Editor's note: Tuesday's Business Tribune covered the Design Commission's recent denial of the Ankeny Apartments, 1122 S.E. Ankeny St.
What would have been the seventh multi-family net-zero apartment building in the nation was denied by the Design Commission in late February after five rounds of design review — even though city staff recommended approval — costing the developer $160,000 in additional fees.
The designs for Ankeny Apartments included a six-floor, 18-unit residential building with a retail shop on the ground floor — originally planned to be 26 units, it was cut down during the design review process.
Bob Zimmerman, AIA, principal with YGH Architecture, told the Business Tribune that at the first review, commissioners commented that they would normally approve this kind of project, but it was way overbuilt.
"And 20/20 hindsight, that probably should have made it very clear the design review was going to treat this project differently than most 5/1 multi-family projects," Zimmerman said. "I'm not criticizing, just this project to them looked like the circumstances were very different, and there'd be a very different outcome."
After the first design review, YGH's changes to the Ankeny design included removing the ground floor parking, increasing the size of the lobby and retail space and getting rid of the curb cut.
"We reduced the size of the building roughly 8 percent, and we brought the six-story tower on the east side along 12th down to five levels," Zimmerman said. "After the third design review, staff wrote a report recommending approval because we had made changes that had to do with adjusting the massing — we weren't substantively reducing the project, we were creating more windows on the party walls and stepping back the face of the building. These are totally in direct response to the recommendations from the commission."
The Design Commission is made up of seven volunteer members who represent the public at large, architecture, arts and culture, engineering, and urban and land development.
"We went again and there was a different group of commissioners, and we were back to this is way too big a project," Zimmerman said.
The project wouldn't pencil out for the developer at half the size, so YGH could not further reduce the total area of the building.
"Look at all the buildings around it being developed, the're at 80-90 percent of allowable FAR (floor area ratio), with zero lot lines — it's what the city zoning goals all want," Zimmerman said. "This is kind of a funny exception site where design review said they'd normally approve these, and they were at a loss of what to do."
Zimmerman said designs by YGH have never been denied by the commission before.
"We're trying to make stuff work for everybody and the design review had good suggestions. They made positive changes to the design we would argue, but wanting it half the size really gets into the fundamental zoning of the project," Zimmerman said. "It's zoned EXd, it's not zoned residential — there's almost no residential there. If we make the changes, we make a building that's appropriate for the outlier uses, but a building that's probably not a good idea for the city if you look out 200 years. These are tough urban design issues and design review in some ways is not in a great position to look at the whole picture, and hopefully city council is."
"Folks get sidetracked thinking this is about an aesthetic design issue, which is a lot of what the design review does important, invaluable work on, but this is more about zoning, property rights and what the larger city goals and rules are about," Zimmerman said.
Grace Jeffreys, city planner with Land Use services, told the Business Tribune the zoning code is in Title 33.
"We have one zoning code, and the hierarchy goes up as you go through the zoning code, preceding whatever's below it," Jeffreys said. "If there's a conflict between codes, higher zoning code requires regulation."
"The city is required to use the process specified in the zoning code, which is what's called a Type III land use review procedure," said Kara Fioravanti, supervising planner of the design and historic review team with the City of Portland's Bureau of Development Services. "(The Design Commission) can disagree with staff on whether the proposed development meets the approval criteria or not."
The Ankeny site falls into two zoning categories and one plan district, the Central Eastside plan. Each outlines mandatory design criteria, in a hierarchy in this order: the Central City Plan district, the Central Employment zone and finally the design overlay zone.
Fioravanti said the hierarchy only comes into play when the guidelines conflict with each other, which in this case the City doesn't see, so all codes apply equally.
"The Design Commission is using overlay guidelines, but this is a plan district. As a plan district, it says I can build this," said developer Landon Crowell. "What the Design Commission is choosing to do is apply overlay guidelines which don't relate to us."
Because the Ankeny site is on the west side of Southeast 12th Avenue, it is under the Central Employment (EX) zone and the design overlay (d), meaning it goes through design review. If it were located on the other side of 12th Avenue, like The Brim project at 1206 S.E. Ankeny St., it would be zoned commercial or residential and not be under the design overlay.
The Brim obtained a same-day demolition permit for a 109-year-old duplex to make way for the four-story building on the 4,832 square foot lot.
Those developers, A12 Land Partners, were able to buy the 1906 house adjacent to the lot on the south side.
The design overlay process is currently under assessment in a project called the Design Overlay Zone Assessment (DOZA), directed by the BPS with consultant Seattle-based Walker Macy and is on its way to City Council this April. If passed, it could change the way the Design Commission operates, because the design overlay process has been under scrutiny for slowing down development during the building boom.
Under the Central Employment zoning, mixed-use is intended, especially in areas predominantly industrial. Residential uses are allowed, but not intended to set development standards.
"The intent of the zone is to allow industrial, business, and service uses which need a central location," the zoning code reads. "The development standards are intended to allow new development which is similar in character to existing development."
The third set of design criteria the project had to meet is in the Central City Plan district, which for this site falls under the Central Eastside Subdistrict. An updated version, the Central City 2035 Plan, is also being processed, and would change the design guidelines for a lot of areas around the city.
