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Tuesday, September 7, 2010

City bending over backward for SoWhat immigration jail

As regular readers here know, the powers that be are proposing to build an immigration holding tank and detainee processing facility in Portland's SoWhat District -- a facility where people will be deported for not jumping through the hoops to enter the country legally. But the people pushing that project sure seem to be having a hard time accepting the fact that they have to jump through hoops themselves. They're bending the city's land use rules to the breaking point and beyond, rather than allowing their plan to receive the full public review that the law requires. And the municipal bureaucracy, apparently with the vocal support of a certain city commissioner's office, is going right along with them.

The neighbors who are concerned about the siting of the facility in SoWhat have been asking questions about the city's process to date, and the information they've been able to wrest from planning officials is troubling, to say the least. First off, the project has been in the works since last spring, or perhaps even earlier, although the first anyone outside the inner circle got even an inkling of it was in July, and the first anyone actually shone a spotlight on the jail aspect of the deal was in August. By May 10, city permit specialist Kara Fioravanti had already reviewed an application for the new facility and made an "initial determination" that the facility resulting from the planned renovation and expansion of an existing bank office building would indeed be a "detention facility," triggering a high level of scrutiny under city land use rules.

We've been through that question on this blog at some length, here. Of course it's going to be a "detention facility." There will be people in handcuffs, in federal custody, behind bars, being guarded by sworn federal officers -- and at least some of the guards will be armed. Up to 100 prisoners -- there's really no better name for them -- will be trucked to the facility and kept in locked rooms, under guard, up to 12 hours, while they await hearings before an administrative law judge. There will be not one but two fences around the detention area.

But of course, when there's money to be made by a developer, all common sense is thrown to the winds, and the endless hemming and hawing begins. The architects who are pushing the project hired a lawyer who made an impassioned plea that the immigration detainees really aren't in "judicially required" detention because a deportation proceeding is a civil, not a criminal, matter. "[A]ny detention that occurs in the facility in question," he write, "involves neither a judge nor court."

It's a cute argument, but in the end it seems pretty lame. The federal statute in question specifically states that the detainees are under "arrest," subject to bail and parole. The person they are appearing before in the facility is specifically called an "immigration judge." The place is going to be a "detention facility" -- the developer and architect types need to get over it.

It's interesting that the lawyer sent a copy of his letter to Patrick Prendergast, a prominent local developer. So far, the landlord of the building -- 4310 Building, LLC -- has been identified as being connected with the Lindquist Development firm. How Prendergast gets involved in the deal has not yet been a subject of public discussion.

Anyway, a month and a half after the lawyer sent out the letter, the city's Fioravanti reversed herself and ruled that the proposed jail isn't going to be a "detention facility" after all -- just an "office." So characterized, the project would be immune from any meaningful challenge by the neighbors. If it's just an "office," the facility is allowed as of right, and all the locals can complain about is stuff like the color of the paint on the barbed wire. No discussion about traffic. No discussion about neighborhood character. No discussion about safety.

Perhaps sensing the extreme weakness of the lawyer's theory, the folks pushing the project have some other suggestions about how the jail really isn't a "detention facility." One is that the office part of the building is going to be so much larger than the part with the cells in it, that the jail use is secondary, or subservient, to the greater office use. In other words, if you put a jail in a big enough office building, it isn't a jail any more.

You would think that by now, someone on the City Council would quietly step in and stop the foolishness. But quite the opposite, apparently -- word from the SoWhat neighbors is that Commissioner Randy Leonard's chief of staff, Ty Kovatch, has sternly lectured at least one of them about the facts that the jail really won't be a "detention facility," and anyone who says otherwise is lying.

Sure. When Fireman Randy uses a word, it means just what he chooses it to mean, neither more nor less.

In any event, we now arrive at that moment that we reach so often in Portland land use matters. Will the neighbors lawyer up and put a stop to this? Or will the unholy alliance of the developer dudes, their BFFs in City Hall, and the sweethearts at federal immigration, get away with mocking the law? We'll know soon -- these guys will have the jackhammers going at the absolute earliest opportunity. All along on this one, they've been hoping to get to "You may be right, but it's too late now!" Don't think they've given up on that goal, even though, much to their frustration, somebody's noticed what they're up to.

Comments (21)

"Ty Kovatch, has sternly lectured at least one of them about the facts that the jail really won't be a "detention facility," and anyone who says otherwise is lying"

Gee, I wonder who Ty learned that skill from.

We've lost control of our city.

An office????
Yeah right...with 2 fences, armed guards, body restraints, etc...
It's not a's a gaol!

