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by Nathan Baker
In the latest round of litigation regarding the proposed Huston parking lot, third-year Lewis & Clark law student Brent Foster traveled to Salem on October 29 to argue before the Oregon Land Use Board of Appeals ("LUBA"). Foster argued as lead petitioner in an appeal of the City of Portland's April 1998 decision affirming the College's ability to proceed with its amended master plan. Other law students who had joined Foster in the appeal were in attendance to witness the argument. In true David and Goliath fashion, Foster squared off against Portland land use attorney Steve Pfeiffer from Stoel Rives, the Pacific Northwest's largest law firm. Foster more than met his match in delivering effective advocacy.
The Huston lot, which would be constructed on College-owned land in Tryon Forest near the Huston ballfields, has been surrounded by controversy since students first learned of the College's intentions to construct it over a year ago. Foster pointed to the safety risks the lot would pose and argued that traffic experts working for Lewis & Clark and the City of Portland have failed to address them. He also challenged the College's interpretation of a city mandate that requires a reduction in the total number of parking spaces at the College. Finally, Foster argued that potential visitor impact from the proposed law school expansion has never been assessed. Foster maintained that he and others had brought these issues to the College's attention long ago, giving it sufficient time to mend them, but that the College has failed to do so.
On many of the issues, Foster made plain meaning statutory construction and common sense arguments, mentioning that he and the other petitioners were "not rich" and could not afford expert testimony to contradict that of the College's. Pfeiffer, representing the College as intervenor in the suit between the students and the City of Portland, continually asserted that it was more reasonable for the LUBA panel to defer to the College's "experienced traffic consultants" than to law students who merely walk the property in their daily activities, and that on many of the matters the LUBA panel could not weigh the evidence anew but rather determine whether it was weighed properly below. One of the two LUBA referees who presided over the case, Lewis & Clark law grad Michael Holstun, informed the parties that he was "very familiar" with the vicinity of Tryon Creek at issue in the appeal, and that he jogs regularly on the bikepath. Both Holstun and the other referee present, Suzanne Hanna, had educated themselves on all the issues, as evidenced by their intelligent questions throughout the argument.
Each of the petitioners' five assigments of error were complex and prompted extended discourse by Foster and Pfeiffer. A paraphrased list of the assignments of error and the underlying arguments follows:
- The City lacked substantial evidence to find that the
College's 1992 master plan met the Transportation Element
of Portland's Comprehensive Plan, which requires a 10%
reduction in the number of parking spaces per capita
within the Portland Metro area over the next 20 years.
The City based its calculations on the maximum
potential number of parking spaces that could
possibly be built under the master plan rather than the
available supply of parking spaces.
- The City lacked substantial evidence to find that the
amended master plan was consistent with city requirements
that master plans assess traffic impacts of proposed uses
and that conditional uses not threaten pedestrian or
bicyclist safety. The proposed parking lot would
increase the number of cars turning left from Terwilliger
Boulevard onto Boones Ferry Boulevard, and, as a result,
pedestrians and bicyclists walking along Terwilliger
would be threatened by cars using the road shoulder to
illegally pass other cars waiting to turn left onto
Boones Ferry.
- The City Council's finding that the amended master
plan complies with Portland safety zoning codes is not
supported by substantial evidence. The path planned
to connect the Huston Lot to the Law School would create
significant safety threats to pedestrians, especially at
night, because the path is isolated from the street by
more than 50 feet of dense woodland on one side and by a
640-acre forested park on the other. Nowhere in any
of the transportation experts' written or oral testimony
did they mention potential threats to personal safety on
the path. (Here, Foster could not refer to the
Tryon Creek flasher who has been sighted numerous times
in recent months, because the flasher has appeared only
recently and therefore accounts of his sightings were not
in the record below).
- The City lacked substantial evidence to find that
transportation impacts from visitor use at the law school
were adequately assessed. The law school's facilities
would be expanded by 90,000 square feet, roughly doubling
its current size. This development would include a
new 45,000 square foot auditorium and would greatly
increase library work space, which will make the law
campus more attractive for area attorneys and members of
the public. The City found "increases in traffic or
trips result only from increases in enrollment, not from
the expansion of buildings." This is inconsistent
with the Council's recognition in their findings that
despite an 11% decrease in student enrollment between
1992 and 1996, traffic levels have actually
increased.
- The City lacked substantial evidence to find that the
College's master plan met city requirements that areas be
capable of safely supporting proposed uses and that
master plans assess projected transportation impacts. The
record supports that there would be 1,641 daily trips in
and out of the Huston lot. Bicyclists have
testified that adding a significant number of pedestrians
to the Tryon Creek bikepath would create serious safety
hazards for cyclists because the path is curvy, narrow,
and lined by dense vegetation. Nowhere have College
or city traffic experts discussed how pedestrian traffic
might affect bicycle travel, even though this issue was
repeatedly raised by the public.
At the beginning of Foster's rebuttal, he joked with the LUBA panel, "I hate to give you guys homework, but you've got some." The LUBA board clearly agreed that there was much to consider in making its decision, because it postponed the scheduled date for announcing its opinion from November 6 to December 20. After the arguments were finished, Pfeiffer congratulated Foster on his excellent preparation and advocacy, saying "they definitely don't teach you skills like that in law school."