"The decision is based on the approval criteria, and whether these criteria are met or not," Fioravanti said.
The final rub came down to how the L-shape created blank walls that faced directly into the two 1904 homes on the corner of the block, casting shade from the edge of the property line. A number of neighbors filed letters and showed up to testify in person against the development.
"If the project was outside the Central City Plan District and didn't require design review, without that additional set of requirements it would have only needed a building permit. It would have been approved if it met all relevant zoning code development standards," Fioravanti said. "Design review considers site context and compatibility of the project with its surroundings. If the project was not subject to design review, and only needed a building permit, issues about the appearance and the compatibility of the project with its surroundings would not have been part of the review."
Projects in context
Crowell believes other projects in the area are being treated differently by the commission than his.
"We have some serious conflicts. You have to wonder if they're being enriched by other architects, sending these big projects back and forth like the Innovative Housing Inc. building down on Raleigh (Street) — they sent them back, it took them a whole year and it's affordable housing," Crowell said. "We're screaming about affordable housing yet we've got these guys holding a project hostage for a year, sending the costs to the moon."
Sam Rodriguez, senior managing director of the Mill Creek Trust, is the newest member of the Design Commission.
In the past two months, Mill Creek Trust received approval on two projects. One along 12th (Modera Buckman, seven stories, 909 S.E. 12th Ave., zoned EXd) across from the Goat Blocks and another on Northwest 14th and Glisan (Modera Glisan, 12 stories, Pearl District, L-shaped, zoned EXd). Both projects were subject to similar conditions as the Ankeny project: zero lot lines and an L-shaped building next to antique structures. Both were approved on the third hearing and both are in a Plan District.
Rodriguez declined to comment because of his seat on the Design Commission and the fact that there was public testimony on why Ankeny Apartments weren't approved.
Vallaster Corl Architects also saw two buildings recently approved in the area — Burnside Delta (six floors on a triangle block at East Burnside and 11th Avenue — one block from the Ankeny site) and Lower Burnside Lofts (six floors at Southeast 10th and Ankeny — also about a block from the Ankeny site) which was recently completed. VCA Founding Partner Don Vallaster is also serving his first term on the Design Commission.
Vallaster told the Business Tribune those projects were approved — but not Ankeny — because of context.
"One is a large vacant lot, it just has one other small building on the block — that would be the Delta project," Vallaster said. "The other one, Burnside Lofts, it was a partial parking lot with an insect eradication company that had been the last tenant, it had been sitting vacant and vandalized — everybody's happy to see the building gone. The context is totally different: (Ankeny) had family residents all around it, quite close in fact. That's a much more difficult context to build in."
1122 S.E. Ankeny St.
Developer: Landon Crowell
Designer: YGH Architects
Engineer: KPFF Consulting
Energy Modeling: Glumac
Early on, developer Landon Crowell struggled to get funding from Wells Fargo.
"The beauty of democracy in America is we have a conciliation process through the Department of Housing," Crowell said. "So I said to the department, I have tried about four times to refinance my home loan between 2011 and 2013, and they kept denying me and I said that doesn't make sense...I felt like it was discriminatory."
In 2013 he complained to the U.S. Department of Housing and Urban Development about being discriminated against by Wells Fargo.
"I studied the homeowner disclosure mortgage data. I could see the number of people of color in my neighborhood was getting less and less and less," Crowell said. "I reported it to the Department of Housing. They said we need more evidence because it falls under adverse impact XI. So I chose my race designation like I said, I entered (Black) 15 times, and then I put white and they approved the loan. That's when I reported all the data to the department of housing, because law is about facts, not feelings."
In the case, Wells Fargo had to turn over its numbers on approved loans by ethnicity.
In 2011, it approved 46 percent of loans to Black people (of a total 113 applications) worth $10,257,000 and denied 21 percent.
The same year it approved 66 percent of loans to white people (of 11,257 total applications) worth $1,537,740,000, and denied 15 percent.
"In 2016, I went and interviewed, trying to meet different banks," Crowell said. "The Albina Bank is supposed to help people of color. They made more excuses, it just all throws me under the bus. With those banks, I had the gap funding set up before I had the big loan set up — they wouldn't talk to me, which of course is another violation for the housing act, fair trade act and equal credit opportunity act."
In 2012, Wells Fargo approved 59 percent of loans to Black people (of 146 total applications) worth $17,249,000, and denied 22 percent. It approved 68 percent of white people (of a total 13,220 applications) worth $1,914,904,000, and denied 14 percent.
"What the banks did is limit the number of loans to minorities in certain areas. Coincidentally, they were all urban renewal areas," Crowell said. "And those numbers within a five-year span were knocked down by 40-50 percent. Woodlawn, Alberta, over on Prescott by PCC — these were all predominantly Black areas, 67 percent. They narrowed them down to less than 10 percent. That's done through redlining."
Kara Fioravanti, supervising planner of the design and historic review team with the City of Portland's Bureau of Development Services, said, "A developer's race has absolutely no bearing on the city's decision on an application."