and submitted November 30, 2018.
Use Board of Appeals 2017119, 2017120
A. Richter argued the cause for petitioners. Also on the
brief was Bateman Seidel Miner Blomgren Chellis & G ra m,
Timothy V. Ramis argued the cause for respondents. Also on
the brief was Lauren A. King.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: Petitioners seek review of a Land Use Board of
Appeals (LUBA) order affirming the City of Portland's
decision to grant design review approval for a seven-story,
mixed-use building proposed by intervenor. Petitioners
challenge (1) the city's interpretation and application
of the city code "better-meets standard" for
allowing design standard modifications, (2) the city's
[296 Or. 249] explanation of its better-meets determination
as lacking substantial reason, and (3) the city's
interpretation and application of one of the design
guidelines to the proposed development. Held: (1)
The city's interpretation of the better-meets standard is
plausible and entitled to deference, and, under that
interpretation, the city's application of the standard
complied with the city code, (2) LUBA correctly applied its
standard of review in determining that the city's
explanation was sufficient, and (3) the city's
interpretation of the design guideline is plausible and
entitled to deference.
Or.App 250] ARMSTRONG, P. J.
land use case, petitioners seek review of a Land Use Board of
Appeals (LUBA) order affirming the City of Portland's
decision to grant design review approval and a master plan
amendment for a seven-story, mixed-use building proposed by
intervenor (we refer to the city and interve-nor,
collectively, as respondents). On review, petitioners raise
three assignments of error, challenging the city's
interpretation and application of "better meets" in
Portland City Code (PCC) 33.825.040 and of a master plan
design guideline to the proposed project. As explained below,
because we conclude that LUBA's order was not
"unlawful in substance," ORS l97.85O(9)(a), we
the relevant facts from LUBA's order, which the parties
do not dispute on review:
"The subject property is the western half of Block 290
(Block 290 West), within the ConWay Master Plan (CMP) area of
the city's Northwest Plan District. The site is zoned
Central Employment (EX) with a Design Overlay zone.
Development within the CMP is subject to the city's
code-based design review standards and guidelines, but also
standards and guidelines within the CMP. Under the applicable
CMP design standards, building height on Block 290 West is
limited to 77 feet, except the southwest corner of Block 290
West, which is limited to 47 feet.
"The CMP encompasses 17.49 acres and includes a number
of 200 by 460 square foot blocks that are generally planned
under the CMP and Northwest District Plan for redevelopment
to mixed uses, including high-density residential uses. The
CMP calls for approximately 25 percent of the CMP area to be
set aside for public open space. Some of the required public
open space is to be provided on Block 290 West, which under
the CMP must include a 'publicly accessible, urban
square,' which the CMP describes as a 'significant
iconic urban place' that is fully accessible by the
public and surrounded by active retail space. A significant
portion of the remainder of required open space in the CMP
area will be provided by a proposed neighborhood park on the
eastern half of Block 290 (Block 290 East).
"Block 290 West is bordered on the south by N.W.
Pettygrove Street, and on the west by N.W. 21st Ave. On the
north, Block 290 is bordered by a privately-owned street,
[296 Or.App 251] N.W. Quimby Street. Under the CMP, N.W.
Quimby Street is to be improved for open space as a
'festival street,' serving primarily as a pedestrian
and bicycle connection. The CMP requires that development on
Block 290 West include a 'ground plane connection'
between the public square on Block 290 West and the
neighborhood park to be developed on Block 290 East.
"Intervenor applied to the city for design review
approval and proposed amendments to the CMP, along with five
'modifications,' a type of variance to CMP design
standards pursuant to PCC 33.825.040, in order to develop a
multistory residential building with ground floor retail and
below grade parking. The approved seven-story building is
U-shaped, with an opening facing south to N.W. Pettygrove
Street, and a proposed 16, 007-square-foot public square in
the middle. The southern tip of the west wing is
'clipped,' shortening the footprint of the west wing
by 31 feet and opening up the square to the corner of N.W.
