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Appellants submit that a coordinated and preferential effort is being made by the applicant to document and decide this case in a manner that over-simplifies the issues and the adjustment criteria. The facts have been presented by the applicant and BDS unduly narrowly. A serious attempt has been made to exclude relevant facts, impressions and observations to construe the inapplicability of the same to the adjustment criteria so narrowly as to point towards affirming the approval of the adjustment exception without further ado.
Yet, it is precisely why the statute places the burden of proof on the applicant to show that granting the adjustment will equally or better meet the purpose of the regulation to be modified; and the adjustment will not significantly detract from the livability or appearance of the residential area; and if more than one adjustment is being requested, the cumulative effect of the adjustments results in a project which is consistent with the overall purpose of the zone.
Appellant submits that taking a new look at the mischaracterized facts, impressions and conclusions from a standpoint of a reasonable person, the factual and cumulative effect of what we know clearly shows that the applicant has not met his burden and has not shown convincingly that the adjustment will equally or better meet the purpose of the regulation, and that is will not significantly detract from livability and appearance of the residential area of both zones, and that the cumulative effect will result in a positive project consistent with the overall purpose of the zone, both multi-family and single family ones.
This adjustment was not properly approved and should be overturned, or overturned and remanded to complete the record to include all relevant facts before making a decision about adjustment.
Appellant submitted a statement during the hearing on May 16, with exhibits, as well as additional materials during the past week.
Testimony by the Appellant and those in support of the appeal has shown that the following points are indeed relevant to deciding whether the adjustment would equally or better serve the regulation being modified, as well as to the livability and appearance, and the cumulative effect of the four adjustments requested:
1. Proposed buildings are five stories, not four with a crawl space. The first story is 12 feet tall and although the developer might want to use it as a crawl space, regulations require it be counted as a story. Being five stories in violation of RM1 and RM2. Five story buildings must be built under a different set of regulations that the ones they are being planned under now. This goes directly to the height adjustment implications and an abuse of height limitation the RM1 zone or R7 zone do not foresee. The BDS Safety specialist Tara Carlton is in agreement with the Appellants and has grave concerns over safety as well as questionable fire remedies proposed in the form of the exit doors which lead nowhere, run into the fence or trash cans, do not provide sufficient room for people to exit in case of a fire, and propose to utilize the existing easement in favor of the condominiums in a non-sanctioned manner.
2. The heat accumulation effect from removal of the green canopy on the existing condominiums, the “green lungs”, the people residing in them and depletion of value of the existing condominiums are a very serious reality, that is now measurable and in fact is in direct violation of the new City of Portland Tree Canopy and heat policy.
3. The instability of the site is in fact a very relevant fact to the safety and livability of this project and the zone and testimony and geotechnical reports do shows it is not a site safe to build on with present conditions.
4. Burlingame View Condominiums are not in favor of the current proposal or the path and the sidewalk to be constructed by the Applicant as mitigation for the height, nor is it an appropriate mitigation for the excessive height being requested.
5. Trees the Applicant states he will be keeping, are the trees along SW Bertha Blvd, not on SW 13th Drive. Still, an insufficient number of trees is being planted, some trees are missing.
We urge the Adjustment Review Committee to deny the adjustments requested, or to remand the case for further fact finding.
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