The week of Aug. 8 was a rarity for Portland City Council, but some are concerned it may be a harbinger of things to come.

Two appeals of decisions by the city’s Design Commission landed on the City Council’s docket that week. While a quirk of scheduling was responsible for the timing of two cases in one week, the situation highlights what appears to be a growing tendency for architects and developers to appeal design decisions when they aren’t satisfied with the outcome.

In the past eight months, for example, the City Council has seen four appeals of Design Commission decisions and one appeal of a decision by the Historic Landmarks Commission.

It’s a trend that hasn’t gone unnoticed members of those commissions

“We have gone years and not had an appeal,” said Portland Design Commissioner David Wark. “There are definitely more appeals.”

Because the Design Commission is the body that oversees many of the design decisions that happen in some of the fastest-growing areas of the city, it also has the largest number of cases that get appealed. Appeals can be filed by the applicant, owner or those who have testified at a hearing either in person or in writing.

The appeals run the gamut from appealing an entire decision to appealing conditions put on an approval.  Decisions can also be appealed by neighborhood groups looking to stop or at least slow down a project.

There are many reasons cited for the increased numbers of appeals. The number of cases the commissions see has increased as Portland’s construction boom has picked up speed.

“I don’t think we are seeing a flood gate in terms of appeals,” said City Commissioner Dan Saltzman. “We are seeing more appeals because we have more projects.”

From the perspective of developers, several issues are driving the surge in appeals. Some developers feel that the commissions are taking too long to approve projects, changing guidelines from hearing to hearing and making arbitrary decisions that reduce height and density on projects. The longer it takes to receive approval, the more it costs developers. So rather than adjust a project, they decide to take decisions they don’t like directly to the City Council via an appeal.

Landon Crowell, a developer who appealed a Design Commission denial of his Ankeny Apartments project, said he believed continually changing criteria hurt his project.

“Ankeny Apartments was more about stopping the development,” he said. “(They were) spinning the design team around in circles to exhaust financial resources by changing the requirements each hearing.”

The project went through five design hearings before being denied by the Design Commission in a unanimous vote. Crowell then appealed the decision to City Council, which held four hearings of its own in an attempt to reach an agreement between neighbors who opposed the project, Bureau of Development Services staff, and Crowell and his development team.

In the end, City Council overturned the Design Commission’s denial and allowed the project to move forward. Several City Commissioners voiced concerns about the way the process worked.

“In future applications that go to the Design Commission,” said Commissioner Amanda Fritz, “I hope that things will get resolved there before five times because this is not the best use of the council’s time.”

City Council has to balance letting the commissions do their jobs and providing a fair process for developers that disagree with a decision, according to Saltzman.

“For the most part, most developers work with the Design Commission,” he said. “There are disagreements and it is fair and appropriate to bring those to council.”

It isn’t just denials that are being appealed. TMT Development appealed a Design Commission approval for the renovation of the Studio Building and Guild Theater because the development company didn’t like conditions related to the replacement of windows in the project. The required changes would have pushed up the project cost by $105,000, according to TMT Development President Vanessa Sturgeon

Upon appeal, the City Council struck down the conditions by a 4-1 vote. In his prevailing argument, Mayor Ted Wheeler said a needed renovation of an old building shouldn’t be endangered by what a majority of the commissioners considered a minor improvement.

Saltzman agreed.

“I think you have to weigh (the cost of the change) against our city code,” he said.

Members of the Design Commission, however, point out that while those types of decisions by City Council can help move a needed project forward, they also increase the incentive for developers to appeal decisions.

“The (City Council) needs to let the (Design Commission) be its voice,” Wark said. “It’s kind of a self-fulfilling prophecy; the more appeals they (uphold), the more appeals they will get.”

The Design Commission has a different set of guiding principles than other city agencies and bureaus, according to Wark. As a result, City Council has the freedom to consider issues that the Design Commission can’t turn to in its decision-making process.

“Aspects like tenant standard and pro-forma are not in the purview of the (Design Commission),” Wark said. “We just look at it through the guidelines.”

Even when all parties at a design review or historic landmarks hearing agree on a decision about a project, it can still be appealed by a neighbor or neighborhood association dissatisfied with the decision.

The Goose Hollow Neighborhood Association, for example, appealed the approval of the Press Blocks project that would replace the former Oregonian building with three new buildings. The association was concerned by the height of the project’s residential tower, but saw its concerns shot down by City Council.

