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Tuesday, August 22, 2006

Perfectly legal

If you wondered how aggressive developer weasels can wreck Portland neighborhoods while the city planning bureaucracy sits on its hands, check out this excellent story in today's Trib. Even the gangsters at Tri-Met are in on the act.

And don't miss the photo of two of the greaseballs who are getting rich by sucking the character right out of the Rose City. Nice hats, boys.

Comments (1)

Don't forget the Lizards of Ooze who hide behind these rapes.

Posted by: Abe at August 22, 2006 09:18 AM

I especially like the $4M worth of land they're giving away for $1.00 to their developer cronies. It's "reasonable" from TriMet's perspective.


Posted by: Sasquatch at August 22, 2006 09:28 AM

I admit coming around to many of Jack's points made about the condo situation in Portland...

What makes me cringe is that these types of deals undermine the credibility of all planning endeavors, many of which are legit and needed. My point is that 'smart growth' has been bastardized to mean "all condos, all the time" as some here would suggest. This city needs apartments, for all income levels, and any assistance for condos should be diverted to this need immediately. (What's wrong with achieving density with 3-5 story buildings?) But they're making it hard not to throw out the baby with the bathwater... oversight anyone?

As for the sightline adjustments, if the condo in question is the one under construction near that ugly roundabout, it doesn't seem to have the visual impact they say. Directly behind it is that giant gully with the Vista Bridge, everything else is obsured anyway or heavily forrested. I may be wrong, but that's my educated opinion.

Posted by: TKrueg at August 22, 2006 09:45 AM

Wait 'til they want to put one a block away from you.

Posted by: Jack Bog at August 22, 2006 09:52 AM

Perhaps the PDC and city council could sell the air space between their ears.

Posted by: tom at August 22, 2006 09:55 AM

This is not empty-headedness. This is much more like organized crime.

Posted by: Jack Bog at August 22, 2006 09:58 AM

One of the most remarkable statements in the Trib articles was by Jillian Detweiler, a Tri-Met senior land development planner. He said, in part, that..."federal rules don't require us to sell to the highest bidder for any use."

Apparently Mr. Detweiler has forgotten that not only should he follow federal rules, he should make sure the public receives a fair shake when selling its assets. This didn't happen here...not a chance when a $2-3 million dollar property is given away for $1. But these kinds of sham deals will continue to happen unless people hold the Tri-Met directors and the governor accountable for them. Unfortunately, citizens are so detached from and uninterested in the workings of their governments these days that no accountability will occur here and Mr. Detweiler will probably be the head of the Portland Planning Bureau in a few years.

Posted by: Doug in SW at August 22, 2006 10:23 AM

Can I use it as an example of an arm's length transaction to establish value for the tax assessor's purposes and as comparable property to determine appraisal value of other property?

It remains compatible with the legal mess called M37. (Every general law today is instead accomplished via contracting, at variance with the equal privileges and immunities clause, like the Class Action styled M37 that impermissibly intrudes into the judicial branch's function, and fully divorces the rights that go with land forever from the land itself.) Imagine if government were to use such value in response to a demand for compensation for all the M37 claimants -- one clean crisp paper dollar.

There is anarchy, this is elementary; and the professionals that stubbornly created it have no incentive to admit it for they would be revealed as richer-fools. I won't hold my breath. How about an EEG?

Posted by: Ron Ledbury at August 22, 2006 10:23 AM

The more things change, the more they remain the same...
Anybody but us over 50 crowd remember the Memorial Coliseum gansters from the 50's and 60's?
And how about that very short freeway ramp at NW Glisan, right next to what was then the M&F warehouse??? I know there are lots more of these types of scams and crooked deals.
It may not matter much if the Bushies decide to nuke Iran.
How's that for a depressing thought!
I will encourage Pat Gardener in her strugggle though. She is an excellent watchdog for the real people of the city.

Posted by: Anne at August 22, 2006 10:28 AM

You wonder if the housing market isn't about to cycle out of a condo friendly environment and into an apartment friendly environment...

The interest rate rise has increased demand for apartments such that apartment owners have pricing power and ability to raise rents for the first time on over a decade, while obviously the cost for a mortgage for a $500,000 1200 sq ft condo has risen to well above the monthly rental of a similarly sized apartment.

Posted by: atlanta scott at August 22, 2006 10:34 AM

There is an absolute shortage of apartments in Portland, and it's only going to get worse as the housing market stagnates.

