Land-Use Board sends Peterkort plans back to Beaverton

by Virginia Bruce

The long saga of planning for the development of the Peterkort property in Cedar Mill continues, as the Land Use Board of Appeals (LUBA) issued a fairly narrow ruling last month regarding Beaverton’s new zoning for the properties they annexed in 2011. Neighbors who had failed to influence the Beaverton City Council to modify their newly-applied zones to the property filed a petition with LUBA in February, and after the long process of consideration, the ruling was handed down in August 2012.

LUBA remanded (sent back for changes) certain portions of Beaverton’s zoning ordinances. The city expects to deal with what they regard as “housekeeping” changes to the ordinance in the coming months. A statement from Jordan Ramis PC, the respondents’ (ie, Beaverton and Peterkorts) attorneys, says, “The remand sets us back a few months, but the good news is that the issues identified by LUBA are merely procedural and don’t involve changing any of the City’s policy decisions about what to allow in the SC-S zone or where to apply the SC-S zone.”

Beaverton Planning Division Manager Steven Sparks says no further changes are anticipated: “The only changes, if any, will be in response to the LUBA decision.”

Zoning areas adopted by Beaverton's Planning Commission click to enlarge

The petitioners construe the decision differently, pointing out that LUBA emphasizes that having buildings that combine housing and commercial uses is a signal requirement of the county’s designations and is absent from the city’s SC-S*. The ruling also requires that the city add a mechanism to ensure that traffic impacts from the staged development of housing be included in any commercial development that comes before it.

Petitioners and their supporters continue to emphasize that the Beaverton process ignores years of effort in planning the station area. It was meant to be a “transit community” that includes plenty of housing near the tracks, to fulfill the regional vision of less dependence on cars to get people around. They haven’t yet decided what their next move will be, if any, but the case could be taken to the Oregon Court of Appeals.

The Peterkort family history in Cedar Mill began when Joseph Peterkort left his home in Germany in 1912, heading to Oregon to join homesteading relatives. He went to work in Gustav Teufel’s nursery business, and married Bertha, the oldest of the Teufel daughters. Together they purchased a little land and started their own greenhouse business, growing flowers for the Portland market, and eventually adding holly. They purchased additional land as it became available. During the 1930s, they began to specialize in roses.

As the area began to be intensely urbanized, with the expansion of Highway 26 and the introduction of MAX and the Sunset Transit Center, the family realized that a move was inevitable. Peterkort Roses is still a family business, now headquartered in the Scholls area (peterkortroses.com). The remaining greenhouses were demolished a couple of years ago, and stands of holly on the north side of Barnes are all that remain. J Peterkort & Co. is the property-management arm of the family business.

In 2004, J. Peterkort & Co. issued a Master Plan for the six parcels that comprised their 250 acres surrounding the intersection of Barnes and Cedar Hills Boulevard. At that time, they were following Washington County’s Cedar Hills-Cedar Mill Community Plan that the county had applied to the land to comply with Metro’s 2040 growth projections, which included the prescription for mixed uses with dense housing near the station.

The family corporation expressed their concern that the Transit-Oriented (TO) designation was too rigid and would amount to “land-banking” of their property. They objected to “mixed use” as an experimental and risky concept, particularly when applied to the suburbs. But they wanted to be ready in case development interest arose, and the Master Plan was approved by Washington County. And then the recession hit, and nobody was developing anything.

As part of its aggressive annexation campaign that began in the late ‘90s under former Mayor Drake, Beaverton annexed the parcel that became known as the Walmart corner in January 2005, over the Peterkorts’ objections. Shortly afterwards, their annexation push was stopped through legal and county actions.

During the following years, the Peterkorts decided that they would have more flexibility in how the properties were developed if they annexed the remainder into Beaverton, which was completed in February 2011. Before and after annexation, their representatives worked with the city to craft a new zone—Station Community-Sunset or SC-S—that would be applied to six of the parcels.

Beaverton’s new zoning could allow up to 11 million square feet of non-residential uses (five times the size of Washington Square) across the properties zoned SC-S. The city says this is only theoretical, and that economic forces and case-by-case planning input likely will not bring about this result. They argued that SC-S calls for a Planned Unit Development (PUD) process that would leave room for community involvement, and that their planners would ensure that balanced projects would result. But concerned citizens wonder why it is in the code if it is only theoretical.

County Planning Manager Brent Curtis sent a letter to Beaverton Planning Manager Steven Sparks in late November 2011, before the city council approved the new zoning. He reviewed the efforts that went into the previous planning process (with representatives from Washington County, ODOT, Tri-Met, service districts such as parks and emergency services, CPOs, the city of Beaverton and all affected property owners). He said,

“Because of the competitive transit and locational advantage of the Sunset Transit Station, we believe the level of effort that went into planning this site and surrounding area reflects the belief that it provided the best opportunity in all of Washington County to create a dense, vibrant mixed-use urban development…

“Much of the County’s planning process focused on what happened within one-quarter mile of the transit station. The reason for this was a recognition that beyond that distance, the probability that an individual would choose to walk to the station decreases.”

