Building Heights: Here’s the Deep Dive

Early this month, Kevin McHugh resigned as the chair of the Port Orford Planning Commission for health reasons. It was an appointment he’d held for some years, shepherding the commission through a wide variety of tasks, from revising the Municipal Code to reviewing permit applications from citizens. The final, and perhaps most consequential for Port Orford, was the commission’s consideration of building height for new construction.

Below is McHugh’s personal testimony on that subject, submitted for the public hearing record.

Highlights from the letter include these statements:

  • In August, the City Council moved aggressively to preserve the small town ambience enjoyed by Port Orford residents.
  • The Planning Commission failed the Council by not adopting wording that satisfied Council’s instructions. This failure should not go without public comment.
  • Any claim that changing allowable building heights in all zones harms property values is unsupported by the facts. Building height has no direct effect on the value of developed OR undeveloped land in the city.
  • It is not in the best interest of the city of Port Orford for land to be held in speculation of greater profitability. This reduces the taxable base, pushes development into less desirable areas, and handicaps orderly growth.
  • Public safety is the most important consideration when setting allowable building height.

The Issues in Play

A review of the comment letters submitted for the public hearings in November identifies many of the issues people think important.

  • The capacity of Port Orford’s water system is limited, and the city struggles to meet demand during peak summer months. This does not take into account drought conditions, sedimentation in the impoundment, or well-known problems with an aged distribution system.
  • Fire protection may be inadquate to fight fires in larger, taller structures, both because of the equipment available and because there is an insufficient water supply.
  • Who will pay for the necessary but costly upgrades to water and waste-water systems? Citizens voted down bond measures to do so in 2011, and development fees will not cover the need, even as increased density exacerbates the problems of supply and demand.
  • Intangible qualities such as liveability, natural beauty, and small-town ambience are likely to be adversely and permanently affected by increasing the type and amount of housing built. Plus there are no requirements for new buildings, either residential or commercial, to provide off-street parking.
  • And last, but not least, there will be impacts on potential financial returns for owners of vacant land, both absentee and resident. Will limiting the size of what can be built lower property values, or is there compensatory value to be found in maintaining and promoting Port Orford as a small, intimate, affordable, artsy community with enviable natural assets?

Whether reducing maximum building height in local zones addresses any of these concerns, and ultimately any development pressures on Port Orford, is an open question. But it is the one currently being presented.

This comment letter makes the best and most complete case for limiting height so far.

Hurry Up … and Wait

In August, something alerted the Port Orford City Council (CC) to the possibility of new development proposals downtown, where the maximum allowable building height is 45 feet in both the 4-C (commercial) and the 10-MU (mixed use) zones along Highway 101. Because Port Orford currently has few structures approaching 30 feet tall, any new buildings at 45 feet would be jarring. The council decided to mandate 25 feet maximum heights in ALL zones. The Planning Commission (PC) was instructed to rewrite the zoning code to achieve these changes. This was done and approved. The CC then sent notice of public hearings on these new land use regulations, as required by state law.

All well and good. Concerned citizens sent letters, issues were aired, and opinions were expressed at two hearings in November. The next step was for the council to discuss the proposed height restrictions and take action. But instead, the councilors deferred the matter … to January 2021. What caused them to put the brakes on, when in August it had seemed to be so urgent to take action?

This seems to be a pattern for the city. Discussion often drags on and on, over many months, without a decision. In 2016-2017, the PC deliberated creating an off-street parking ordinance, the CC wrangled over it, appointing committees and subcommittes to try to come to a compromise between factions. Finally, the council just voted no, we’re not going to do this.

Was it weariness? Fear of alienating one side or the other? Insufficient governing experience? Lack of leadership? Poor planning and legal advice? All of the above? The same process is also playing out right now with the Outdoor Lighting Code — formerly known as the Dark Sky Ordinance — which is waiting for approval after reaching a second reading at the CC. Now it’s been bumped to the back of the line.

You have about three days to get your comments about the proposed building height changes to CC by the December 3 deadline. But first, you may want to know more about the issues in play. That’s next.

The Last Low-Hanging Fruit?

Know of any town on the West Coast with vacant ocean view parcels downtown? And low real estate prices? Yes, you do! It’s Port Orford. Or it was. In the last year or so, investors have discovered the town and bought up dozens of properties, some that have been on and off the market since the Great Recession. Now the low-hanging fruit is pretty thin on the tree.

Recently, Port Orford woke up from its nap and began to realize that maybe the city isn’t prepared to deal with the mounting development pressures. How does the city grow and prosper without compromising its core values of liveability, small-town character, and natural beauty? What would sustainable growth look like?

