Madrona Park, LLC v. City of Portland

Under ORS 197.015(10)(b)(B), LUBA lacks jurisdiction to review building permit decisions made under clear and objective standards. Standards are not clear and objective if they are ambiguous—that is, if they can plausibly be interpreted in more than one way—or if they impose subjective, value-laden analyses.

Under Portland City Code (PCC) 15.04.040.F, the city may declare that a housing emergency exists, during which time mass shelters are allowed as temporary activities subject to portions of PCC Title 33 Chapter 296. In 2015, the city declared such an emergency. In 2018, intervenor applied for a building permit to construct a mass shelter. The city approved the building permit, and this appeal followed. Under ORS 197.015(10)(b)(B), LUBA lacks jurisdiction to review building permit decisions made under clear and objective standards. Standards are not clear and objective if they are ambiguous—that is, if they can plausibly be interpreted in more than one way—or if they impose subjective, value-laden analyses. Arguing the decision to approve the building permit was made under clear and objective standards, the city moves to dismiss the appeal for lack of jurisdiction. 

Petitioner argues LUBA has jurisdiction because the city was required but failed to apply additional standards that require the exercise of legal judgment. Specifically, petitioner argues the city was required but failed to apply the purpose statement for PCC Title 33 Chapter 296. Because purpose statements are generally not applied as approval criteria, and because PCC 15.04.040.F does not require the city to evaluate proposed mass shelters for compliance with the purpose statement, LUBA agrees with the city that the purpose statement does not apply. 

Petitioner also argues the city was required to determine whether the proposal qualifies as a “mass shelter” at all given that it would allow stays of up to 120 days. Specifically, petitioner relies on a description of the Community Service Use category to argue that tenancy in a mass shelter is limited to periods of less than a month. Because petitioner does not explain how the Community Service Use category is applicable to building permits for temporary activities, and because the definition of mass shelter does not limit stays to tenancies of 30 days or less, LUBA rejects petitioner’s argument. 

Under PCC 33.296.040.A, new development is prohibited for temporary activities unless it is consistent with uses allowed outright in the underlying zone. Petitioner argues this provision is ambiguous because it can plausibly be interpreted to apply development standards in the Central City Plan District (CCPD). LUBA disagrees with petitioner that PCC 33.296.040.A is ambiguous. In addition, because the CCPD is not a zoning district at all, LUBA concludes those standards do not apply.

Because the standards that the city applied are clear and objective, and because the city was not required to apply other standards, LUBA agrees with the city that it lacks jurisdiction under ORS 197.015(10)(b)(B). The appeal is therefore TRANSFERRED.