Locke v. City of Portland

VICTOR LOCKE, Petitioner, v. CITY OF PORTLAND, Respondent.

LUBA No. 2017-061

LAND USE BOARD OF APPEALS OF THE STATE OF OREGON

December 19, 2017

FINAL OPINION AND ORDER

Appeal from City of Portland.

Christopher P. Koback, Portland, filed the petition for review and argued on behalf of petitioner. With him on the brief was Hathaway Larson LLP.

Lauren A. King, Deputy City Attorney, Portland, filed the response brief and argued on behalf of respondent.

RYAN, Board Chair; BASSHAM, Board Member; HOLSTUN Board Member, participated in the decision.

You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850. Opinion by Ryan.

NATURE OF THE DECISION

Petitioner appeals a decision by the city approving in part and denying in part an application to modify a prior city decision approving his land division application.

FACTS

Petitioner owns a 10,538 square foot lot on the south side of SE Madison Street, east of SE 122^nd Avenue and west of SE 127^th Avenue, which are the closest streets that intersect SE Madison Street. A vicinity map from Record 99 is included in the Appendix. The lot is approximately 75 feet wide along its SE Madison Street frontage and 140 feet deep. SE Madison Street between SE 122^nd Avenue and SE 127^th Avenue is a block that exceeds 1,250 feet in length and contains no connections between SE Madison Street and SE Market Street to the south. SE Madison Street is improved with 28 feet of paving within a 50-foot right of way. There is no curb or sidewalk along the subject property's frontage with SE Madison Street. A large tree sits on the property line between petitioner's property and the property to the east.

In 2015, petitioner received approval to divide his lot into two parcels (2015 Decision). Parcel 1 includes approximately 55 feet fronting SE Madison Street, and Parcel 2 is located to the south of Parcel 1 and includes approximately 12 feet fronting SE Madison Street. The land division that the city approved in 2015 requires petitioner to create and dedicate to the public a7.5-foot wide pedestrian pathway along the eastern boundary of the property for its length, terminating at the southern property line, which abuts an existing lot that fronts on SE Market Street to the south. Creation and dedication of the public pedestrian pathway allowed Parcel 2 to meet the front lot line requirement in Portland City Code (PCC) 33.611.200.D. of at least 30 feet, because Parcel 2 "fronts" the public pedestrian pathway for 62 feet. According to the 2015 decision, the public pedestrian pathway is a "street" as defined in PCC 33.910.030. Also according to the 2015 decision, Parcel 2 qualifies as a "through lot" pursuant to PCC 33.611.300 because it has frontage on two local service streets — SE Madison Street and the public pedestrian pathway. As a through lot, Parcel 2 can also be developed with a duplex, pursuant to PCC 33.110.240.D.¹

One condition of the 2015 Decision, Condition C.1, required petitioner to (1) dedicate to the city the 7.5-foot wide public pedestrian pathway along the eastern boundary line, (2) construct a 4-foot wide walkway and 3.5-foot wide landscape buffer along that public pedestrian pathway, and (3) construct improvements on the SE Madison Street sidewalk frontage.²

A different condition of the 2015 Decision, Condition A.1, required petitioner to dedicate right-of-way along SE Madison Street to the city. Condition A.1 provided that "[t]he applicant shall meet the street dedication requirements of the City Engineer for SE Madison and the new public pedestrian connection. The required right-of-way dedication must be shown on the final plat" Record 93. The 2015 Decision was not appealed.

In 2017, petitioner submitted an application to "[m]odify approval in file LU-14-173928 to revise condition on how public improvements will be addressed, applicant is proposing to pay the [Local Transportation Infrastructure Charge] LTIC fee in [lieu] of making improvements as suggested by [the Portland Bureau of Transportation] PBOT."³ Record 73. After public notice and review, the city issued a decision that modified Condition C.1 to allow petitioner to pay an LTIC fee instead of constructing improvements to the SE Madison Street frontage, but denied petitioner's request to modify the requirement in Condition C.1 to improve the public pedestrian pathway. This appeal followed.

MOTION TO FILE A REPLY BRIEF

Petitioner moves for permission to file a reply brief to respond to arguments in the city's brief that certain issues have been waived under ORS 197.763(1) and ORS 197.835(3). There is no opposition to the reply brief and it is allowed.