The City Council (CC) decided to address at least some of the issues by considering new building height restrictions. First, the Planning Commission (PC) worked on language for the changes to zoning, then held a virtual hearing on November 10. The commissioners voted 4 to 3 to leave the height requirements as is. This was not the wish or the expectation of the council. At its August 20 meeting (https://www.portorford.org/pdfs/2020/08-20-20%20Council.pdf page 3), CC had directed PC to draft language setting allowable building heights to 25 feet across all zones. And to leave the heights as is was not what the PC had decided at a special meeting on September 29. The minutes of the PC’s meetings on September 29 and October 13 are in the packet for the hearing on November 10.

Next, the City Council held a (virtual) de novo hearing on November 19. The City Planner provided the same staff report to the Council as to Planning, with a cover letter indicating the PC’s decision. The notice and staff report are on the city’s web site. Attachments to the staff report represent written public comments presented for the Planning Commission hearing.

At the hearing before the City Council, there were two hours of public testimony. But the decision was made to continue to accept more comment from the public until Thursday, December 3. No December meeting will be held, and the hearing will continue at the regular meeting in January. If you want your views considered, now is the time to get them on the record. Send emails to: the City Administrator, trichards@portorford.org. You might also cc the current mayor at tpogwizd@portorford.org, and the incoming mayor, pcox@portorford.org. Or, you may drop off a printed copy at City Hall. Use the box outside, or put it through the mail slot.

Next up: Why the hurry, then the postponement?

100 Friends – Really?

People say, sometimes with sarcasm, are there really that many?! Of course. If you’re reading this, you are one of them. You’re interested, maybe even actively engaged, in the life of Port Orford. Your family has been here for generations (maybe even since the 1850s when this Oldest Townsite on the Oregon Coast was founded). Or you came along a while later and fell in love with its natural beauty, its people, its arts, its history. You own a business. You are retired. You want to raise a family here. It’s a small town, but it’s a big tent.

From our About page: Although there is no formal affiliation, 100 Friends of Port Orford takes its inspiration from 1000 Friends of Oregon, the group that Oregon Governor Tom McCall founded back in 1975 to serve as the watchdog for Oregon’s pioneering land use planning program.

To be added to the 100Friends e-mail list, send a message to: info@100FriendsofPortOrford.org.
You may occasionally receive notifications of interesting meetings, as well as relevant news and analysis. There will be opinions. Dueling comments? Not so much.

To find us on Facebook, search by our name, or link here:
https://www.facebook.com/100FriendsofPortOrford
It would be great if you’d Like the page while you’re there. We’re hoping for comments, but no duels, please.

We’re Now on Facebook Too

Here’s the first post we put up on our new Facebook page on November 25, 2020. And we’ve created a new category: Building Height. We want to get people talking about what’s going on in this little village on the coast.

Welcome to the page for 100 Friends of Port Orford! We have been around since 2015, when we first started talking about the golf course proposed for north of town. (Five years on, it’s still no more than a proposal, and their plan to use Port Orford’s recycled water is still a pipe dream.) Along the way, we weighed in on other local growth and planning issues, from commercial development to the city’s water and wastewater master plans. In each case, we sought out and posted as much data and as many public documents as we could find.

Now Port Orford is facing new development pressures. Desirable vacant parcels, especially in its commercial district, are attracting investors from all over. Does city zoning promote sustainable growth and also protect what we love about the town? The city council is currently tackling this question by attempting to legislate lower building height limits. Is this the way forward? More to come on this later. There’s still time to speak to the council, and 100 Friends of Port Orford will help you get the lay of the land. Literally.

Comments are welcome here. Posts are also welcome, but will be reviewed by a moderator before they can appear. To get an idea of who we are, visit the 100FriendsofPortOrford.org blog. It’s here that we intend to post longer essays and supporting documents. Welcome. Come back soon.

Pipe Dream

Battle Rock Beach

In March, Elk River Property Development came with yet a third request for an extension of its conditional use permits to construct a pipeline for reclaimed water from Port Orford’s sewage treatment plant to a proposed golf course north of town. Port Orford Planning granted the extension in spite of the city’s Municipal Code, which states that the commission “may extend authorization for an additional period not to exceed one year. …”
(Chapter 17.32.060)

That allowed extension came in 2018. But in 2019, ERPD asked for and received a second extension, improperly, and here they were again in 2020. It was time, a local resident thought, to cry foul. She appealed the PC decision to the Port Orford City Council in May. And when the Council upheld the decision, claiming they could “interpret” the code to allow extensions basically every year until forever, she decided to take it to the state Land Use Board of Appeals for a hearing. No date has been set as of this writing.

An alert observer might suspect that something was up with the golf course project. It has been five years in the making now, with no progress off the drawing board, in spite of having virtually every permit necessary.
Except one.

ERPD claims that they need these multiple CUP extensions in order to continue working with the Department of Environmental Quality on a permit to use reclaimed water. But DEQ says they have been waiting quite a while and are more than ready for ERPD to submit their plan. So what’s the problem?

