Wednesday the Land Use Board of Appeals reversed Portland's approval of an 80-unit mixed-use building at 37th and Southeast Division, proposed to be built without any off-street parking. (Thanks to Willamette Week for the story.)
LUBA reversed the City's decision, not for reasons relating to the lack of parking, but because of how the City wrote its zoning code. The site is a rectangle with one of the short sides along Division and one of the long sides along 37th. The developer proposes to build retail space on the ground floor and apartments upstairs. The portion nearer Division is subject to the City's "Main Street" zoning, which is intended to make buildings along certain streets, including that portion of Division, look like buildings in small town Main Streets. One of these standards says that if any of the building is in a non-residential use and the site is on a corner, then "for portions of a building within the maximum building setback, at least one main entrance for each tenant space must (a) be within 5 feet of the facade facing Division Street, and (b) either (1) face Division Street, or (2) be at an angle of up to 45 degrees from Division Street, measured from the street property line."
In that zone, the maximum building setback is 10 feet, meaning that the building's Division Street wall can't be more than 10 feet from Division Street. In fact, it's built on the lot line, so it's set back 0 feet. The portion of the building within that 10-foot area includes both street-level commercial space and twelve upstairs apartments. The main entrances to the streetfront retail face Division Street, but the entrances to the apartments don't -- they're around the corner, on SE 37th, and are more than 5 feet from Division Street.
The City planners rallied valiantly around the developer, and argued that this provision of the zoning code was never intended to apply to apartments, only to non-residential uses. LUBA rejected the City's argument, saying that the plain language of the code states that at least one main entrance to any tenant space within the 10-foot setback must be within 5 feet of the Division Street facade.
Here are the developer's options, none very attractive:
1. Convert all of the street-level space to apartments so that the building will be residential-only, increasing the construction cost and reducing the rental income.
2. Take out some of the commercial space on Division Street (the highest-value portion of the building) and put in a Division Street entrance to the apartments, also increasing the development cost and reducing the rental income.
3. Remove the portion of the upper floors that's within 10 feet of Division Street; that is, chop off portions of 12 apartments.
4. Persuade the City to change its zoning code very, very fast, before the neighbors force the City to make the developer tear down what is now an illegal and unpermitted building.
I'd be worried if I were the developer. I'd be even more worried if I were the developer's lender.