A 1988 Urban Planning Area Agreement (UPAA) between Washington County and Beaverton specified that after an annexation of property in the Community Plan area, the city should “apply City plan and zoning designations to the annexed area that most closely approximate the density, use provisions and standards of the former County designations.” Although the UPAA required bi-yearly updates, it was never revised, and didn’t include the Sunset Transit Center. Opponents of the city’s action claimed that it was in direct violation of the UPAA.

Concerned citizens responded

Washington County declined to weigh in on Beaverton’s efforts, and the alleged violations of the UPAA, because of a lack of support from a majority of Commissioners. However Paul Schaefer, a Washington County Planner who had been involved in the decades-long process of determining the best use of the area, testified as a private citizen and was a party to the petition.

His points included: The proposed amendments do not require any housing at or near the station as required by Area of Special Concern #11 of the Community Plan; the proposal converts two of the county’s high-density multi-family residential districts—where multi-family residential is required—to the city’s mixed-use SC-S zone where they are not; and because nearly nine million square feet of retail and office (80% of 11 million) could be built along Barnes Road east of Cedar Hills Bl. prior to the construction of housing, it would be unlikely that much of it would be developed with the possibility of expanding to include a vertical housing component (housing above retail) later on.

He further noted that the new zoning does not satisfy or comply with Metro Urban Growth Management Functional Plan (UGMFP), a document that specifies the characteristics of development that can further Metro’s plan to maintain the Urban Growth Boundary by encouraging denser development inside the boundary, and in particular locating dense housing in centers, corridors, station communities and main streets.

Jody Wiser testified before the council that public improvements to the vicinity have added value to the Peterkorts’ property (transit center & access roads) and that there should be a reasonable expectation that it should therefore be developed in accordance with the public will. She noted that TriMet paid $1.2 million for land for the station, and that part of the needed land was “gifted” by the corporation which allowed them not to pay capital gains tax on their increase of value.

LUBA Remand

The petitioners cited a failure to adhere to the UPAA in their argument to LUBA. They said that existing Beaverton zoning more closely approximated county designations and that the specially-created SC-S was too lenient in allowing up to 80% of allowed commercial development to take place before any residential development was started. Neighbors were concerned that the area would develop more like existing shopping centers rather than the mixed-use, dense urban center that had been envisioned during the long county planning process.

In the end, though, the LUBA board cited three specific areas of concern, that a ½ acre exemption from the PUD requirement should be removed (the respondents say they already intend to remove that and its inclusion was an error), that transportation system impacts of the expected residential units (to be built later) must be accounted for in earlier commercial development applications, and that 13 of the allowed** “more specific uses” under SC-S do not match previous county zones. Peterkort development consultant Scott Eaton says, “We will look at the uses and be prepared to discuss clarifications as to why and in what fashion some of these uses might be appropriate, just as they are in other dense urban mixed-use areas.”

Eaton says that the Peterkorts are no longer opposed to mixed-use development. “J. Peterkort and Company does not envision that all the residential will be clustered, and separated from the station and other commercial uses.” He says that future development will likely be carried out by both the company and independent developers.

Critics point out that the definition of mixed-use is fluid, and can mean everything from a mix of office, retail and manufacturing, to the more-traditional mix of housing and business uses. LUBA’s ruling does emphasize that the mixed-use requirement of the County’s TO:R zones must be carried over to the City, and it defines mixed-use as residential with retail and/or commercial in the same building. The city will likely have to respond to that part of the LUBA statement, and it will be more than housekeeping.

Some critics believe that land-use restrictions and legal actions hamper the economic gains that will be brought by development. But as it states in the introduction to Beaverton’s Comprehensive Plan, “The basic aim of the Comprehensive Plan is to… protect the future health, safety, welfare and convenience of the citizens.” Here in Oregon, we are engaged in a great experiment to see if we can make a compromise between the desires of landowners and developers to make a profit and the needs of people to have livable and vibrant communities. It’s a revolution in progress, and we are seeing it played out time and again locally.

* “In general, petitioners are correct that while commercial development is allowed in the SC-HDR zone, it is only allowed in mixed use buildings where residential uses meeting minimum residential densities are also provided as part of the mixed use. In contrast, the SC-S zone allows stand-alone commercial development in buildings that need not provide any residential units.” [LUBA Nos. 2012-021, 022 and 023, p.20]

** Among others, they include vehicle rental facilities, commercial with drive-up windows, and manufacturing, which are either limited or prohibited by the city’s SC-HDR and the county’s TO-residential designations.

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