a conditional use, the case proceeded only as a design review with requested modifications to development standards. SPNA argued that the DPC was not accessory to an office use, but was a primary detention facility use, which is allowed conditionally but not outright in the CX zone--meaning a conditional use review would be required.
In a November 18, 2010 decision, the Design Commission approved design review and the proposed modifications. SPNA appealed to City Council, which affirmed the design review approval and modifications but also ruled that conditional use and parking reviews would be required for the applicant to proceed with the DPC and supporting office uses and parking.
Although SPNA prevailed on its primary assertion--that a conditional use review was required--the case is also emblematic of problems with design review and modifications. The problem with design review is that the language of the design guidelines is broad and imprecise. That may be necessary to allow the guidelines to apply to lots of situations, but this case suggests that the guidelines are so lacking in substance, that they can justify about any development. Two sets of design guidelines are applicable in this case: the 1990 Central City Plan Fundamental Design Guidelines and the 2010 South Waterfront Design Guidelines. Both have the same internal organization, divided into three sections: A: Portland Personality, B: Pedestrian Emphasis, and C: Project Design. Portland City Code 33.825.055 provides that "A design review application will be approved if the review body finds the applicant to have shown that the proposal complies with the design guidelines for the area."
Here are a few examples of arguments made in the revised staff report, with which the Design Commission apparently agreed. Criterion A1 in both sets of guidelines is Integrate the River. It calls for design that integrates the river as an important design consideration in the project. Staff makes three points to argue that this project meets the criterion: that building a sidewalk along Bancroft creates a pedestrian connection from Macadam to the river; that the main entry will face this new pedestrian connection; and windows on the third floor of the addition will provide generous views of the river. But the sidewalk will be in the right-of-way along Bancroft. Sidewalks should be de rigueur infrastructure throughout the Central City. The sidewalk doesn't have much to do with the design of the project. The main entry will indeed be facing north toward the new sidewalk, but that means the main entry will be facing away from the river. That main entry will foster separation from the river, not integration. The main entry should face to the east, where the river is and where the streetcar will be. The windows will provide views to the river. But nearly any design will have windows facing the river.
Although staff and the Commission found A1 (from the Central City Plan Fundamental Design Guidelines) applicable, they did not find the corresponding criteria A1-1 and A1-2 from the South Waterfront Design Guidelines applicable. A1-1 is Develop River Edge Variety. It gives good examples of ways a building design can create river edge variety--stepping back upper floors, using elements that help create human scale, etc. This project appears to not do much to create river edge variety. A1-2 calls on projects to incorporate active uses along the river, such as shops and sidewalk cafes. Again, this development barely does that. Page 4 of the staff report notes that phase 2 of the project will include only one small retail sales and services ground level space.
The applicant also sought modifications to five development standards: ground floor windows, transit street main entrance, location of vehicle areas, building lines, and ground floor active use. Modifications are allowed, when 1) the resulting development will better meet the applicable design guidelines, and 2) on balance, the proposal will be consistent with the purpose of the standard for which the modification is requested.
Parsing all five modification requests would be too lengthy but the ground floor windows issue is one example of some stretched reasoning. Here's the purpose of the ground floor windows requirement: "In the Central City plan district blank walls on the ground level of buildings are limited in order to: provide a pleasant , rich and diverse pedestrian experience by connecting activitiies occuring within a structure to adjacent sidewalk areas; encourage continuity of retail and service uses; encourage surveillance opportunities by restricting fortress-like facades at street level; and avoid a monotonous pedestrian environment." For the north side of the building, the staff report positon appears to be that generous landscaping meets the above purpose. Landscaping may enliven the pedestrian environment but doesn't really address the other three components of the purpose statement. A1, A4, A4-1, A4-2, A5, and B5 are the relevant guidelines that are supposedly better met by the modified standard. A1 is about integrating the river but north side landscaping doesn't face the river. A4 is about linking buildings with other areas through use of continuous elements; it doesn't seem applicable. A4-1 and A4-2 are about integrating ecological concepts and stormwater management; the landscaping may help with that. A5 is about embellishing special districts and gives examples of signs, awnings, hanging flower baskets, and special paving. B5 is about plazas, parks, and open spaces. None of this very convincingly argues that landscaping is consistent with the purpose of windows and actually better meets the design guidelines than the windows standard.
The above case may be most important for its response to a procedural issue: whether opponents in a land use case have standing to argue that the city has failed to require the applicant to go through a necessaru land use review. As noted above, the city initially took the position that this case should proceed only as a design review case, while SPNA argued that there should also be a conditional use review. The city could have argued that comment regarding conditional use was simply not relevant to the approval criteria in a design review case. To its credit, the city took a more enlightened position that opponents could raise the conditional use issue during the Design Commissiion hearing on design review, and that if so raised and part of the record, the issue could be addressed on apppeal to City Council. Indeed, City Council did review the conditional use issue and ruled in favor of SPNA.
