The Alpenrose hearing: Nollan and Dolan

In last Wednesday’s three-hour public hearing on the proposed Raleigh Crest development at Alpenrose, the two most significant words spoken were “nexus” and ”proportional.” Coming from Steven Hultberg, the attorney for Raleigh Crest LLC, they signaled that the developer would be pushing back against the most recent requirements from city staff.

As BikePortland reported last week, city staff had recommended denying the Land Use permit for the proposed 263-unit Raleigh Crest development. In their Staff Report to the Hearings Officer, most of the “relevant standards and criteria” that had not been met pertained to either stormwater or other environmental concerns.

BES: Nexus and Proportionality

The terms “nexus” and “proportionality” refer to key concepts in a body of jurisprudence which limits how much a government can exact from a developer, and which is referred to as Nollan/Dolan, after the Supreme Court decisions in those two cases. By using those terms in his testimony, the mild-mannered Hultberg made it clear that his client had reached the limit of their compliance with certain city requirements, most specifically pertaining to environmental mitigation, and that they could possibly challenge these requests using Nollan/Dolan arguments.

Specifically, Hultberg brought up “nexus” with regard to the sensitive wetlands at the property’s southern tip. He argued that there was no connection, or “nexus,” between any possible harm caused by their work in the riparian environmental zone and the mitigation the city was requiring.

At first glance, writing about Nollan/Dolan might seem like a stretch for BikePortland, but really it isn’t. “Dolan” is Dolan v. City of Tigard, a 1994 US Supreme Court decision involving Tigard’s Fanno Creek Trail, a multi-use path (MUP) just downstream from the Alpenrose environmental zones. In fact, a section of the Red Electric Trail which is planned to cross the northern end of the Alpenrose site, will eventually connect with the Fanno Creek Trail. So the Nollan/Dolan cases are very much relevant to this proposed development, and are an invisible-to-the-uninitiated dominating presence in many Portland Land Use decisions.

This is the best summary of Nollan/Dolan I’ve read:

The Court’s decisions in Nollan and Dolan address the potential abuse of the permitting process by setting out a two-part test modeled on the unconstitutional conditions doctrine. First, permit conditions must have an “essential nexus” to the government’s land-use interest, ensuring that the government is acting to further its stated purpose, not leveraging its permitting monopoly to exact private property without paying for it. Second, permit conditions must have “rough proportionality” to the development’s impact on the land-use interest and may not require a landowner to give up (or pay) more than is necessary to mitigate harms resulting from new development.

2023 Syllabus prepared for the US Supreme Court

By using the words “nexus” and “proportional,” Hultberg became a soft-spoken rattler of some significant sabers.

The public’s turn

After the Staff and Developer had presented their cases against and for approving the permit, it was the public’s turn. The first speaker was Marita Ingalsbe, President of the Hayhurst Neighborhood Association and one of the founders of the Friends of Alpenrose advocacy group. She started by saying, “Our top concern is the lack of safe pedestrian and bicycling connectivity,” and she described deficiencies in the general area of the development, including lack of a sidewalk and bike lane between the site’s northern boundary and the Beaverton-Hillsdale Highway, and also the sidewalk gaps and absent bike lane on Vermont St to the south.

Let’s pause there a moment. Those comments were directed to the Portland Bureau of Transportation (PBOT), it’s not the developer’s responsibility to fix the city’s half-a-century neglect of the streets in the broader area.

But Ingalsbe continued on with compelling testimony about many specific problem locations along the Alpenrose frontage which arguably could be the developer’s responsibility to improve or mitigate, if the city would require them to. For brevity, I’m going to highlight just one of those locations, the intersection of Illinois St and Shattuck Rd.

The intersection of SW Illinois St and Shattuck Rd

Illinois is southwest Portland’s longest greenway, and it is also Safe Routes to School (SRTS) designated. Currently, the road dead-ends at the Alpenrose Dairy in a “T” with Shattuck. The proposed development will add a new road traversing the development on Shattuck’s west side, and Illinois will become a through street connecting to it.

Inglesbe made a number of suggestions for improving what will become a complicated 5-legged intersection and concluded that, “some better design really needs to happen at this intersection when the new development goes in, we can’t just have a crosswalk.”

Or, as bike advocate Keith Liden wrote in one of his several letters to the city over the summer:

I am disappointed to see that the revised application continues to propose the same deficient pedestrian and bicycle designs as before. My descriptions of these problems and proposed solutions are contained in the attached emails. 

(Read this PDF of Liden’s testimony at the hearing. It is an excellent critique of the proposed bicycle and pedestrian system, with suggestions for improving it.)

It was in response to these and other comments from the public that attorney Hultberg used the word “proportional,” but he also expressed a willingness to work with the city on “safety concerns that were addressed by a number of the commenters today,” saying that the developer is “more than happy to continue to discuss” them with the city.

PBOT: where’s transportation?

Given the public’s reasonable requests, and developer’s apparent willingness to discuss them, it is curious that PBOT has been so passive about requiring these public safety improvements, which would appear to meet the Nollan/Dolan nexus and proportionality tests.

Irregular, 5-legged meetings of several roads are pretty common in the southwest, and PBOT has excellent designers who are able arrive at low-cost solutions for making them safer. Readers might be surprised to learn that it is standard in Portland for the “Transportation” section of a Staff Report to be copied straight from the “Traffic Impact Analysis” of the developer’s traffic consultant, with the following paragraph tacked on at the end:

PBOT has reviewed and concurs with the information supplied and the methodology, assumptions and conclusions made by the applicant’s traffic consultant. As noted in the findings, mitigation is necessary for the transportation system to be capable of supporting the proposed development in addition to the existing uses in the area. Subject to the recommended conditions of approval, these criteria are met.

The only “condition of approval” PBOT has required of the Shattuck intersection with Illinois is a crosswalk and “appropriate signage.”

I don’t know where the siloes fall within the PBOT organization, but looking from the outside, it doesn’t appear that the desk tasked with PBOT’s development review has access to PBOT’s street design staff—the people who design capital, SRTS, Vision Zero, bike and other projects. Rather, the development review group (now working under Portland Permitting and Development) seem to limit themselves to approving or disapproving the proposals made by the developer’s traffic engineer. So PBOT’s wealth of experience and values around safety, active transportation and street design goes untapped with private development projects. This might be why the street improvements associated with private development often seem inadequate.

Timeline

The Hearings Officer has kept the record open to new evidence and comments for another 14 days past the hearing date. Following that there will be a rebuttal period until October 23rd. Following the rebuttal, the Hearings Officer has 17 days to deliver his decision about whether to grant a Land Use permit for the proposed Raleigh Crest development, on November 8th.

— Read more BikePortland coverage of the Alpenrose Development, here.