The only affordable condos are the ones from converted apartments... while providing affordable housing for buyers, it leaves less affordable housing for renters. The building cycles are so reactive that new apts will only be built when the need increases, but by the time they open, the need may have receeded. We're seeing that in the condo market right now.

Posted by: TKrueg at August 22, 2006 10:47 AM

JK: Can anyone explain why density is desirable. It costs more than "sprawl". It increases traffic congestion. It increases pollution where people live. It looks awful. It turns our streets into canyons.

Secondly, how many of these new monoliths will be tax exempt, for high density in the city core or TOD.


Posted by: jim karlock at August 22, 2006 02:52 PM

So Trimet is selling the land for $1.Well maybe next time the school district needs money they can work a deal with Trimet.
Hey maybe Trimet's directors should be elected instead of appointed.

Posted by: Michael at August 22, 2006 03:34 PM

Tribune: The $1 price for the land is reasonable, Detweiler says, when viewed from TriMet's perspective.
JK: You don't suppose the developer is best friends with some Trimet hack, or married to one? Hope the FBI is reading too.

Tribune: The transit agency, Detweiler says, wants riders. "When we provide a write-down we are investors in a project, and we receive our return through transit fares," she says.
JK: Trimet DOES NOT MAKE IT UP IN FARES, They lose money on every rider. Look at the facts: taxpayers pick up 81% of Trimet's expenses.

More riders don't ever have hope of curing Trimet's financial dependency on the public. Only if Trinet increased their ridership by a factor of five, without increasing expenses, could they get enough farebox revenue to breakeven. Of course there would be an increase in expenses, suppose they were able to be twice as efficient as now in serving the added riders, then it would take a ten-fold increase in ridership to break even. If they were twenty five percent more efficient, then they would require a ridership increase of twenty times. This is approaching having all travel in the Portland area on Transit and they still could not break even. In fact the massive subsidies required would probably bankrupt the region.


Posted by: jim karlock at August 22, 2006 04:04 PM

Tribune: Jerald Powell, who as chairman of the Goose Hollow Foothills League's planning committee opposes the Allegro's current configuration, estimates that the approximately 27,000 square feet of property that TriMet proposes to sell to the Allegro developers would be worth about $4 million at today's market rate.
JK: Let's look at some numbers:
Lets assume 100 condos.
Assume that ½ of the millionares will actually give up their BMWs and buy a Tranist pass:

Annual Trimet pass yields $814 for Trimet.
Total Trimet revenue: $814 x 50 unit = $40,700 per year.
Assume a 25 year income stream. Net present value at 5% is: 14.093945 x 40,700 = $573,625

Invest $4 million, get back $573,625! Another brilliant government agency financial move.


Posted by: jim karlock at August 22, 2006 05:16 PM

A violation of the first rule of government spending:

Why build one publicly funded convention center hotel in your city...

When you can have TWO at the same price?

Dear God! A convention center hotel built with private investors bearing all the risk! I guess even in Bush country, they've learned from building one the stupid way the first time.

Posted by: SR Hadden at August 22, 2006 05:48 PM

A sad thing is that transferring development rights is actually a legitimate planning tool that might be used to, say, preserve mobile home parks, where elderly residents have built community, as non-conforming uses. When government becomes a "player" instead of a regulator, watch out!

Posted by: Cynthia at August 22, 2006 08:20 PM

One of the most remarkable statements in the Trib articles was by Jillian Detweiler, a Tri-Met senior land development planner. He said, in part, that..."federal rules don't require us to sell to the highest bidder for any use."

It's Ms. Detweiler. And what the newpaper article did not point out was that she was on Commisioner Charlie Hales' staff, when he was City Transportation czar. (Who left city government for far more money in the private sector promoting light rail and streetcars.)

It's a small world and all that, but the real issue for me is rather than Tri-Met giving away property to "promote" transit use, wouldn't not raising fares be a better strategy?

Posted by: Frank Dufay at August 22, 2006 08:29 PM

FYI A new condo building is going to be built on the SE corner of NE 15th & Hancock on the site of the Irvington Guest House. I think it's going to be 5 stories high, not sure.

Posted by: K at August 22, 2006 10:39 PM

It's really past time to either get Potter on the ball with this cr*p, or join the throngs of real people leaving town. Pretty soon, the jerks in the berets can have this place all to themselves.

