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A recent case decided by the Oregon Land Use Board of Appeals says a lot about our land-use system 鈥� perhaps too much.

Richmond Neighbors for Responsible Growth v. City of Portland started out as a challenge to project design and the parking requirements (or rather lack of such requirements) for a multifamily project at Southeast 37th Avenue and Division Street. The site was zoned for the multifamily use.

Some neighboring residents formed Richmond Neighbors for Responsible Growth to object to the project. RNRG wanted input into design of the site and structure to assure the 鈥渓ivability鈥� and 鈥渃haracter鈥� of the area. Some neighbors also wanted fewer apartments.

The city treated the application as one in which it had no discretion but to grant the application for 81 units. This development was one of several multifamily projects now proposed in Southeast Portland.

The city moved to dismiss RNRG’s case, contending that, under state law, LUBA could not review building permit applications based on clear and objective standards. LUBA, however, determined that not all the standards were clear and objective, and there was discretion that could be used to determine the height of this apartment building on a site with two different zoning designations. That discretion in determining the height led LUBA this past November to conclude that it had jurisdiction to hear the case.

Once the case could be heard, RNRG was faced with how to make that case. The final order doesn’t mention any challenges to the city’s lack of required on-site parking, as that standard involved no discretion.

The one thing RNRG could challenge was the city’s interpretation of an obscure requirement that the 鈥渕ain entrance鈥� for each tenant space be within five feet of the facade facing Division Street and, in fact, face that street. LUBA rejected the city’s interpretation of this requirement that it only applied to nonresidential uses as contrary to the text of the regulation. Because the application would have to be revised substantially to meet the city’s code, LUBA reversed (rather than remanded) the city’s decision.

Let’s take a step back and consider this case against the stated RNRG concerns. While it is possible that the location of the entrance may have been one of the neighborhood association’s concerns, the LUBA decision did not deal with other stated concerns over density, design or parking. The proxy outcome here allows the parties to fight another day, when there may be different regulations and different regulators. That may well be what RNRG wanted.

Portland is reconsidering its parking policy, and the Planning and Sustainability Commission will make recommendations to the City Council that will likely increase the minimum parking standards 鈥� even in those areas not served well by public transit. There are, however, a number of difficult questions to be faced, such as:

1. Are the parking and design issues raised a proxy for other concerns and a mask to fight against affordable and rental housing?

2. How does the city address the Americans with Disabilities Act where multifamily buildings are allowed with no parking?

3. To what extent is there a parking problem in multifamily areas of Portland?

4. What happens when parking requirements are scaled back or done away with because of transit availability, and that availability is itself reduced or done away with or does not equate to anticipated ridership?

5. What are the effects of discretionary design standards on affordable housing? (State law currently prohibits discretionary design standards for 鈥渘eeded housing,鈥� which includes most housing in Portland.)

Portland City Council will review the commission’s recommendations and make any code changes it feels are needed. However, under the relatively short time frame it has provided to deal with these amendments, it is unlikely that these issues will be resolved. Until then, we can expect the proxy war over land uses in residential neighborhoods like Richmond to continue.

Edward Sullivan is an owner in the Portland office of Garvey Schubert Barer. Contact him at 503-228-3939 or at [email protected].

Carrie Richter is an owner in the Portland office of Garvey Schubert Barer. Contact her at 503-228-3939 or at [email protected].