OR Appeals Court Finds That Plan District Regulation Governing Density Transfers Was Not Exclusive Means For Density Transfers

The Portland Design Commission (design commission) approved a design review proposal from respondents Bama Design and Moreland Station Apartments, LLC (collectively, Moreland) for a 68–unit apartment building in the Sellwood–Moreland neighborhood within the City of Portland (the Moreland proposal). The Moreland proposal included a transfer of 34 units from an adjacent site, known as a density transfer, to increase the maximum number of dwelling units that the applicant could develop at the site. Petitioners appealed the design commission’s decision to the Land Use Board of Appeals (LUBA), and LUBA affirmed. Petitioners contend that LUBA erred in determining that Portland City Code (PCC) 33.120.205(E)—the city’s general authorization of density transfers between sites in multi-dwelling zones—governed the density transfer in this case rather than PCC 33.537.110(B)—the city’s authorization of density transfers between sites in the Johnson Creek Basin Plan District (JCB Plan District), where the proposed apartment building was located. Second, petitioners contend that LUBA erred in determining that, because the density transfer was governed by PCC 33.120.205(E), the planned-development review procedures and approval criteria in PCC 33.537.110(B)(4) and (5) were inapplicable.

The Court found that the context, “[p]lan district regulations are applied in conjunction with a base zone[,]” and “may apply additional requirements or allow exceptions to general regulations.” of PCC 33.500.030 supported that understanding. Without express language of limitation to indicate otherwise, PCC 33.537.110(B) operates as an additional means of transferring density between sites in the JCB Plan District. Next, the court noted that the purpose of PCC 33.537.110(B)(4)’s requirement for planned development review is to ensure that the added density is developed “according to the requirements and approval criteria of this subsection” and PCC 33.537.110(B)(4) and (5) are part of the same subsection of regulations that authorize density transfers under PCC 33.537.110(B)(1) and (2). Thus, the court affirmed the holding of LUBA that, because the density transfer was approved under PCC 33.120.205(E), the planned development review procedures and approval criteria in PCC 33.537.110(B)(4) and (5) do not apply.

Sellwood-Moreland Imp. League v. City of Portland, 324 P.3d 549 (Or. App. 4/2/2014)

The opinion can be accessed at: http://www.publications.ojd.state.or.us/docs/A155409.pdf