Posted by: Jack Bog at August 22, 2006 10:43 PM

Cynthia -- "transferring development rights is actually a legitimate planning tool"

For a simple chess game style challenge consider these two pieces:

1 Fee Simple form of ownership, where rights that accompany land are forever attached to the land.

2 Rule Against Perpetuities setting out a time limit to personal contracts.

If a resident were to enter into a personal contract with government (as an exception to general law) related to "development rights," as if such rights are some how divorced from the whole scheme of real property rules, what happens to such rights at the expiration of the period considered the outer limit for a valid personal contract? It is an undefined void, as far as I can see it. While it may only be revealed many years out, beyond my lifetime, and even the lifetime of kids I may yet have (99 years), it nevertheless represents a void in the definition of rights at a future date.

Any one claiming to be a lawyer must be able to either offer some number 3 option to the simple concepts above. They could claim to reject 1 or 2 above, for some proffered reason. But to fail to see such an elementary conflict between 1 and 2 above, in the context of "development rights," resulting in the void in the rule of law would be grounds for me to assert that they lack sufficient legal reasoning skills to hold themselves out to the public as a member of the claimed learned profession. I am serious. I hate illogic, with a passion. (Maybe I like Dr. Spock, or his screen persona.) Perhaps I am too demanding.


The "jerks in the berets" are free to create their own non-profit entity any day they wish and solicit voluntary donations. That is, their jerkiness is not a problem at all with me. I actually like a notion of FlexWay. (I crossed paths with a public employee on Mt. Tabor the other day scooting along on a Segway.) The only problem is giving the sovereign power to compel payment of taxes to jerks of any stripe. That being said, we can let any jerk do almost anything they like, but only so long as they do so under the constraint of using only the taxes for the current year or two that corresponds to the time such jerks sit in office. It is just the bonds, and longer term special privileges/exemptions to taxation, that interfere with the ability of a new set of jerks to have a relatively clean slate to change direction and redefine the word jerk. That is, the problem isn't jerks (per se, as everyone is a jerk in someone else's eye), but primarily bonds that force future lovable jerks to pledge their love for prior jerks; at the risk of losing the confidence of the bond cabal (and special interest groups).

The dividing line is limited to being able to effectively change direction by replacing one set of jerks with another set of jerks.

It is unrealistic to think that Mr. Potter can offer any reasoned rebuttal or remedy on matters pertaining to some systemic fix. He does not have a clue. His call to support the kids has a ring of superficiality to it that it should jump out at people as if it were part of a MAD TV skit. That is how I see it. If he could identify and describe that his single biggest problem is dealing with the ghost of yesterday's jerks that would be an essential and necessary first step. It would indicate, also, that he would not want future jerks to have to deal with the jerkiness of his ghost. He is in over his head, as most anyone would be. The dual-tier nature of the proposal on safety worker pensions going forward is like a litmus test proof that he does not get it and that his ghost will live on.

Posted by: Ron Ledbury at August 23, 2006 08:30 AM

if the condo in question is the one under construction near that ugly roundabout, it doesn't seem to have the visual impact they say.

Thats a different project. This one hasnt been started yet. It is going to be up the street from there. From the article it sounds like its replacing the parking lot across the street from from the back of Mult. Athletic Club.

Posted by: Jon at August 23, 2006 10:15 AM

I guess it wouldnt be the back of MAC, that would be PGE Park...
The parking lot is the corner of 18th & Salmon.

Posted by: Jon at August 23, 2006 10:25 AM


The transfer of development rights would vest, just like a transfer of mineral rights. I got a A- in real property law and have taught it.
What burns me up is people who have the nerve to defame others based on THEIR illogical understanding of another's field.

Posted by: Cynthis at August 23, 2006 11:55 AM

And Ron,

By expecting you to understand anything outside of your own opinion, I think I am the one who is, perhaps, too demanding.

Posted by: Cynthia at August 23, 2006 12:27 PM

One more thing, Ron: Look up the doctrine of "severance". If you want to try to argue that centuries of case law are not relevant and that the police power under which zoning and planning are authorized is invalid (as some of the Oregonians in Action crowd does), do so from a position of knowledge and respect. I think I have been more than respectful to the strict property rights crowd, because I have seen some real abuses from coming from the 1000 fiends quarter that raise property rights issues. I get trashed for moderation. Therein lies a clue to the stagnation that plagues Oregon.

Posted by: Cynthia at August 23, 2006 01:03 PM


Your argument that "development rights would vest" is true, in part, but requires an examination too of to whom it vests.

M37 implicitly recognizes any restriction as vesting a right to the government, with the sole remaining inquiry as to whether someone was aware of the restriction at the time of purchase. (But random selection of a retroactive date for a described class to benefit from retraction seemed OK, which plausibly could be 100 years back too and applicable to all, and stripped of the payment option; as a description of an allowable future public policy choice. That is a summary of someone else's opinion, BTW.)

