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Tuesday, March 25, 2008

The good guys win one

You know you're getting old when you spend a holiday weekend night watching a replay of a City of Portland land use hearing on cable access. But that's what we found ourselves doing a few nights back. The show, which ran on for quite a while, was must-see TV.

At issue was an application by the Holladay Park Plaza retirement center in the Lloyd District to build a 75-foot-tall senior housing project on property it owns just up 16th Avenue from its imposing tower. In the mid-1990's, the block on which this lot is situated had been the object of a land use dispute between the prior owner (a developer) and the Sullivan's Gulch Neighborhood Association. The city's decision at that time allowed for townhouses on much of the block, and a 60-to-65-foot-tall building on the lot now owned by Holladay Park Plaza. Everything's since been built but the big building.

Since the new plan was for a full story taller than the building that had been approved a decade earlier, the retirement home needed city approval to build at that height. And the city gave it to them, both at the bureaucrat level and by a hearings officer. The neighborhood, joined by the Irvington Community Association just a couple of blocks away, appealed to the full City Council. The hearing on that appeal, held last week, was what I watched on the tube.

Only four of the council members were present. Sten was away, doubtlessly counting his mystery money up at the mansion. That left Leonard, Adams, Potter, and Saltzman to hear the testimony. The neighborhood association folks did a masterful job with their case. They and their lawyer had a number of arguments, but three stood out. First, they noted that the block in question was supposed to provide a height transition zone from the massive apartment bunker just west of it, at 15th and Weidler. The block was supposed to provide a mid-level building as a transition to the older single-family homes to its east. The proposed building would actually be taller than the apartment building, and the neighbors wondered what kind of transition that provided.

Second, the neighbors argued, "a deal's a deal." The allowance of the townhouses was part of an intricate plan approved by the hearings officer in 1996. That officer specifically noted that the taller building on the corner (originally meant to be condos, I presume) was approved as part of a package. Charlotte Uris, one of Irvington's volunteer land use gurus and a participant in the original proceedings in the 1990's, pointed out that Holladay Park Plaza was now trying to "cherry pick" the last developable parcel out of the group and ratchet up to a better deal than the overall package of earlier approvals allowed. The neighbors' lawyer noted that since the proposed building did not meet land use rules except by virtue of the 1996 approvals, it could not legally be developed at all except under the terms of the ruling made at that time.

The neighbors' third argument was perhaps the most interesting of all. The retirement company based its application for the 75-foot-tall building in part on a transfer of "density rights" from the parcel on which its giant tower sits. This is one of the "floor-area ratio" (FAR) transfers that have become so popular with the developer weasels and their City Hall puppets these days. The Sullivan's Gulch folks argued that these transfers can come only from a lot adjacent to the property in question, and that there was actually a small lot between the tower and the proposed building site. Therefore, they said, the transfer couldn't be done.

At one point a member of the Council asked the assistant city attorney present whether the neighbors' reading of the FAR transfer rules was correct. She gave a decidedly noncommittal answer.

All in all, it was a great show by the neighbors. They were all quite careful to preface their remarks with their enthusiasm for density on the block. All bowed down to the gods of urban infill. But they argued politely that while density is good, the building that was approved in the '90s was infill aplenty.

The Holladay Park Plaza folks then spoke. They had a fancier lawyer -- a guy from Foster Pepper, I think it was -- who tried to disarm the various arguments that had just been made. Mostly he argued that the proposed building would be good for the community, and that without the extra height and density, the project would not make economic sense. He argued that the FAR transfer was entirely legal -- that only the "sites" need be adjacent, not the lots -- and that the 1996 decision should be revised. It was certainly within the City Council's authority to do so, he urged.

A business person from the retirement home company also spoke. At one point, he declared that Holladay Park Plaza was unaware of the 1996 decision at the time they bought the proposed building site from the prior owner. The assistant city attorney later noted, however, that the decision was filed on the county real property records, and thus would have turned up in a simple title search.

There were a few other witnesses for the retirement home, mostly residents of the existing senior citizen tower. They, too, were polite and nice, explaining that they were glad to be part of the neighborhood and generally appreciated the local activists who watched out for the area around their building. They noted that there was great demand among Northeast Portland elderly residents for a facility like the one being proposed, and that it would fill up immediately.

At last, the matter came to a vote. Leonard voted for the neighbors. Adams did too, but he was quick to say something like "This decision is not a precedent, at least for me, in any future case." You can bet that the people who pull his strings -- developers like Williams, Gerding, Weston -- would go nuts if you told them that they couldn't make FAR transfers like the one Holladay Park was proposing. Sam the Tram needed to leave himself lots of squirming room. The whole bit about "This isn't precedent for me" was just another expression of his extraordinarily arrogant view of law and public process. But at least he voted the right way.

Saltzman was also his usual self. Seeing a hot-shot corporate law firm up there arguing for more money for a client, old Danny Boy knew right away he'd have to vote for the property owner. And with a gaggle of blue-hairs joining in making the case, he had a perfect out. It was an easy one. Saltzman voted for Holladay Park.

Which brought it down to Potter, and he voted for the neighbors. That gave the opponents of the larger building a 3-1 victory. They were directed to draft a proposed decision and submit it for later council approval. It will be quite interesting to see what they come up with in terms of language supporting the ruling in their favor. If they include their position on the FAR transfers, you can bet the city will bend over backward to take that out. More likely, the final decision will rest on adherence to the ruling of 1996. A narrow ground on which to prevail, but hey, a win's a win. Nice going, Sullivan's Gulch and Irvington.

Comments (8)

The whole bit about "This isn't precedent for me" was just another expression of his extraordinarily arrogant view of law and public process.

bingo. i think his statement revealed much, and I think "arrogant" is an appropriate way to describe it.

FAR transfers are one of the more clever ways developers manipulate the system to go around planning intentions. unfortunately, city officials bend over backwards (or, perhaps, forwards) to accomodate such trickery.

Seems like a lot of posturing over a small lot in an area that's been going vertical for years.

The townhouses on the block are all relatively new, and they're not "vertical" at all. The 1996 decision was a pretty clear indication that the towers are supposed to stop at 15th or 16th -- not mow down everything all the way east to 33rd.

Eco is right. After FAR is transferred to a target lot, nothing prevents the city from increasing the FAR of the original lot, or adding new FAR bonuses to apply to the original lot. It's essentially ad hoc planning disguised by thousands of pages of rules. Holladay Park might get a different result by shelving their project and waiting for city council to change.

Is it, or is it not, clear as to why we need to rid ourselves of Saltzman?

A lot of money and effort spent on behalf of the neighborhood. The supposed benefit of which seems to be a building that is one story less than if the application was approved.

And if the developers were serious that the project doesn't pencil without the extra story (questionable), then they'll sell it and the neighborhood will be treated to at least another year of the wonderful vacant lot pictured above.

Seems that the neighbors' resources could have been put towards a more beneficial cause... I'm just saying.

A lot of money and effort spent on behalf of the neighborhood. The supposed benefit of which seems to be a building that is one story less than if the application was approved.

seemed beneficial and important enough for -developers to hire lawyers and fight,
-City Council to debate it (and Adams to snidely comment), and
-developers to attempt to violate the agreement.

I don't think there was ever an "agreement" (although there were numerous uses of that word in the hearing). There was a city decision, which everybody decided not to challenge any further, and to live with. I suppose that's an "agreement," but not in the sense of a contract.

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