The rationale for placing Right 2 Dream Too on a spot of industrial land on the Central Eastside always seemed a bit too convenient.
In a "zoning confirmation letter" from the city's Bureau of Development Services, officials offered up baroque arguments that a homeless rest area like R2DToo amounted to a "community service"—a land use type that might be allowed on industrial property in some instances. But the bureau said that R2DToo was definitively not a "mass shelter" or "short-term housing," two community service types which are prohibited on industrial land. (Here's the same basic argument, made about another piece of land R2DToo wanted to move to.)
Business owners swore the reasoning was illegal. Now the argument appears to have been put to rest.
The state's Land Use Board of Appeals has agreed with the Central Eastside Industrial Council, which as long argued that the city's reasoning was awful. In a 69-page opinion [PDF] issued today, the board says Portland City Council overstepped when it ruled the rest area could move to the plot at SE 3rd and Harrison.
"A mass shelter and the proposed tent camp appear to provide the same basic function: overnight shelter and related services for houseless persons who otherwise have no place to sleep," the board wrote in the opinion. After a good deal of technical analysis about the nature of tent camps versus other types of shelter, the board found: "The city’s interpretations are inconsistent with the express language of the relevant [Portland City Code] provisions and for that reason alone cannot be affirmed."
The reversal throws R2DToo's ongoing plans to move from its long-term home at West Burnside and 4th into confusion, as an October 31 deadline looms for the well-respected organization to leave that plot.
Reached by phone this afternoon, R2DToo co-founder Ibrahim Mubarak hadn't yet heard which way the opinion went. His group was headed to a weekly meeting with Commissioner Amanda Fritz and Mayor Charlie Hales' offices at 3:30 pm.
"[The city] already started putting pipes and stuff down in there, so it’s going to be interesting," Mubarak said, informed of the LUBA opinion. "It's going to be very interesting."
Update, 6:45 pm: R2DToo wound up canceling its meeting with the city, Mubarak says, and is having its attorney deal with the Portland Development Commission, which has inked a deal to purchase the land the encampment currently sits on.
Asked if his organization would push to remain on that land, Mubarak said: "You better believe it."
A message left with Fritz's office wasn't immediately returned.
Meanwhile, Brian Worley, a spokesman for Hales, said: "City Attorneys are reviewing the decision now, and will advise Council on next steps." It's possible the city could challenge the decision in the Oregon Court of Appeals.
The Oregonian first reported on LUBA's decision.
Today's ruling jibes with confidence that city officials had evinced about the zoning decision when it was made back in February. At the time, only Commissioner Nick Fish voted against the move, voicing a litany of concerns that included the zoning rationale.
Hales took exception to Fish's remarks at the time, saying: "Commissioner Fish's comments were erroneous. We didn't override our code. I believe that this is a legal use."
Asked today about the decision, Fish said it is "certainly no cause for celebration."
"This means that R2DToo can't move to a better site," he said. "Some would argue this was preventable if we would have listened more attentively."
How far-reaching the LUBA opinion is remains to be seen. It most immediately affects R2DToo, of course, but it's possible it could have sway if city officials look to site future organized camps, and Fish believes it creates difficulties for a massive homeless campus that's been proposed at the city's Terminal 1 site, which is also zoned for industrial use.
One point of potential interest: the land-use board suggests that tents might be considered "structures" under Portland's zoning code. Hales' administration has been a fan of using tents as a way to potentially skirt zoning requirements, going so far as to call tiny houses built for homeless Portlanders "hard tents."