LU 11-116384 CU. Applicant sought conditional use approval to add additional antennas to an exisiting monopole, at 11328 SW Boones Ferry Rd, in Arnold Creek. The original decision allowing the monopole set a condition of approval that any later additions of antennas would have to go through a type II review. That condition of approval supercedes the zoning code provision that allows additional antennas by right.
Environmental Review:
LU 07-158286 EN M. Applicants sought environmental review approval for construction of a single-family dwelling in the West Portland Park neighborhood. Staff approved the proposal and the neighborhood association appealed to the hearings officer, whose decision is noteworthy, particularly for the following:
1) In environmental review cases, one criterion the applicant must meet is that "The proposed development locations, design, and construction methods are less detrimental to identified resources and functional values than other practicable and significantly different alternatives." The hearings officer extensively parsed the above language and concluded that, in the context of practicability, the applicant has the right to choose the purpose of his or her project and choose alternatives that meet that purpose. He also notes that the city recognizes that property owners have broad rights associated with the development of their property.
2) The hearings officer found that stormwater flows onto the project site from adjacent sites are relevant to stormwater management related criteria.
Land Divisions:
LU 08-168843 LDP AD. This site is in the Arnold Creek neighborhood. It's approximately 40,000 square feet. For some time there was one house on the site, and the owner recently got approval to partition into two lots: a lot for the existing house and a flag lot in back. The zoning is R10, so the lot was big enough for four lots. But because the site is in a landslide hazard zone, there was no minimum density requirement.
But the proposed two lots exceeded the maximum allowed size in the R10 zone, and triggered an adjustment request to allow the excessive size. Portland's land division code now allows creation of lots in a partition or subdivision to vary in size as long as overall density for the entire project site meets density limits. That caused concern, though, that a large lot in land division could at a later date be further divided, causing the total number of lots to exceed allowable density for the previous land division..
In this case, staff reviewed the purpose statement for lot dimension standards. In particular, staff focused on one purpose of lot dimension standards: that "Lots are not so large that they seem to be able to be further divided to exceed the maximum allowed density of the site in the future." Staff found that purpose had been met because there was no circumstance in which further division of the proposed parcels would result in exceeding maximum density for the original site. Even if each lot produced by the partition were in turn partitioned into two lots, it would result in four lots, which would be currently allowable.
LU 06-185242 AD. This case addresses the same issue as in LU O8-168843 LDP AD except that here, a super large lot is created not through a land division but through a property line adjustment.
Applicant owned adjacent lots of similar size in the Arnold Creek neighborhood with combined size of 59,200 square feet (SF). The zoning is R20. Applicant planned a property line adjustment to decrease the size of one lot and increase the other to 46,663 SF. The maximum lot size in the R20 zone is 34,500 SF, so applicant sought an adjustment to increase the allowable size of the larger lot.
Staff again focused on the purpose of lot dimension standards: that "Lots are not so large that they seem to be able to be further divided to exceed the maximum allowed density of the site in the future." Staff concluded the proposed property line adjustment met the purpose of the lot dimension standards because even if the larger lot in the future were partitioned into two lots, that would total three lots on the original site, which did not exceed the maximum density for the original site.
LU 06-144686 LDP. The administrative decision approved a land division. Staff had found that 33.635.100 Clearing and Grading did not apply, and did not address the issue in the administrative decision. The hearings officer found that it always applies. But neither the appellant nor any other party raised the issue, so the prodedural defect did not prevent approval of the decision. The hearings officer also found that technical or scientific measurements are far more reliable evidence than anecdotal evidence.
Nonconforming status:
LU 08-138536 NE. In March of 2008, the City of Portland issued a citation to a property owner for the hanging of a 1,200 square-foot banner from the south-facing wall of a building on Capitol Hwy. The city took the position that the banner violated several sections of the city code, including one section providing that signs in the general commercial zone cannot be larger that 200 square feet.
The wall faces Barbur Blvd and is very visible to occupants of cars, so it's a good place from which to display ads. There is still a banner hanging from the wall. This writer does not know whether the current banner is the same one subject to the citation. The current banner displays a Verizon ad that promotes a Blackberry electronic device.
An applicant, apparently on behalf of the property owner, then filed a land use case requesting a determination that the existing painted pattern on the wall was a painted wall sign that had legal nonconforming sign status, i.e., it was "grandfathered." The second part of the applicant's argument, not addressed in the land use case, was that the banner was in turn a permitted changing of permanent sign face, i.e., the painted wall sign.
