THE JUDGE'S NEW ORDER TO THE CITY
U.S. District Court
District of Oregon
Notice of Electronic Filing
The following transaction was entered on 4/3/2019 at 4:14 PM PDT and filed on 4/3/2019Case Name:Masonry Building Owners of Oregon et al v. Wheeler et alCase Number:3:18-cv-02194-ACFiler: Document Number:54
MINUTES of Proceedings for Telephone Status Conference before Judge Acosta: Hearing held on 4/3/2019. The court finds the City's letter and notices to URM building owners violates the court's temporary injunction (ECF No. ). Accordingly, it is ORDERED that the City shall prepare and send a correction letter, the content of which shall be consistent with the court's directive stated at the hearing, to all recipients of the March 21, 2019 letter, or other similar letters or communications to URM building owners. Counsel for the parties shall confer on the appropriate language for the correction letter, and submit it to the court for Judge Acosta's approval prior to its distribution. It is FURTHER ORDERED that counsel for the parties shall confer on the language of any future communications with URM building owners concerning the ordinance that is the subject of the Temporary Injunction (ECF No. ) or this action. It is FURTHER ORDERED that the parties shall confer on the need for and language of a script to be given to City employees receiving phone calls regarding the status of the Ordinance or compliance with said Ordinance. Additionally, the language of the correction letter shall serve as the basis for the approved script and shall be posted in the banner on the City's website concerning URM buildings.The court will hold the City in contempt for any future violations of the court's Temporary Injunction.Christopher J.K. Swift and Aaron K. Stuckey present as counsel for plaintiffs. Karen Locha Moynahan and Tony N. Garcia present as counsel for defendants. Court Reporter: Dennis Apodaca. Magistrate Judge John V. Acosta presiding. (Attachments: # (1) Plaintiffs' Exhibits, (2) Defendants' Exhibit) (gw)
LETTERS SENT BY ATTORNEYS
To City Attorneys:
To Judge Acosta:
WHAT DOES THIS MEAN?
The Placard Ordinance is mute.
The City cannot enforce placards.
The City cannot enforce tenant application disclosures.
The City cannot enforce signing a contract.
We keep fighting.
We prepare for our day in court.
If we win, we will be one step closer to a permanent injunction.
On Wednesday, Feb 27th, the Council made changes to the City’s URM rules. An ordinance, sponsored by Commissioner Hardesty, passed 3-1. This action extends the timeline for complying with the placarding requirement on all buildings (other than City-owned buildings) to November 1, 2020 and removes the requirement to record compliance with a deed encumbrance. It delays, but does not repeal the placarding requirement.
In a Federal Courtroom on Thursday, Feb 14th, a Federal Judge issued an injunction (June 1, 2019) against the City of Portland prohibiting the City from any communication or enforcement of the Placard Ordinance.
Update: Judge Acosta ruled on May 30, 2019 that the City of Portland cannot communicate or enforce any part of the placard ordinance.
We are awaiting the city’s response. If they appeal, we continue to fight.
The Placard Ordinance:
The proposed mandate was expected to be informed by the final policy draft. As it turns out, the city has defended its committees and their expertise, but are not following the unanimous recommendation to not negatively placard the buildings.
On June 13th, without notice, published documentation or even orally being read into the record, City Council unanimously passed a resolution to negatively placard buildings that are in full code compliance.
This, after committee members studied the negative the impacts of stigmatizing buildings, businesses, affordable housing, schools and houses of worship and the affects it will have on obtaining financing, insurance and income needed to afford proposed retrofits.
These placards, if passed, will be permanent even if the building is retrofitted to the standard proposed in the retrofit mandate. Small businesses have not been notified and children will have to pass a warning sign when entering their school. Is this a stress we want to put on small businesses or our children?
The Proposed Mandate:
On June 13th, City Council voted to delay the vote and form two committees to further study the feasibility of the mandate through funding. These committees will be formed in early fall 2018. We’ll publish the link on our home page when the city posts it’s application link.
The two committees are divided into for profit and non profit buildings. The city lacks the clear view of nonprofits as many non profits do not own their buildings, but rather, rely on for profit building owners.
Save Portland Buildings supports one committee. No one group has a seat at the table unless there is one table. This is one of many divisive decisions made by the Mayor’s office that will undoubtedly leave one group behind.
What is the difference between for profit and nonprofit?
When considering the feasibility, financing, insurance and retrofit costs - NOTHING.
When considering the ability to finance up front costs - NOTHING.
When considering a tax-abatement that defunds schools - NOTHING.
When considering a tax-abatement that defunds social programs - NOTHING.
The Mandate History
In 2016, the City of Portland published a list of what they determined were URM’s (unreinforced masonry buildings) by using google maps, past permits, and “drive by” inspections by PSU students. By the City’s own admission, the resulting list is highly inaccurate.
Three committees over nearly 4 years were formed by ex-commissioner, Steve Novick and composed of city staff, engineers, architects, developers, large building owner organizations, Portland Public Schools and one church representative.
Missing from this process were small individual and “Mom and Pop” building owners, owner-operator businesses, small business tenants, residential tenants, churches, artist studio tenants, music venues,condo owners and owners and tenants of color. The disenfranchised have had NO voice.
Building owners and observers have been trying to answer that question. In a city full of small main street buildings that identify the diverse neighborhood centers, we continually scratch our heads trying to figure out why just these buildings and why now?
Why with 93% of the buildings being 1-3 story, small in stature and low-occupancy, would the city focus on these buildings when the City of Portland owns dozens of buildings, including these:
30+ Apartment Buildings
The Firehouse Theater
The Children’s Museum
Interstate Cultural Center
Mt. Scott Community Center
Dishman Community Center
Multnomah Arts Center
With cranes on every corner and a construction boom, the timing of this mandate threat on main streets is interesting. Why not the over 100,000 homes that PBEM identified as needing retrofits? Why not the high rises built along the river and in the liquefaction zones? Why not the gas lines, fuel tanks, bridges and over passes? Why not the “other risky buildings” deleted form the final report to:
Purposely PUSH an agenda for a YES vote for just URMs? Why?
What about schools?
We fully support prioritizing Schools and Critical Buildings. Today, only 4% of Portland Public Schools are fully retrofitted.
On Nov. 8, 2017, a Portland Public Schools representative warned the City that mandating private buildings will work against goals to retrofit schools by making it more difficult and costly.
The State of Oregon voted against $337 million in retrofits for the State Capitol in order to prioritize Oregon's Schools.
In contrast, the City of Portland is proposing a tax abatement (SB-311) for private building owners. That abatement would take revenue from Portland Schools and the State School Fund at a time when school funds are depleted. We believe public funds should be prioritized to update and fund the schools.
Ken Rust, Chief Financial Officer, Portland, Oregon email 11/9/17:
"If SB 311 is enacted, public schools would experience property tax revenue loss."
PORTLAND MUST DO BETTER!
NO NEGATIVE PLACARDING
No “Scarlet Letter” (on individual buildings)
Fix the City list of URMs (city admits it is not accurate)
Educate the community on earthquake readiness (liquefaction zones, schools, gas lines and safety plans)
We, along with the groups below, oppose approval for placarding.
• The NAACP
• Restore Oregon
• Architectural Heritage Center
• Portland Tenants United
• Oregon Chinese Benevolent Association