Given the city’s relatively open appeals process, reducing the number of appeals that land in front of City Council may be tough to accomplish. However, some solutions are already being tried.

Julie Livingston, who recently stepped into the role of chairwoman for the Design Commission, plans to start getting applicants’ views of conditions on the record. She said she and other Design Commission members were caught by surprise by TMT Development’s appeal of the Studio Building and Guild Theatre decision because the development team did not express reservations about the condition during the design review hearing.

“When we are negotiating conditions, I am going to check in with the applicant and I want the applicant to state on the record, ‘I am OK with this,’” Livingston said. “If it goes to (City Council), I want to be able to say that the applicant was OK with that.”

Changes coming to the design guidelines as part of the Design Overlay Zone Assessment (DOZA) may also help clear ambiguity.

“Some of the (current) guidelines are pretty general and pretty vague,” Saltzman said. “I hope it will put more flesh on the bones and define how it should be applied. I am hopeful it will help.”

The Portland Bureau of Development also is adopting a new process of problem solving that may help mitigate the number of appeals.

Ultimately, though, Design Commissioners say City Council has the most control over how many appeals it sees.

“The whole process can only happen with the political support of the city,” Wark said. “(If the City Council wants fewer appeals) the City Council needs to be consistent with its support of commission decisions.”

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The Portland City Council on Wednesday approved an appeal by TMT Development to remove conditions attached to the Design Commission‘s approval of a building rehabilitation.

Though the firm’s plans to renovate the Studio Building and Guild Theatre, at 901-919 S.W. Taylor St. in downtown Portland, were approved by the Design Commission, it added requirements tied to window replacements. But the City Council voted 4-1 to strike down those conditions.

“This has been before (the Design Commission) twice,” Portland Commissioner Dan Saltzman said. “My best judgment is there is a lot of effort on this and it makes me support removing the conditions.”

The project team’s top concern, and a major factor in the council’s decision, was the added cost that the conditions would impose.

The Design Commission wanted developers to use a clearer glass, and add interior muntins and a spacer bar to the aluminum windows that were selected. Those changes would have increased the project cost by $105,000, according to TMT Development President Vanessa Sturgeon.

“There is virtually no discernible visual difference between what we proposed and what the commission wants us to do,” she said. “That is a budget buster.”

The glass requested by the Design Commission has approximately 4 percent less tint and is brighter than the glass planned by the project team. The replacement of 192 windows is part of an $8 million restoration effort. Other changes requested by the commission that were not appealed added more than $70,000 to the cost, according to Sturgeon.

On top of economic arguments, the project team argued that changes to the spacers and muntins would not be seen from the outside. Therefore, it stated, the Design Commission lacked authority to make that requirement.

A big concern of councilors was adding cost to what they see as a relatively minor improvement.

“The building, though grand she is, is an old dump,” Mayor Ted Wheeler said. “We have someone that is willing to (rehabilitate) it and we are quibbling over 4 percent?”

Originally, the Design Commission had urged the building’s owners to rehabilitate the building’s existing steel windows. Once it became clear that could not be accomplished and still meet energy code, the commission’s goal became to ensure that replacement windows resemble the original ones as closely as possible.

“Generally there is a lot of movement toward the clearest glass possible on historic buildings,” Design Commissioner Julie Livingston said. “We thought that the muntins and clear glass were OK with the owner. Had we known, we would have had more conversations.”

Overall plans to renovate the building include replacing the windows, performing cosmetic improvements, making changes to comply with the Americans with Disabilities Act and installing new climate control systems.

Portland Commissioner Amanda Fritz, who cast the lone dissenting vote, said she felt unqualified to overturn a Design Commission decision on an issue that would largely affect the essence of the structure.

“I don’t want us to become the default design review commission,” she said. “I feel I don’t have information to vote against the Design Commission.”

One area of broad agreement was that projects like the Studio Building and Guild Theatre rehabilitation should go before the Historic Landmarks Commission instead of the Design Commission. The Studio Building and Guild Theatre are listed on Portland’s Historic Resource Inventory (HRI), but not on the National Register of Historic Places. Currently, a building listed on the HRI does not go before the Historic Landmarks Commission unless it has other historic designations.

“Buildings on the HRI should be reviewed by Landmarks – I agree with that,” Livingston said. “This building should be looked at by Landmarks. They bring a level of authority that Design Commission may not.”

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