If they must have a facility, why not the Wapato jail? It is a drain on the County, and an embarrasmenmt to boot. Whatever 'economies' there are to a somewhat shorter transport time would be easily offset by not having to build a facility, and despite the perception that Wapato and St Johns in general are 'way out there', it is probably just as convenient as anywhere in Portland.

Yes, I know this is the Federal government driving this, and they have their own criteria. In this time of ever increasing debt and financial concerns, does saving money really matter? I think it does.

Randy probably was playing big shot and told the feds he'd fix it.

Then he sent orders down the food chain to make it so.

Isn't he impressive?

If you have any doubt just ask Randy.

As for the wonder of it all?
When local government runs up against any obstackles to development that they want, they simply remove the obstackle by re-classifying, re-designating, removing or ignoring whatever it was.

Isn't central planning great for the government?
If at any time they don't like the plans they impose on the public they just s**t can them.

By these rules, the jail in the Justice Center is not a jail. Somebody tell the inmates. And the taxpayers.

But there's an invisible hand or three operating the levers on this project, isn't there?

How much influence does the city have over the siting of a federal facility anyway? I thought the feds always trump the local yokels, but as this office/jail went through at least some land use review the city must get some say (or the feds are at least letting them pretend to).

As with many things, the coverup might be worse than the original transgression. If the city had simply said the feds needed a site that met certain criteria and it was important to keep this employer within city limits, the SoWhat folks would still (rightly) be up in arms but the rest of us could accept it and move on.

Instead, we get double-talk, word games, and a city staff member berating the citizens that pay his salary. I hope SoWhat residents and their neighbors do lawyer up; the city's duplicity and deception needs to be called out.

Other white meat; there are other "invisible hand or three" in this charade besides Randy Leonard and his senior advisor, Ty Kovich. According to a senior planner above this project's planner Kara Fiorvanti, the city's mastermind cooperating with the Feds is Mayor Adams and his staff. Adams direct Randy to make this jail happen, and to forget zoning regulations and change the earlier labeling of this facility from Detention Center to Office. Kara first did what any planner reading the Title 33 would do-label it Detention Center. Then her boss said change it to Office with cover from lawyers Bullivant/Houser/Bailey.

Conditional Use Review as required under the CX zoning for Detention Centers is much more involved than Design Review. This will likely go to LUBA, even with the neighborhood association and condo owners lawyering up in the early rounds.

I have a great location for such a facility.

There's a parking lot, just across Hoyt Street from the Main Post Office, just to the west of a Federal Building.

You know, the one where the current immigration offices are.

Already zoned for the purpose, already used for the purpose...and re-uses property that's already off the tax rolls instead of taking MORE property off the tax rolls.

What's the problem. The rich denizens of Sowhat fear a little low income housing. The inmates could have daily work release to clean their homes and tend their lanscaping. We will need it, if we ever elect a real AG. They could use it as a white collar prison for the politicians and developers, and their family could live nearby, in their condo's. And Sam lie, what a shock.

Why does a sanctuary city neeed a new ICE detention facility?

Because it would be nice to have?

The money must be spent?

It's too late to stop now?

I don't understand, really. The city has a lot to lose by locating a jail, oops...detention center, oops..."office building" in SOWA.

As if the neighborhood doesn't have enough challenges and perceptions to overcome...why would the City back this? I have trouble with the "feed the developer" argument here. My get tells me there it has do be something more sinister, like direct payouts to Leonard and other staffers to just rubber-stamp this one.

This whole project might have gone unnoticed if the street car tracks didn't have to be raised to make light rail work.

Steve:We've lost control of our city.

So True.
We need show no respect to them, as they show no respect or regard to we the public. They have treated us like dirt. The scene is getting muddier by the year.
Jumping around the law, now this, now that, codes mean nothing.

Do feel sorry for those who have to jump to the tune knowing what they are doing is wrong. However, some of the city staff have been downright nasty to the people.

We have a Mayor and Commissioners sitting up in their secure perches knowing that most likely if they follow the agenda, the insiders will keep them in. The abuse of the law is getting more outrageous. As I said yesterday, this fits in with more crazy making.

Not a very good example for young people in our community, is it?

clinemen, you are correct about the abuse of the law. There are additional abuses than noted above in this ICE issue.

The city planners with directions from Adams/Leonard are also making the argument of "proportionality", whatever that is because Title 33 Zoning code has nothing in it regarding "proportionality".

They are claiming that because most of the building is "office" in support of the detention center portion, that it should be classified as an "office" building, not requiring conditional use review. GBD Architects also try to make that argument in their letters that Jack cites. According to the South Portland NA Land Use Chairman, CoP's Mark Bello, the senior planner admits that there is no such thing as "proportionality" in determining the kind of land use reviews required.