Suppose I as a potential M37 claimant sought neither to develop today nor seek compensation today but merely desired to farm. Ten years from today, if SB100 and related subsequent restrictions are simply repealed via a general law that is fully compatible with the equal privileges and immunities clause who then owns the development rights? I would say I do. Some folks might argue that the removal of restrictions amounts to a windfall from the government back to private hands. They must be working under the assumption then that the vesting is to the government, across the full spectrum of issues that fall within the realm of land use regulations. It is not confined merely to describable physical features such as mineral rights or air rights or water rights but applies to something that is describable only as a restriction on some use as per some past statute or ordinance.

The US Supreme Court has clearly allowed government to restrict a person's right to the "use" of their land (which must imply development) so long as the private owner retains some single reasonable use. I remain convinced that such restriction remains fleeting, subject to a wholly new public policy choice that fully restores the state of law that predated the imposition of the restriction when imposed earlier as a mere policy choice. The boundary is the opposite ends of an allowable range of momentary policy choices.

Assume that someone asserts that the sole use I may engage in today is organic farming, and perhaps forever and ever. Could I still retain the right to seek a remedy in a legislative body to lift that restriction? In this context, if the restriction had vested a right in government to limit my other possible uses (sort of analogous to the "right to exclude"), and the restriction is later lifted, could any member of the community object in the judicial arena to the unlawful gifting from the public to me, the private guy, of a "real property" interest that belonged to the government (i.e., that it belonged instead to everybody in the community collectively)? Suppose three generations later my issue are happy organic farmers and decide then that they want to do something different with the land, will the judiciary have the skill set to analyze the issue in terms of property rights rather than as a catch 22 examination of the full set of restrictions that might have ever been placed on the land -- which must, under your apparent view, be considered to have purged rights from private hands in favor of the government, as they would have vested permanently a real property interest at the instant of their initial imposition?

Bonus question -- if the farm land is later upzoned to a higher and better use, in the community interest as a new public policy choice, should the tax man tax it (the land and interests appurtenant to it) as if was used at the maximum then-allowed use even if it continued to be used for organic farming? To whom would the taxable real property interest be appurtenant, the ceremonial title holder of the land or the government itself?

What would you advise me to do, in my best interest? (To keep in good graces with the board of governors of the bar you can use me freely as just an example of a mere member of a class of folks seeking clarity in the law, in the interest of course of determining certainty and predictability.)

(For factual context:) I am inclined to simply farm, and await brighter days rather than to give in to the pro-development folks in the tag team that call themselves either right or left, in their presentation of an apparent last-best-offer. If I plant fruit trees the break even point is many years out, but I am not a mind reader -- while I can and do read court cases.

"perhaps, too demanding."

That would be a cop-out. Give it your all, as a vigorous advocate is routinely obliged to do. (You should feel less trepidation, or a sense of liberation, to express candor here as this arena does not involve the award of attorney fees for daring to be aggressive. I am more inclined to curse at a blackberry that gets me first as I am trying to spray it.)

Posted by: Ron Ledbury at August 23, 2006 03:35 PM

"I am more inclined to curse at a blackberry that gets me first as I am trying to spray it.)"

Ron, Ron,
Don't spray the Blackberry. You type on it with your thumbs.

Posted by: Allan L. at August 23, 2006 06:26 PM


Development rights vest in the grantee, or receiving property. I saw the article in yesterday's Tribune on the Allegro and can see how it looks like the CoP has a loose pool of FAR on deposit. Leave it to the CoP to screw up any valid concept.

I am not sure I understand your other question. Email me if you want to. (I have difficulty emailing from websites since I somehow got the program hooked up to an old dial up version of AOL.)

Posted by: Cynthia at August 26, 2006 02:55 PM


Does the holder of a document purporting to represent a personal development right possess the power to prevent a governmental entity from increasing the development rights via a general law, thus rendering the value of the specific document to be a big fat zero? Their harm, for purposes of obtaining standing, would be that they lost the dollar amount they may have paid to be able to build a little bit higher than their neighbors, but now those neighbors can build to the same height too, with no special fee at all.

It is my contention that the M37 payments (in lieu of waiver) from government to private folks has a value of zero, precisely because the development rights cannot be alienated from the property itself. It would be a personal contract between the government and private parties. Imagine if SB100 etc were repealed in total and the government had previously paid money to private parties rather than grant a waiver; what would be the resale value of the thing (whatever it is characterized as) that the government bought. If they cannot sell it, on some private market, it can hardly even be considered property, real or personal.

