By Armand Resto-Spotts, Attorney, and Keenan Ordon-Bakalian, Attorney
This article was originally published in the December 20, 2019 edition of the Daily Journal of Commerce Oregon.
At the Portland Planning and Sustainability Commission’s November 12, 2019 meeting, the Commission discussed amendments to the Design Overlay Zone guidelines, which are mandatory criteria that applicants must meet in design review. One specific guideline, which mandates outdoor places for the general public to sit or even rest, was a particular subject of discussion.
The Commission ultimately approved an amendment to the design review guidelines, requiring new buildings to “provide opportunities to rest and be welcome.” While the term “rest” remains undefined, the primary supporters of the amendment envision areas that are different from temporary public spaces on private property, like benches, which primarily serve the residents or users of the building itself and provide temporary opportunities to sit. By contrast, a space of “rest” should be an area that serves the community at large and provides a space for more prolonged periods of rest, which may include a place to sleep or pitch a tent.
For the supporters, there is a benefit to designing buildings that incorporate areas for rest, beyond just addressing the reality of houseless persons and the housing shortage. Others on the Commission were wary of the amendment, which they believe puts too great a burden on building developers and owners to address a broader public problem. Additionally, there is concern this amendment will exacerbate the longstanding complaint of private development: that Portland’s design review process drives up the cost of new construction, which is counter to addressing the affordable housing shortage. The Commission anticipates continuing this discussion at future meetings.
The amendment certainly introduces a novel approach to public-private partnership, especially in addressing public policy issues. However, notwithstanding the actual impacts of this amendment to the region’s houseless issue, the amendment raises significant legal questions.
Foremost, requiring private developers to accommodate a public space for “rest”—however the term is ultimately defined—may be an unlawful exaction. Generally, an exaction is a condition or requirement on development imposed by the local government to mitigate or address anticipated impacts from the proposed development. For example, the local government may condition a new hotel building on improving the adjacent sidewalk or street, or adding a street light, because there is a nexus between a new hotel and increased pedestrian activity. As another example, a local government may require a developer of a business park to dedicate a portion of its site to open space or stormwater ponds.
However, local governments do not have unbounded discretion when conditioning a proposed development. The Supreme Court’s exaction tripartite (Nollan, Dolan, and Koontz) has established that an exaction is lawful if there is an “essential nexus” between the impacts of the proposed development and the need for such improvements. Essentially, an applicant is only required to mitigate impacts a development causes or to which it contributes significantly. Further, the cost of the improvements must be “roughly proportional” to the impacts of the development.
In this case, it is unclear how new development would cause or contribute significantly to houselessness. Also, the question of how providing a place for “rest” addresses or mitigates houselessness remains unanswered. Because the term “rest” is both undefined and ambiguous, staff is already in a difficult position, legally speaking. As some of the Commissioners asked in the November 12 meeting, does “rest” require a place to sleep? A place to set up a tent? Or would it be limited to a large enough area for multiple people to stand, sit, or lie down in?
Any objective standards for public space of a certain size and with particular characteristics, such as a minimum amount of square feet that has roof cover, that would allow for a wide-range of activities constituting “rest” would arguably meet the criteria. Accordingly, any city staff recommendation that finds an applicant does not meet the criteria would be made purely on a subjective basis.”
This amendment may meet the “rough proportionality” requirement. Conditioning development approval on providing public spaces, such as benches, is quite common. Providing a place for “rest” does stretch the conventional wisdom of what is permissible in public spaces on private property. A primary concern with this proposal is that it could allow people to camp or even squat on private property.
Aside from the legal questions this amendment raises, it has certainly ignited a debate centered on the role of the Portland Planning and Sustainability Commission and building developers in addressing broad public policy issues. Should this amendment survive Design Commission review and be approved by the City Council, it will certainly increase what is expected of developers and future owners of new buildings.
Armand Resto-Spotts and Keenan Ordon-Bakalian are attorneys in the Jordan Ramis PC land use and development practice group. Contact them at firstname.lastname@example.org and email@example.com.
Thank you for your interest in this article. The information contained in this article is for the general interest of the reader and should not be regarded as legal advice. If you have questions, or to obtain more information on this topic, please contact an attorney in our land use and zoning practice group.