Gunderson, LLC v. City of Portland
290 P.3d 803
Or.2012Background
- OregonWillamette River Greenway Act establishes a Greenway along the Willamette River to protect natural, scenic, and recreational values while permitting existing uses.
- Goal 15 requires incorporation of the Greenway Plan into local plans and allows regulation of developments, intensifications, and changes to uses to preserve Greenway qualities.
- NRRP amends Portland's North Reach with a River Environmental overlay and vegetation enhancement standards, plus a River Review process including off-site mitigation or credits/fees.
- Petitioners (industrial interests) challenge NRRP as unlawful regulation of existing industrial uses and as effectively forbidding urban uses via vegetation standards.
- LUBA rejected some challenges; Court of Appeals affirmed in part, reversed in part, and remanded for further proceedings.
- This Court affirms the Court of Appeals and partially affirms/reverses LUBA’s order, remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Goal 15 unambiguously preempts regulating non-intensification developments | Gunderson asserts only intensifications/changes may be regulated; seeks preemption of development regulation. | City may regulate developments, not just intensifications/changes, under Goal 15. | Goal 15 does not unambiguously preempt development regulation. |
| Whether NRRP violates Goal 15 by precluding continuation of urban uses | NRRP would restrict lands currently committed to urban uses from continuing as such. | Regulation may occur without eliminating urban uses; vegetation rules are not preclusion. | Court rejects petitioners’ need to prove complete prohibition of urban uses. |
| Whether vegetation enhancement standards improperly preclude urban uses or are unpreserved | NRRP’s vegetation standards force urban lands into vegetation, limiting urban use. | Preserved arguments do not support this challenge; standards allow on-site or alternate mitigation. | Issue unpreserved; not addressed on the merits. |
Key Cases Cited
- LaGrande/Astoria v. PERB, 281 Or 137 (Or. 1978) (home-rule preemption inquiry; local rules can exceed state standards if compatible)
- State ex rel Haley v. City of Troutdale, 281 Or 203 (Or. 1978) (local requirements compatible with state standards need not be preempted)
- Dept. v. J. R. F., 351 Or 570 (Or. 2012) (interpretation of statutes; courts must consider context)