The City of Portland has been struggling for several years to find a permanent location for the Right 2 Dream Too (“R2DToo”) tent camp, currently located at the corner of NW 4th and Burnside. An August 30, 2016, decision by the Oregon Land Use Board of Appeals (“LUBA”) effectively blocks the latest solution.
The City had proposed moving R2Dtoo to a city-owned property in the Central Eastside industrial area zoned IGI and within a designated industrial sanctuary. The IGI zone generally prohibits residential uses, including group living, and expressly prohibits “mass shelters” and short-term housing.
R2DToo sought a zoning confirmation letter on the question of whether the zoning would allow the move. The planning staff concluded that the camp was a permitted “Community Service Use” and not a mass shelter or short-term housing use as defined in the code, and was a permitted use because net building area was under 3,000 square feet (Community Service Uses over 3000 square feet require a conditional use permit).
The City Commissioner in charge of the Planning Bureau took the unusual step of referring the interpretation to the City Council for review and final decision. The City Council held a hearing on February 18, 2016, and made final decisions approving the opinion and the move on February 24.
The Central Eastside Industrial Council, joined by several Central Eastside property owners, appealed the decision to LUBA, raising several procedural and substantive arguments. Their chief substantive arguments were that the City erred in its conclusion that the tent camp was not a “mass shelter” as defined by the code, and, alternatively, that it was not an allowed Community Service use because it allowed tenancy in excess of one month.
LUBA agreed with both arguments notwithstanding the very deferential standard of review of local governing body interpretations of its own regulations in ORS 197.829. Under this standard, LUBA must affirm a city council interpretation if it is plausible considering the text, context, purpose and policy underlying the Code interpretation. LUBA carefully considered the text and context of the provisions and the policies as applied to the proposed tent camp and concluded that the City’s attempt to distinguish the tent camp from the definition of “mass shelter” was simply not plausible and was inconsistent with purpose and policy behind the prohibition of residential uses in industrial areas. LUBA therefore reversed the City’s decision, which effectively prohibits the relocation of R2DToo to the Central Eastside.
The decision may also have implications with regard to the City’s recent controversial decision to explore location of a homeless shelter on the City’s Terminal 1 property, which is also zoned for industrial use.
LUBA’s decision includes two concurring opinions, a rare occurrence. Board Member Ryan would have sustained the petitioners’ argument that the City Council’s hearing should have complied with quasi-judicial hearing procedures in ORS 197.763. Board Member Holstun would have denied the second assignment of error relating to the interpretation of “tenancy” for the purposes of the Community Service use.