To get a "sign" recognized as a legal nonconforming sign, an applicant has to show:
1) That the sign has not been moved, structurallly altered, or increased in size since November 17, 1998; and
2) Either that the sign existed before November 18, 1998 or that the sign would have been allowed when established.
In the administrative decision, the city ruled against the applicant. The administrative writer found first that a fascia sign had been attached to the south wall of the building, and that that constituted a structural alteration. The writer further found that although the painted pattern on the wall did exist before November 18, 1998, it was so difficult to discern from a distance that it failed to meet the definition of a "painted wall decoration," and therefore was not a sign at all.
The applicant appealed the administrative decision, a hearing was held, and the hearings officer overturned the administrative decision, finding that the fascia sign did not constitute a structural alteration and that the painted pattern on the wall did meet the definition of a "painted wall decoration".
History is relevant here, and there is a good synopsis of history in a recently issued draft for the Original Art Mural Project. As early as the 1980's, Portland exempted murals from the city's sign regulations. In 1991, the city began distinguishing between arty murals called "painted wall decorations," which remained unregulated, and painted wall signs, which conveyed a message, and were regulated. In 1998, AK Media successfully sued the city, arguing that the arty mural exemption was unconstitutional because it regulated speech according to content, i.e., it favored artistic speech over commercial speech. November 18, 1998 is significant because that's when the city had to drop the exemption and start treating all murals as signs. But "painted wall decorations" existing before that date were entitled to get nonconforming status, i.e., were "grandfathered" from the new regulatory control. In this case, the applicant was seeking confirmation of that status for the painted pattern on the south-facing wall.
Although they came to opposite conclusions, both the administrative writer and the hearings officer wrote thoughtful and well-reasoned decisions. On issue 1) above the hearings officer disagreed with the administrative decision, ruling that the south-facing wall did not meet the legal definition of a "sign structure." So attachment of the fascia sign did not structurally alter the wall painting's sign structure. The ruling was legally correct but implied that the wall painting had no structural support, as if paintings can be painted into thin air.
The more interesting discussion was on issue 2). Before the 1998 lawsuit, "painted wall decorations" were defined in part as "Displays painted directly on a wall which are designed and intended as a decoratiive or ornamental feature." The surface of the south-facing wall has on it a painted pattern that includes rectangles with intersecting horizontal stripes against a lighter colored background. Both the administrative writer and the hearings officer found that the pattern existed before November 18, 1998, although apparently by March of 2008, the pattern was repainted so that the contrast between the rectangles and stripes and the background was not as great.
Although conceding that the painted pattern did exist before November 18, 1998, the administrative writer then concluded that the painted pattern never met the definition of a "painted wall decoration." So it was never an arty mural, just a pattern, and could not become a grandfathered sign. It's surprising that there was a lack of evidence on what criteria the city used in the 1990's to determine whether a wall painting was a "painted wall decoration." There was some thin evidence that the painted pattern did not meet the city's criteria: it had not been included in an Official Sign Inventory. The writer also noted that the painted pattern was difficult to detect from the distance from which it would be typically viewed. But that was based on a current observation of the wall, after the repainting that apparently softened the contrasts.
The hearings officer, looking at photos of the original painting , simply ruled that the painted pattern met the definition of "Displays painted directly on a wall which are designed and intended as a decorative or ornamental feature." The problem is that the ruling is so expansive that any paint job on any structure in Portland could fit the definition of a "painted wall decoration." Painting is always decorative. The hearings officer in his conclusions conceded that most reasonable persons would not consider the painted pattern to be a sign.
As noted above, neither the administrative decision nor the heaings officers' decision addressed the second part of the applicant's argument, that a banner hanging in front of the painted pattern, now treated as a sign, constitutes a permitted change to that sign. At the time of this writing, the city has not taken a position on that argument.
Tree Reviews
LU 05-148202 TR. Applicant proposed removing two mature trees protected by a tree preservation plan, and, in mitigation, replacing them with five smaller, immature trees. The administrative decision approved the proposal and the neighborhood association appealed. Applicant had to show that his five-tree proposal would better meet the purpose of the tree regulations (buffering of noise, etc.) than the existing two trees. The neighborhood association apparently argued the testimony of the applicant's expert witness was insufficient and that five small trees were not as good as two big trees.
The hearings officer affirmed the administrative decision, ruling, inter alia, that 1) the subjective opinion of the applicant's expert witness was enough to prima facia meet the applicant's burden of proof, and that quantifiable evidence was not necessary, and 2) that the five-tree proposal should be compared against the existing conditions from the time the five trees would be mature.