Compiled from development review and other notices. Posted March 10, 2010.
Pre-application conferences: none
Proposals:
LU 10-104065 LC. Applicant seeks approval to consolidate two lots in preparation for a street vacation, at 4700 SW Council Crest Dr, in SWHRL.
LU 09-164257 DZ. Applicant seeks design review approval for conversion of a warehouse to a child care facility, at 3325 SW Moody Ave, in South Portland.
LU 10-109842 AD. Applicants propose to construct a house on a vacant lot and request an adjustment to allow the garage to be located closer to the street lot line than the street-facing wall of the house, at 8954 SW 5th Ave, in Collins View.
LU 10-108392 EN. Applicants proposed to construct a house on a vacant lot and seek environmental review approval for removal of trees, at the vacant lot immediately south of 5128 SW Northwood Ave, in Hillsdale.
LU 10-112683 AD. Applicant proposes to construct new screening around a garbage collection area and seeks an adjustment to increase the allowable height of screening in the first ten feet from the front property line, at 3202-3236 SW Marigold St, in Multnomah.
LU 10-111040 DZ. Applicant Mittleman Jewish Community Center seeks design review approval to allow the existing tennis court cover to remain for an additional three years, at 6651 SW Capitol Hwy, in Hillsdale.
LU 10-110153 AD. Applicant proposes to construct an addition to a house and requests an adjustment to increase allowable building coverage, at 2612 SW Talbot Rd, in SWHRL.
LU 09-178316 LDP PD. Applicant proposes to divide a site into two lots, and also seeks planned development review approval to allow the lots to be narrower than standard widths, at 5008 SW Taylors Ferry Rd, in Crestwood.
Decisions:
LU 09-123427 AD. Adustment approval to reduce building setbacks, at 2640 SW Montgomery Dr, in SWHRL.
LU 09-100459 AD. Adustment approval to exceed building coverage standard, at 2135 SW Laurel St, in SWHRL.
LU 09-175824 AP LC. Approval of partition amendment to remove conditions of approval, and of lot consolidation of all three lots, at 2031 SW Stephenson St, in Arnold Creek.
LU 10-106192 AD. Regarding conversion of a garage to studio space, adjustment approval to allow the structure to remain with a zero setback, at 5908 SW Nevada Ct, in Maplewood.
LU 10-106338 DZ GW. Design and greenway review approval for a new entry to the Willamette Wharf Building, at 4640 SW Macadam Ave, in South Portland.
LU 09-178304 AD. Adjustment approval for increase in maximum allowable lot area as a result of a property line adjustment, at 5008 SW Taylors Ferry Rd, in Crestwood. See related case, LU 09-178316 LDP PD.
Public hearings (at 1900 SW 4th Ave, unless otherwise noted):
LU 09-180429 DZ. Applicants State of Oregon and Shriners Hospital For Children seek design review approval for exterior alterations to the Shriners Children's Hospital, at 3101 SW Sam Jackson Park Road, in Homestead. Hearing is scheduled on March 18, at 1:30 pm, Room 2500A.
Notable cases:
The following reflects the opinion of Leonard Gard and is 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.
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 the 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.