GUNDERSON, LLC. v. City of Portland
259 P.3d 1007
Or. Ct. App.2011Background
- Portland updated its Greenway Plan for the Willamette River North Reach and adopted NRRP in 2010, creating a River Environmental overlay and River Review requirements.
- NRRP imposes on-site or off-site vegetation mitigation and specifies credits, and adds a 15% vegetation target on eligible sites, with credit variations by location.
- NRRP also modifies Greenway boundaries, shifting some land in and out of the Greenway, subject to LCDC approval.
- Gunderson, Schnitzer, and WWC challenged NRRP before LUBA on multiple grounds, including compliance with Goals 2, 9, 12, and 15, and consistency with PCP.
- LUBA remanded certain goals-based findings, notably requiring an adequate Goal 9 inventory of industrial land and addressing Goal 15 Paragraph B inventory, while otherwise upholding most NRRP aspects.
- Petitioners timely sought judicial review; the Oregon Court of Appeals affirmed in part, reversed in part, and remanded for the inventory issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Goal 15 inventory adequacy | Goal 15 Paragraph B inventory is incomplete for lands within the Greenway, including lands committed to urban use. | LUBA correctly treated boundary-change arguments as boundary-issue challenges; inventory concerns were not adequately within LUBA's scope. | Remand to address Goal 15 Paragraph B inventory adequacy. |
| NRRP compliance with Goal 15 Paragraph C(3)(j) | River Review and vegetation standards improperly restrict existing urban uses within the Greenway absent a change or intensification. | NRRP provisions are consistent with Goal 15 and do not bar regulation of non-intensifying developments; lands committed to urban uses may continue. | NRRP not shown to violate Paragraph C(3)(j); petitioners' challenges rejected. |
| Boundary amendments and LCDC approval | NRRP changes to Greenway boundaries require LCDC approval and cannot be effective before approval. | LUBA correctly treated boundary amendments as outside its review and remand would render issues moot; timing concerns are separate. | LUBA erred in not addressing boundary issues; remanded for LCDC-approval context. |
| Goal 2 and industrial land supply | Industrial land inventory and RE-overlay selections lack substantial evidence for Goal 2/industrial land sufficiency. | There is adequate factual basis supporting the RE-overlay and Gunderson’s property designation; substantial evidence supports LUBA’s ruling. | LUBA's substantial evidence ruling affirmed; no reversal on Goal 2 issue. |
Key Cases Cited
- State ex rel. Haley v. City of Troutdale, 281 Or. 203 (1978) (legislative findings permit existing uses but limit intensification and change of use)
- Mason v. Mountain River Estates, Inc., 73 Or. App. 334 (1985) (decisional scope about moot issues and rulings on appeal)
- Devin Oil Co., Inc. v. Morrow County, 236 P.3d 705 (2010) (substantial evidence review standard in appeals)
- City of Troutdale, 281 Or. 203, 576 P.2d 1238 (1978) (interpretation of state-local regulation balance under ORS 390.314 and related statutes)