On Friday, September 29, a Hearings Officer upheld the City of Portland's denial of SK Northwest's proposed development on SE Caruthers Street. That's good news; the developer had proposed to build without putting in a greenway trail for walkers and bicyclists, something that's key to the safety of bicyclists in the region.

But the news isn't all good — the denial wasn't based on the failure to include a trail.

First, on the positive side, the Hearings Officer found the applicant, SK Northwest, failed to provide evidence that the development would not result in a significant loss of biological productivity in the Willamette River, and that the applicant failed to provide evidence that the development would screen parking, loading, dumpsters, and the like from the pedestrian environment. Based on those two failures, the Bureau of Development Service's denial of the development was upheld.

Unfortunately, the Hearings Officer found that the City's Greenway Trail requirement is unconstitutional on its face, and that the requirement was asking too much of the property owner based on the data the City provided. The City could appeal both of these findings, or it could decide to clarify its Greenway Plan requirements.

In short, the Hearings Officer found that the requirement that "all applicants for a land use review….. are required to grant an easement for a recreational trail" was overreaching. He argued that each application should be analyzed for the scope of its impacts under Dolan v. Tigard, a Supreme Court case. He also found that the City failed to show the impacts of the development — in terms of traffic generation — were "roughly proportional" to the trail requirement.

The decision might be further appealed by either side to the Land Use Board of Appeals, and from there to the Court of Appeals and Oregon Supreme Court. The folks at Portland Spirit (current owners of the property, and co-appellants on the case) have reportedly set aside enough money to take this case all the way.

The BTA is reviewing what steps need to be taken to ensure future developments on this parcel include a trail.

If the City fails to revise its Greenway Code, it's possible that a revised proposal that addressed the two concerns of the Hearings Officer would pass muster and result in development on east bank of the Willamette without a trail.

Many thanks go out to those who testified against the trail-less proposal: Ben Schonberger of Winterbrook Planning, Mike Houck of Urban Greenspaces Institute, the City's Bureau of Development Services, and Portland Parks and Recreation.

Thanks also to all the citizens who've written or called the Bureau of Development Services about this issue.

Despite the mixed decision, it's important to remember that the development proposal was turned down: we won!

Background information

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