In a quasi-judicial decision by the Troutdale City Council, I voted against approval of the land use application for Tyson's Place condominiums in Troutdale. So did Councilor Chris Gorsek.
You might think that a "no" vote meant I didn't think the applicant met all the city's land use requirements. In this case, however, a "yes" vote meant shutting down the applicant's proposed land use altogether. Here's why: a majority of the city council, in a 5-2 margin, voted to approve the land use application on the condition that the road access could NOT be through Troutdale's Sedona Park neighborhood. (You can read more background on the Tyson's Place controversy and the objections of Sedona Park residents here.)
This decision effectively prevents the Tyson's Place condo development from being built, because there isn't any other access. The council's majority decision landlocked the property without any road access. Until the applicant appeals this to LUBA, which I'm sure they will, this is a dead land use application until it gets remanded back to us by LUBA.
And that's why I voted no. The written record and the testimony during the public hearing provided substantial and convincing evidence that the developer's land use application met all Troutdale design codes and requirements.
There is no defensible evidence that supports the claim by five of Troutdale's City Councilors that the additional traffic into Sedona Park through Edgfield Ave. would be dangerous. The claims by Councilors David Ripma, Norm Thomas, Barbara Kyle, Doug Daoust and Mayor Paul Thalhofer that Multnomah County could easily provide access to Tyson's Place on 257th are without foundation.
During the public hearing, Multnomah County officials stated it was indeed possible to create a safe access to Tyson's Place via 257th. However, due to the extremely short and dangerous sight distances at that location, they said it would require expanding the right of way on 257th to add an additional southbound lane for access to Tyson's Place.
According to Multnomah County officials, expanding the right of way would mean the demolition of at least one of the apartment buildings at Troutdale Terrace north of Tyson's Place. It would also mean the probable demolition of one or more single family residences located south of Tyson's Place. The cost estimate: $10-20 million.
The applicant, the appellants, the city and the county all agreed that the stretch of 257th near Tyson's Place is dangerous due to a history of several rear-end accidents. It's why the county agreed that a guardrail could help at that spot.
The appellant's(Sedona Park residents) testimony and evidence regarding traffic was not based on professional expertise. As a matter of record, there was expert testimony and data from the applicant, Multnomah County and the city's planner that showed minimal traffic and safety impact to Sedona Park via access through the neighborhood at Edgefield Ave. The facts were very clear.
In addition, the Troutdale Development Code is the same as that of Multnomah County's:
TDC 8.040 (L) In the case of development that is not required to provide a frontage road, provide access to a street that intersects directly to the arterial street, preserve the traffic carrying capacity and safety of the arterial street, and avoid the cumulative effect of individual access points.
As a condition of an earlier land use decision in 2002 concerning the Tyson's Place property, there was even a "no access onto 257th" requirement.
Regardless of the unreasonable requirement for alternate access, the county has no obligation to violate their code and the Troutdale Development Code (TDC) and give the applicant access on 257th. Because legal access through the Sedona Park neighborhood at Edgefield Ave. already exists. 257th is a county road. It is not under the jurisdiction of the city, so a land use decision requiring the applicant to gain access on 257th is unenforceable by the city. This decision effectively landlocked the applicant's property.
Requiring the applicant to gain access via Troutdale Terrace or through an easement to Halsey Loop is equally unenforceable by the city. It forces on the applicant an inappropriate partnership with the city. In order to meet the terms of the decision requiring alternate access, the city must, on the applicant's behalf, condemn property from unwilling sellers and acquire the right of way needed to gain this unneeded alternate access through Troutdale Terrace and/or Halsey Loop. This is where the majority vote on Tuesday leaves the applicant: no access to their property. That's wrong no matter which you spin it. It could also be considered a taking. The city could now be facing a Measure 37 claim. Or a tort claim. For no good reason.
I'm not really upset with the Sedona Park neighbors. It was a very personal and emotional issue for them. However, I am disillusioned with the five city councilors who knew the law, ignored the law, put the city of Troutdale at significant legal and financial risk, and pandered to the Sedona Park residents, just because they were afraid the residents wouldn't "like" them.
Alternate access wasn't even something the appellants listed as one of their items of appeal. Even worse, the City Council decided on alternate access after the public hearing was closed. I'm no lawyer, but I'm not sure you can do that.