Another CoP staff mistake (maybe on purpose) is that this project is within the Greenway Zone. The staffs pre-application forms make no mention of a Greenway Review process that is required. Oh well, Greenways mean little around Portland. And zoning law abuse is okay for City of Portland, but not for the rest of us.

Suppose somebody gets a list together of 20 "office" buildings built in Portland since 2000 and their owners. Cross reference that list with documented conditional use reviews.

If any of the 20 owners of those 20 "office" buildings were subject at the time to CoP conditional use review, then can't they (now) therefore argue they were put through the ringer at the time for no good reason?

Rebate checks might be north of five figures. Can they back bill somebody for having to go through that, perhaps unnecessarily?

Do you remember when Title 34 was worked on? In my view was dismantled/changed because it stood in the way of development. Note the part: to prevent overcrowding of land.

From a 7/1/97 Document Chapter 34.04 Title and Purpose

34.04.020 Scope and Purpose
This Title is adopted for the purpose of protecting property values, furthering the health, safety and general welfare of the people of the community and to provide uniform standards for the Subdivision and partitioning of land and the installation of related improvements in the City of Portland.
It is the intent of this Title to moderate street congestion, secure safety from fire, flood, geological hazards, pollution and other dangers, to provide adequate light and air, to prevent overcrowding of land, and to facilitate adequate provisions for transportation, water supply, sewage disposal, drainage, education, recreation and other public services and facilities.
This Title shall apply to the Subdivision and partitioning of all land within the jurisdiction of the City of Portland.
Subdivision plats and partition maps shall be approved in accordance with the Title. a person desiring to subdivide land or desiring to partition land shall submit tentative plans and final documents for approval as provided in this Title.

Got logic, you may have it backwards. According to Table 130-1 of Title 33, if a building is classified as an office building in the CX zone (ICE's proposed building zone)then you don't need a Conditional Use Review. But you do per Table for a Detention Center.

Also, interesting from Table 285-1, is that if it's a Short Term Housing or Mass Shelter which could also be argued as the Use, you also need a CUR.

Clineman, you can also cite Title 33 which is most relevant to this case. Under "Conditional Use Review-Purpose. A necessary due to potential individual or cumulative impacts they may have on surrounding area or neighborhood". Certainly ICE would have an impact in several ways, besides the color of the building facade in just the Design Review process.

There's certainly subversion and cover-up occurring here.


I brought up the Title 34 as an example of when codes, etc. stood in their way, the city would just make changes. This was huge, if I recall the document was about 400 pages.
I just made a copy of the Scope and Purpose (above)for those to see if they weren't around then.

As you may know, the density issue, particularly the ghetto type density, is one I have been upset about, this title's purpose was to prevent us from overcrowding the land.

Buildings are allowed to have accessory functions under their main function, subject to area and occupancy restrictions. The building could easily be classified as a business (office building) with an accessory function of assembly (courtroom). Just because the courtroom has associated detention cells doesn't group the entire building occupancy as I-3 (institutional "security"). Oregon adopted International Building Code (2009) is the relevent code reference here not USC section 8.

IBC Section 408.2 Other Occupancies
Buildings or portions of buildings in Group I-3 occupancies where security operations necessitate the locking of required means of egress shall be permitted to be classified as a different occupancy. Occupancies classified as other than Group I-3 shall meet the applicable requirements of this code for that occupancy provided provisions are made for the release of occupants at all times.

I-3 occupancies are permitted to be separated from Business occupancies with walls (fire barriers) (IBC Table 508.4)

trikldown; the Portland Zoning Codes including Title 33 stands on its own. International Building Code, or any other references do not supercede 33. IBC could be used in an argument for interpretation, but 33 is explicit.

33 has no references to singularly taking one function in a building then applying that use for an entire building. I guess the Planning Director could make an argument that parts of the ICE Building is only an Office, and not require a CUR for that portion, but require CUR for the Detention portion. Even with that interpretation, its seems likely that this would be appealed to City Council, then onto LUBA and beyond.

This whole project might have gone unnoticed if the street car tracks didn't have to be raised to make light rail work.

You mean, the City receiving $35 million dollars to replace the practically brand new Streetcar tracks - the ones that are so much better than bus service because they are "fixed" and "permanent"

It doesn't cost $35 million to move a bus costs MAYBE $1,000 - and that's just the labor cost to install the new bus stop signs and remove the old ones, and an hour of website programmer's time to update the info on the website.


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