MOTION TO TAKE EVIDENCE

Petitioner moves to take evidence not in the record consisting of emails between the city's planning staff and petitioner. The emails are dated after the date of the city's decision and are petitioner's request for copies of city agency responses to petitioner's modification application and the city's response to petitioner's request.

The city opposes the motion, arguing that petitioner has failed to explain why the motion should be allowed under OAR 661-010-0045. We agree with the city. OAR 661-010-0045(1) provides:

"Grounds for Motion to Take Evidence Not in the Record: The Board may, upon written motion, take evidence not in the record in the case of disputed factual allegations in the parties' briefs concerning unconstitutionality of the decision, standing, ex parte contacts, actions for the purpose of avoiding the requirements of ORS 215.427 or 227.178, or other procedural irregularities not shown in the record and which, if proved, would warrant reversal or remand of the decision. The Board may also upon motion or at its discretion take evidence to resolve disputes regarding the content of the record, requests for stays, attorney fees, or actual damages under ORS 197.845."

Petitioner argues that the emails are "necessary to * * * resolve a disputed factual allegation concerning a defect in the Notice the city issued of theproposal that warrants a remand or reversal of the City's decision." Motion to Take Evidence Not in the Record 1. However, petitioner's petition for review does not allege that the city committed a procedural error or otherwise include an assignment of error that alleges "procedural irregularities not shown in the record and which, if proved, would warrant reversal or remand of the decision." OAR 661-010-0045(1). Accordingly, we agree with the city that there are no grounds under OAR 661-010-0045(1) to grant the motion, and it is denied.

FIRST ASSIGNMENT OF ERROR

Petitioner's first assignment of error is:

"The City erred in failing to amend Petitioner's preliminary plan approval to eliminate the exaction of real property after removing all obligation to construct sidewalk improvements." Petition for Review 8.

The petition for review describes the assignment of error in more detail as "[t]he first assignment of error challenges the City's imposition of a condition that Petitioner dedicate real property as a condition to obtaining a permit." Petition for Review 10. According to petitioner, in approving petitioner's requested modification to the condition requiring petitioner to construct improvements to the SE Madison Street sidewalk, the city should have also modified the requirement in Condition A. 1 that requires petitioner to dedicate right-of-way along SE Madison Street.

The city responds that petitioner is precluded under ORS 197.763(1) and ORS 197.835(3) from raising an issue regarding the requirement in ConditionA.1 in the 2015 Decision that he dedicate right-of-way along SE Madison Street. ORS 197.763(1) provides:

"An issue which may be the basis for an appeal to the Land Use Board of Appeals shall be raised not later than the close of the record at or following the final evidentiary hearing on the proposal before the local government. Such issues shall be raised and accompanied by statements or evidence sufficient to afford the governing body, planning commission, hearings body or hearings officer, and the parties an adequate opportunity to respond to each issue."

Relatedly, ORS 197.835(3) provides that in a LUBA appeal "[i]ssues shall be limited to those raised by any participant before the local hearings body as provided by ORS 197.195 or 197.763, whichever is applicable." The city argues that petitioner failed to request a modification of the dedication that is required by Condition A.1 during the proceedings that led to the challenged decision, or otherwise raise any issue during those proceedings challenging the requirement in the 2015 Decision that he dedicate right-of-way along SE Madison Street.

OAR 661-010-0030(4)(d) requires a petitioner to identify in a petition for review which issues were not initially raised at the local or state levels and to explain why preservation is not required:

"[In the petition for review, petitioners must] set forth each assignment of error under a separate heading. Each assignment of error must demonstrate that the issue raised in the assignment of error was preserved during the proceedings below. Where an assignment raises an issue that is not identified as preserved during the proceedings below, the petition shall state why preservation is not required. * * *"

Petitioner provided the following statement in a section of the petition for review entitled "Preservation of the Argument:"

"Petitioner adequately preserved his argument below because, pursuant to ORS 197.835(4), he was not required to raise arguments related to this assignment of error." Petition for Review 8.

In his reply brief, we understand petitioner to take the position that he is allowed to raise the issue raised in the first assignment of error pursuant to ORS 197.835(4)(b). ORS 197.835(4)(b) allows new issues to be raised for the first time at LUBA if the city "made a land use decision * * * which is different from the proposal described in the notice to such a degree that...