An active CUP for the pipeline is not even needed in order to obtain the DEQ permit. ERPD could resubmit a pipeline application to Port Orford later, if their CUPs elapsed — as they should — for lack of progress. (And maybe by then they could settle on one of their alternative routes as well.) Could it be that there is not enough investor money to pay for a miles-long pipeline to water a golf course on top of other construction costs?

Port of Port Orford

Port Orford is being asked to continue to believe in ERPD’s dream of golf on the coastline. But this dream is fading rapidly into the sunset, taking with it the hoped-for economic benefits so long promised Port Orford and Curry County citizens.

Here We Go Again

On March 10, 2020, Elk River Property Development (ERPD) again applied to the Port Orford Planning Commission for an extension to its Conditional Use Permits (CUPs) for an effluent pipeline from Port Orford to the farmland it is leasing to build a golf course. (Maybe. Someday.)

The Planning Commission approved the extension, in spite of city code that explicitly forbids it. The decision was appealed by a local resident, with the testimony below submitted to the City Council as the basis for the appeal. The hearing before the council is set for May 21, 2020. Agenda and packet information is here:  May 21 City Council Meeting

E-mail testimony to trichards@portorford.org and/or attend the meeting at 3:30 p.m. on Thursday. PLEASE NOTE THAT THIS IS A VIRTUAL MEETING. The agenda gives information on how to attend by phone and online.

It’s becoming more and more obvious that this golf course is not going to be built. It’s time to cut off  its pipeline “life support.”

TESTIMONY OPPOSING EXTENSION OF THE CONDITIONAL USE PERMITS

ERPD is asking for a third extension on its Port Orford permits for effluent pipeline alternatives. The pipeline is meant to serve the golf course they propose for a location outside the city at Knapp Ranch. They say they need this extension in order to continue working with the Department of Environmental Quality (DEQ) on a Water Pollution Control Facilities (WPCF) permit. That is not the case.

ERPD has used the same reasoning twice now, claiming a need for more time “to finalize the plans, maps and equipment used for the application of treated effluent for irrigation purposes.” Obviously there are problems with the project.

Port Orford’s Municipal Code allows for extensions not to exceed one year. I quote from Chapter 17.32, Conditional Uses:

17.32.060 Time limit on a permit for conditional use.

Authorization of a conditional use shall be void after one year or such lesser time as the authorization may specify unless substantial construction has taken place. However, the Planning Commission may extend authorization for an additional period not to exceed one year, upon written application to the Planning Commission. (Ord. 278 § 6.050, 1977)

ERPD has already received two extensions of these CUPs, in 2018 and 2019, each time for a year. It was a violation of the Municipal Code to grant the extension in 2019, because the Code only allows extensions that total one year from the original approval.

The only exception to this one-year rule is if “substantial construction has taken place.” No construction at all has taken place to date on any portion of the project. Clearly,

1) the Code does not allow efforts to obtain a DEQ permit to qualify as “substantial construction,” and

2) allowing extensions to continue indefinitely is explicitly prohibited.

Therefore, the request for another extension must be denied.

Further, ERPD has not stated nor proved that these CUPs must be active in order to complete its application for a WPCF permit. A pipeline permit must be in hand before construction can begin, but ERPD does not need one before they can obtain a WPCF permit. After this extension is denied, they may reapply for a conditional use permit for the effluent pipeline at a later date.

Winter Wonderland

Snow in Port Orford

As we sit by the fire during these wet and cold days, one thing we muse on is why anyone would want to build a golf course on the southern Oregon coast. November through March we can count on rain, hail, snow, and sleet. Often all in splendid rotation on the same day!

One Friend of Port Orford is fond of greeting us on stormy days with a smile and the comment “It’s another wonderful day for golfing at Pacific Gales!”

The rest of the year we could call our hometown the “Windy City.” Prevailing north winds keep us cool when others swelter (80 degrees is a heat wave in P.O.), and we do love it. Even though the 4th of July parade was rerouted a couple of years ago to proceed north to south. The headwinds were just too punishing for marching northbound!

One story we’re considering here by the fireside is an article about the proposed Pacific Gales golf course that appeared in Crain’s Chicago Business this past August. We almost missed the piece, because it’s written for Midwestern investors, not our local community. It features an interview with golf course architect Dave Esler, who is a partner in the Pacific Gales enterprise and has designed the layout. One thing especially caught our attention: The claim that the developers are planning a 200-bed lodge to go along with their 10,000-square-foot clubhouse.

Now, we already knew about the clubhouse, and we knew that a condo project was being cobbled together on a small property next to an old landfill leased from Curry County. But we’ve never heard anything about a 200-room lodge! This is important, because the developer has no approval for any such thing, and local zoning (based on Oregon land use laws) does not allow for a 200-bed lodge on farmland so near to the town of Port Orford.

