City Council Isn’t Required To Consider That North Portland Propane Terminal, City Attorney Says

So maybe Pembina Pipeline’s proposal for a $500 million propane terminal in North Portland dies here?

After an inquiry from Commissioner Nick Fish two weeks ago, the City Attorney’s Office yesterday issued an opinion that Portland officials don’t have to consider a zoning change that could allow the project.

“There is no mandatory obligation to hold a hearing,” City Attorney Tracy Reeve wrote in the memo [pdf]. “We are not able to predict with certainty how a court might rule on the issue.”

The letter might finally put to rest Pembina’s attempts to land at the Port of Portland’s Terminal 6, near Kelley Point Park. But as Reeve notes, it could also be a matter that’s ultimately decided by a judge.

As we’ve reported, city code is vague on the issue at hand.

Pembina was pretty much all set to put an enormous terminal on the Columbia River last year, but the effort got tripped up when it turned out protective zoning laws wouldn’t allow the company to run piping across a stretch of beach. The company asked for a zoning tweak, and earlier this year the city’s Planning and Sustainability Commission recommended council go ahead and make the change, provided Pembina pay some expensive carbon-offset fees.

The whole process screeched to a halt when Mayor Charlie Hales, who’d been cheerleading the project, announced he no longer supported it, and wouldn’t bring it before his colleagues on council. But according to land-use law, after the planning commission makes a recommendation to city council, the City Auditor’s Office must “schedule a public hearing.”

Fish’s question, then, was whether the city had a duty to follow through and actually hold that hearing. Reeve says she doesn’t think so. She wrote that city code “contemplates, but does not explicitly mandate, that the Council will hold a hearing.” It’s enough, she says, that the Auditor’s office put it on the calendar. No one actually had to call it up.

The situation is a rarity. Reeve says her office isn’t aware of any other time a “commissioner-in-charge” (Hales, in this case) declined to consider a planning commission’s recommendation, and so there’s no precedent for how to handle it. And Reeve notes a court might well disagree with her interpretation.

“Should Pembina or the Port bring a mandamus action to require the City Council to hold a hearing, the memo says, “it is possible that a court might conclude there is a mandatory obligation to do so.”

Even if Pembina or the Port do force the issue in court, though—or if one of Portland’s four commissioners decides to call the matter up—the terminal proposal doesn’t seem to stand a chance as written. At yesterday’s city council meeting, terminal foe Chris Fountain said she’d been given assurances activists had heard from Commissioner Dan Saltzman’s office that he doesn’t support the propane terminal. Paired with the opposition of Hales and Commissioner Amanda Fritz, that could mean there aren’t votes for the zoning change.

So maybe the propane terminal’s dead at last. Or maybe Pembina—which dumped millions into getting this project under way, and was gobsmacked when Hales had a change of heart—has some other option in mind.