I couldn't disagree more strongly with the majority of the Troutdale City Council, who in Councilor Ripma's words, said "We did the right thing." We didn't do the right thing. If this were a legislative decision I would have voted in favor of the Sedona Park residents. But our feelings of empathy for the neighbors are irrelevant in a quasi-judicial setting. Requiring alternatives to access via Edgefield Ave. were totally outside the scope of what we were being asked to decide.
It was a quasi-judicial hearing and the questions before us were very straightforward: Did the applicant meet all of the conditions required for development at that location and under the city, county and state codes in effect at the time of application? The answer was and still is clearly yes.
Whenever the City Council is determining the legal rights or duties of specific persons, as those rights and duties are set forth in the already adopted ordinances and development codes of Troutdale, the City Council is acting in a quasi-judicial capacity, i.e., like judges.
A public hearing is required on all quasi-judicial matters. Council members do not have the right to engage in private discussions with their constituents, or anyone else, concerning a quasi-judicial matter. Instead, all information they receive and any opinion they express must occur only during a public hearing or a public meeting on the proposed quasi-judicial matter.
Unlike in legislative matters, the Council's range of options in a quasi-judicial proceeding is very narrow. The Council's authority is limited to determining if a particular person has the right under existing city ordinances to proceed with a proposed course of action, typically a proposal for a certain use of their land.
The Council may not make a decision based simply on what they feel is "the right thing to do", but must instead decide if the proposal is allowed under the existing law. Likewise, the Council may not modify the laws that apply to the proposal under consideration.
The majority vote on the Tyson's Place land use decision also violates a key benefit for land use planning: predictability for land owners (including Sedona Park residents!), developers, local businesses, and the city itself. An explanation of the concept of predictability can be found at the University of Oregon website here
I'll guote here from that web site:
"Planning is a process for making decisions about how a community expects to use its land and resources. Citizen involvement during that process is vital, but such involvement cannot go on forever. At some point, the governing body must make its decisions and carry them out.
The extent to which developers, land owners, utility firms, and other members of the community can rely on a plan's decisions is generally referred to as predictability. Without it, a comprehensive plan has little or no value.
But the need for predictability and the need for citizen involvement sometimes clash.
Suppose, for example, that a city is considering rezoning an area from single-family residential to multifamily residential. City officials work hard to get the public involved. They send out mailings and run newspaper ads to explain how the rezoning will allow apartments in the area. They conduct several workshops and public hearings. They receive a great deal of testimony, most of it favorable, and they proceed to rezone the area.
A year later, a developer proposes a new apartment complex in that area. Several neighbors object, but the city rejects their complaints. City officials tell them, "This area has been zoned for multifamily dwellings; the builder is completely within his rights to build apartments there."
The concerned neighbors might argue that the city is failing to provide for adequate citizen involvement. But the city has already had extensive public participation. Now city officials are simply standing by the decisions that grew out of that earlier involvement.
The need for predictability doesn't mean that a plan can never be changed or that a decision should never be reconsidered. But the whole idea behind planning is to have the community agree on where certain types of land uses and public facilities like streets and sewers should go. Once such agreements have been reached and adopted in the plan, the plan cannot be reopened every time someone objects."
I'm afraid that the only thing the city council has done with its vote on Tuesday is to give the Sedona Park residents false hope by providing a cynical short term victory for the neighbors. And at the same time the city is now at significant financial and legal risk. I don't understand why a majority of the city council is comfortable with placing the city at such great risk. There is absolutely no benefit for doing so.
The proper way to handle this unfortunate issue is to learn from this process and make reconsideration of high density zoning a high priority. We can't stop the legal infill at Tyson's Place. But we can do our best to lawfully get rid of future high density infill.
Instead of trying to appease the Sedona Park residents, the majority of the Troutdale City Council should have had the courage to tell them the truth. The applicant did meet all the criteria for the proposed use. They played by the rules. So did Sedona Park.
But it's the rule of law that applies here via our development codes. It's not the "rule of law except when we can't stand the political pressure".
Imagine if a drunk driver was in court on a DUI case. Imagine if the judge said,
" I know the evidence says you're guilty. But I don't agree with the law, so you're free to go. Here's your license back, and by the way, I'm giving you back the open container of Jack Daniel's those rude police officers confiscated from you."
I'm pretty sure the Tyson's Place decision will get appealed to LUBA. Or perhaps the city will just be on the receiving end of a Measure 37 claim, a tort claim, or both. Stay tuned. . .