So, what’s going on? Prompted by local citizens’ concerns, the mayor of Port Orford, Tim Pogwizd, asked Pacific Gales managing partner Jim Haley that question. Haley responded that, yes, the interview was indeed done with his partner Dave Esler, but the information about a 200-bed lodge was “complete hogwash,” “fake news,” and “spin.” Hmm.

It is hard for us to believe that the writer made up such a specific claim. How could that happen? Okay, maybe Esler got carried away. Dreamed a little, out loud. So maybe the news outlet should be asked to print a correction. For us fussbudgets who actually live on the Curry Coast and don’t want to see our local planning laws disregarded — and for prospective golf course investors who might get the wrong idea about the scope of things to come. Otherwise, it looks like the developer is saying one thing to investors but something entirely different to our community.

We are left to wonder, what’s the truth? The version touted in the Chicago publication, or the “just trust me” contradiction served up to the mayor?

You can decide for yourself. Read the Crain’s Chicago Business piece here:

For $199 You Can Buy a Tee Time at a Golf Course That Doesn’t Exist

And compare with Haley’s e-mail (complete and unedited) here:

Response to Port Orford Mayor Tim Pogwizd

Port Orford Council Agrees to Give Away Valuable Commodity to Private Business

At their March 15 meeting, the Port Orford City Council voted narrowly to provide the city’s treated effluent to Elk River Property Development for a golf course they propose to build north of the city. In a move that surprised most of the councilors and members of the audience, former mayor Jim Auborn read the following:

I make a motion to provide the city’s treated effluent to Elk River Property Development to be the first and main source of irrigation for the Pacific Gales Golf Course at no cost to ERPD with full recommendations for future engineering work to maintain the current ocean outfall viability, and in turn ERPD will allow the City of Port Orford the ability to cross their property adjacent to the sewer treatment plant, both water and sewer infrastructure, at no cost to the city for use of the property for the city’s infrastructure. This motion also directs city staff to work with the engineers to move forward with a secondary outfall project, including the ability to accommodate all outfall should the ocean outfall be no longer viable.     [from video of the meeting, https://archive.org/details/CityCouncilMtgP103152018; punctuation and emphasis supplied]

Discussion was contentious during the appearance of ERPD’s Troy Russell before the council and continued after the motion was made. State Representative David Brock Smith advocated in favor of the deal for effluent, and he stated that the effluent pipeline project had been fully approved, in spite of the appeal of Curry County’s decision that is now before LUBA.

Smith’s assurances were contradicted by local resident Penny Suess, who told the council:

The permit for the golf course expired in January 2016 because [ERPD] failed to ask for an extension. This was condition number 1 of the permit, but they overlooked or ignored this very basic, easy to fulfill requirement. Since the permit was granted, in 2015, ERPD has made at least two major changes to the plan for the golf course: They decided that they need reclaimed water to be piped from Port Orford for irrigation, and they decided to add housing. The permit was not modified to include these new components. Therefore, there is no single oversight mechanism on the project in the future. . . . Last fall, the county planning commission denied ERPD’s pipeline request. The decision was based on a cascade of dominoes resulting from the expiration of the permit. The commission determined that necessary state permits for piping reclaimed water could not be obtained when no approved project existed. A golf course is not an allowed use outright. It must have a valid permit. In other words, you can’t get approval to build a theoretical pipeline to a nonexistent, unpermitted golf course. When ERPD appealed, the Board of Commissioners upheld the appeal – but for the wrong reasons. The commissioners gave little attention to the underlying state laws and county zoning codes in making this decision. They relied on the same vague, unsubstantiated claims that ERPD and its supporters have been making for the past four years . . . On March 14, Oregon Coast Alliance gave notice to the BOC of their intent to appeal the pipeline decision to the Land Use Board of Appeals . . . This back-and-forth process is going to continue until all of the legal questions have been fully litigated. 

It was also said by Smith that no appeal to LUBA by ORCA has succeeded. However, of the four appeals to date, one did not move ahead because ERPD asked the county to withdraw the decision so they could refile the application; two were remanded back to the county (a remand for reconsideration is a win); and one was denied by LUBA. Yet Smith said: “ORCA is the most unreputable environmental for-profit nonprofit [sic] I’ve ever dealt with in the state legislature.”

Notice of Intent to Appeal

Pay particular attention to pages 5 through 10 of the NITA embedded above. The county failed to create a proper final order stating their decision and the right of appeal, and they failed to send it to all interested parties, as required by law. They created the final order and sent it out only after a request was made by ORCA – on the final day allowed for appeals.

Councilors Rohrbach, Webb, and Clancy voted NO on the motion; Auborn, Campbell, and Cox voted YES. Mayor Pogwizd broke the tie with a YES.