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Sellwood-Moreland Improvement League v. City of Portland

Court of Appeals of Oregon

April 2, 2014

SELLWOOD-MORELAND IMPROVEMENT LEAGUE, RENATE POWELL and ANDREA MUIR, Petitioners below, and LISA BROWN, ANDREA RAVEN, DENISE KELSEY, GEORGE WOLTERS, PHYLLIS BOYER, CAREY SMITH, DEVON CARBERRY, TODD BENSON, SHARON BENSON, BETH KLUENDER, CASSANDRA ZIMMERMAN and MARY CHRIS MASS, Petitioners,
v.
CITY OF PORTLAND; BAMA DESIGNS; and MORELAND STATION APARTMENTS, LLC, Respondents

Argued and Submitted: January 9, 2014.

Land Use Board of Appeals 2013052.

Andrew H. Stamp argued the cause for petitioners. With him on the brief was Andrew H. Stamp, P.C.

Linly F. Rees, Senior Deputy City Attorney, argued the cause and filed the brief for respondent City of Portland.

Christe White argued the cause for respondents BAMA Design and Moreland Station Apartments LLC. With her on the brief were Steven Hultberg and Radler White Parks & Alexander LLP.

Before Wollheim, Presiding Judge, and Lagesen, Judge, and Schuman, Senior Judge.

OPINION

Page 550

[262 Or.App. 11] WOLLHEIM, P. J.

The Portland Design Commission (design commission) approved a design review proposal from respondents Bama Design and Moreland Station Apartments, LLC (collectively, Moreland) for a 68-unit apartment building in the Sellwood-Moreland neighborhood within the City of Portland (the Moreland proposal). The Moreland proposal included a transfer of 34 units from an adjacent site, known as a density

Page 551

transfer, to increase the maximum number of dwelling units that the applicant could develop at the site. Petitioners appealed the design commission's decision to the Land Use Board of Appeals (LUBA), and LUBA affirmed. On judicial review, petitioners advance two assignments of error. First, petitioners contend that LUBA erred in determining that Portland City Code (PCC) 33.120.205(E)--the city's general authorization of density transfers between sites in multi-dwelling zones--governed the density transfer in this case rather than PCC 33.537.110(B)--the city's authorization of density transfers between sites in the Johnson Creek Basin Plan District (JCB Plan District), where the proposed apartment building was located. Second, petitioners contend that LUBA erred in determining that, because the density transfer was governed by PCC 33.120.205(E), the planned-development review procedures and approval criteria in PCC 33.537.110(B)(4) and (5) were inapplicable. For the reasons stated below, we affirm.

Because it provides context for LUBA's decision and the parties' contentions on review, before turning to the facts, we describe the regulatory provisions that inform the legal issues in this case.

The city has five general categories of " base zones," two of which are relevant to this case--" multi-dwelling residential" and " single-dwelling residential" zones. For multi-dwelling zones, there are six different categories that are distinguished by maximum density amounts (the number of dwelling units or floor area ratio) and development standards. PCC 33.120.010(B). PCC 33.120.205(E) allows density transfers between sites in multi-dwelling zones, allowing the sending site to decrease and the receiving site to [262 Or.App. 12] increase its maximum density amounts. That regulation provides, in part, as follows:

" E. Transfer of density or FAR. Density or [Floor Area Ratio (FAR)] may be transferred from one site to another subject to the following:
" * * * * *
" 2. Maximum increase in density or FAR. In the RH and RX zones, an increase in FAR on the receiving site of more than 3 to 1 is prohibited. In all other R zones, an increase in the number of units of more than 100 percent of the receiving site is prohibited."

PCC 33.120.205(E)(2) (bold in original). In addition, PCC 33.120.205(E)(4) requires that density transfers must be between sites " within a block or between sites that would be abutting except for a right-of-way." Although multi-dwelling base zone regulations allow density transfers, the single-dwelling base zone regulations do not allow density transfers from sites or between sites in single-dwelling zones. See generally PCC 33.110 (single-dwelling residential zone regulations).

The city also has several plan districts, which " provide a means to modify zoning regulations for specific areas," and " address concerns unique to an area when other zoning mechanisms cannot achieve the desired results." PCC 33.500.010. The JCB Plan District regulation governing density transfers, PCC 33.537.110(B), is at issue in this case. That regulation provides:

" B. Regulations. Transfer of development rights between sites in the plan district is allowed as follows. 'Development rights' are the number of potential dwelling units that would be allowed on ...

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