21st Avenue and N.W. Pettygrove Street. As discussed below,
this clipped corner creates a small area of public open space
in the southwest corner of Block 290 West that requires a
modification to a CMP standard that requires the public
square to have at least 100-foot dimensions on each side. The
small portion of the public square is termed 'the
panhandle' in the decision and record. In earlier
designs, the southern end of the west wing had featured a
ground level private space available only to the
building's residents. The design ultimately approved by
the city moves this private amenity to a roof terrace on top
of the west wing.
"The proposed east wing includes a breezeway at ground
level to satisfy the requirement for a 'ground plane
connection' with the neighborhood park planned for Block
290 East. Intervenor also proposed a CMP map amendment that
would allow the building footprint to extend 15 feet into
Block 290 East, the western 45 feet of which would be
converted to a north-south, 45-foot wide pedestrian
access-way connecting Block 290 to development to the north.
For vehicular access to the underground parking garage,
intervenor proposed access via the northwest corner of Block
290 West and the western portion of the privately owned
'festival street,' N.W. Quimby Street.
"As noted, the proposed building required five
modifications or variances to applicable site-development
standards, three of which are at issue in this appeal. The
first [296 Or.App 252] modification is an increase in the
maximum building height from 47 feet to 57 feet in the
southwest corner of Block 290 West, to facilitate the private
rooftop club house and terrace at the southern end of the
west wing. The second modification is to approve the
panhandle portion of the public square in the southwest
corner of Block 290 West with dimensions less than 100 feet
per side. The third modification is to reduce the height of
the breezeway establishing the 'ground floor
connection' between Block 290 West and Block 290 East,
from 25 feet to a little over 14 feet.1
1 The other two modifications not directly
challenged in this appeal include (1) reducing the depth and
amount of retail fronting portions of the public square, and
(2) reducing the setback of the upper floors of the east
"Prior to filing its application, intervenor
participated in three design advice meetings held by the
city's design commission, which involved advisory review
of different design concepts for the proposed development. On
January 16, 2016, intervenor filed its applications, which
initially proposed four smaller buildings on Block 290 West.
In March 2017, intervenor modified the design to propose the
single U-shaped building with a clipped corner, described
above, that was ultimately approved. After holding several
public hearings, the design commission approved the proposal.
"Petitioner Northwest District Association (NWDA)
appealed the design commission decision to the city council,
which held a hearing on October 17, 2017. On November 8,
2017, the city council issued its decision denying the appeal
and affirming the design commission decision, with adoption
of additional findings."
city issued a detailed 46-page decision that walked through
each of the applicable community design guidelines and CMP
Design Guidelines, both of which apply to the project, and
made explanatory findings as to how the project design met
each of those guidelines. The city also separately addressed
each of the five modifications to the CMP Design Standards
and made explanatory findings as [296 Or.App 253] to why each
requested modification could be allowed under PCC
raised seven assignments of error on review to LUBA, and LUBA
affirmed the city's decision. On review to us,
petitioners raise three assignments of error to LUBAs order.
We address each of those assignments in turn.
their first assignment of error, petitioners focus, in the
abstract, on the meaning of "better meets" in PCC
33.825.040, which allows modifications to design standards
if, among other things, "[t]he resulting development
will better meet the applicable design guidelines."
Petitioners first argue that the city's implicit
interpretation of the better-meets standard is insufficient
for review and requires a remand to the city for additional
explanation. Petitioners next argue that, even if the
city's implicit interpretation is sufficient, that
interpretation is implausible and not entitled to deference
first conclude that the city's decision included
sufficient explanation to determine how the city was
interpreting and applying the better-meets standard in PCC
33.825.040. In its decision, the city explained, with respect
to each requested modification, how the overall design of the
building with the modification better meets the applicable
guidelines than if the design adhered to the particular
design standard at issue. Although the city did not [296 Or.App
254] expressly set out an "interpretation" of the
better-meets standard, the city's understanding of the
meaning of that standard and how it is to be applied is
readily discernible from the city's findings and
explanation. The city was not required to do more than that.
See, e.g., Green v. Douglas County,245 Or.App. 430,
438, 263 P.3d 355 (2011) ("[T]o be sufficient, an
interpretation must suffice to identify and explain in
writing the decisionmaker's understanding of the meaning
of the local legislation." (Internal quotation marks
omitted.)); see also Alliance for Responsible Land ...