The victim of M37 and development rights beliefs remains the notion of equal privileges and immunities and uniform application of law; thus it is compatible, in my mind, with nothing more than support for arbitrary exercise of government power.

The underlying basis for land use is that zoning benefits the parties within a zone. Such as preserving a residential character, for the mutual benefit of all the affected parties.

It is the concept of tradeable development rights itself that is flawed. If someone takes a nutshell series sentence or two that merely describes the basic notion of tradeable development right then they miss out on the big picture.

By the way, it is a classic notion in real estate sales transactions that they exclude any guarantee of land use as part of a transaction, as land use policy is not within the control of either of two private parties to a purely private transaction. The date of transaction thing in M37 that is used to exclude later buyers from the opportunity to demand a waiver is vulnerable to a contracts clause based challenge as all the subsequent land deals came with whatever rights the seller had (and that were inalienable from the land), but hey, who am I to have a say anyway? (The argument about the equal privileges and immunities clause was not addressed from the procedural posture of demanding that everyone be extended the same statutory right to waiver, exemption repeal whatever, that had been statutorily conferred to a closed class of citizens; not a class of real property except by indirection. It is an issue I would have raised had I submitted an amicus brief.)

I would be curious to see the PDC post their rationale for ascertaining the value to things that have no value at all, and then have an attorney attach their name, and credibility, to such property appraisal. It is just a fancy way of giving someone a special exemption, under the guise of plausible legality. It is hard to peg someone with criminal intent if they do not know what it is that they are doing, along with their professional advisors. How convenient?

I could take the argument from an old Curry County case dealing with rural land and whether it had been sufficiently committed to urban uses to overcome a limitation on development in the words in the code; and apply it to FAR. If one site has a high FAR could I as an adjoining property owner assert that a particular zone has been committed to the higher height level and demand that notwithstanding the specific limitations in the code that I too should be given the same height allowance; notably without payment other than that of the cost of the legal action and a good land use attorney. I would not care whether so-and-so private person paid another private person X dollars to get their higher height allowance, with approval from the governmental entity, as that would be wholly irrelevant, unless one believes that two private parties can legally secure a contractual agreement to restrain a third private party.

Posted by: Ron Ledbury at August 26, 2006 07:12 PM

Ron, I believe the development rights are , in theory, attached to the land, even vertically separated. A transfer doesn't change the zoning. But building height/bulk limitations in a zone set limits on how much FAR can be transferred into it. A common example of how this is used is to preserve historic buildings in an area zoned for skyscrapers. It allows property owners to get the economic value of their land elsewhere in the jurisdiction. And the public interest in historic preservation i served at the same time. When a local government allows transfers in excess of what zoning allows, then this does, indeed, look like arbitrary government power, not arguably promoting public health, safety or welfare.

Re M37: My sense is that it will be a while before we start to see it in perspective. For what it's worth, my opinion is that the O is right that it can be manipulated by developers, but, then, so has our "great neo urbanist experiment" been manipulated. The key, I think, is to have conversations that will help us get to the bottom of it all. And, to some extent, that seems to be happening. Thank God and Jack Bogdanski.

Posted by: Cynthia at August 26, 2006 09:44 PM

The folks in SoWhat who obtained height exceptions are not in contractual privity (via Transferable Development Rights, or any other private deals) with all the other folks in the Urban Renewal Zone, and the folks under the tram wire in particular, who could and should demand at a minimum the opportunity to strike private deals with the special beneficiaries . . . without the City of Portland stepping in to seemingly purge them of their rights with a song and a dance. The only relevance of Portland's disregard for these other folk's economic interest is to switch the burden of persuasion and proof in court. Someone could bring it as a class action where individuals could opt out. The entirety of the buildings that were exempted from the height limitations look like ample collateral to cover the eventual award, which should serve as sufficient incentive for the legal advocate. (If the PDC has engaged in acts equivalent to a private construction lender then they should be treated as if they where wearing their Private hat, not Public hat.)

This is the way to "get to the bottom of it all[.]"

It was The O that trumpeted the threats of lawsuits by the special beneficiaries and the OHSU crowd and hoisted the Man of Steel upon us, and the need for a trustworthy city partner (in crime). The O is part of the developer manipulation, not a passive disinterested overseer in the public interest.

I can use TDR's as a weapon, if that is what Portland wants to embrace, as with FAR.

Posted by: Ron Ledbury at August 26, 2006 11:00 PM

[Posted as indicated; restored later.]

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