The plaintiffs — a nonprofit coalition of brick building owners, developer John Beardsley’s company and building owner Jim Atwood — are asking a court to rule the ordinance unconstitutional under free-speech and due-process rights.
The City Council passed the ordinance in October. It would require owners of brick and similar buildings to prominently post signs with the disclosure: “This is an unreinforced masonry building. Unreinforced masonry buildings may be unsafe in the event of a major earthquake.”
The same warning must be distributed to tenants of the building under the rule, which was set to take effect for most affected buildings in March.
But the building owners are seeking an injunction, saying in their lawsuit filed Wednesday that the ordinance violates their First Amendment rights.
“The government is forcing private property owners to basically broadcast the government’s message instead of their own,” John DiLorenzo, the building owners' attorney, said Thursday. The city, he said, could just as easily notify building residents by mailing a flier or brochure.
The city is applying the mandate unequally, he said, because it set a longer timeline for buildings owned by nonprofits, which have until November 2020 to comply.
Portland is believed to have more than 1,600 unreinforced masonry buildings that have stood, on average, almost 90 years. The brittle materials holding those buildings up are less likely to survive a major earthquake such as the Cascadia subduction zone quake that experts say will likely hit the West Coast in the coming decades.
But building owners said some might be compelled to comply even though their buildings are fully or partially reinforced because the city can’t guarantee the accuracy of its unreinforced masonry building database list. To avoid the requirement, building owners must prove their buildings have been upgraded — a process they say is invasive and expensive.
“if your building is on the list you’re guilty until proven innocent,” said Kathy Rogers, who owns a masonry apartment building in Southeast Portland.
The dispute is an early taste of the opposition the city could face if it requires seismic upgrades for those buildings. The city is just beginning to write those ordinances, but the City Council has signaled the requirements likely wouldn’t take effect for at least 20 years.
But the suing building owners say the placarding ordinance effectively forces them to upgrade or lose tenants and customers because of the stigma imposed by the placard.
Atwood said the city, through a 2015 seismic upgrade program, estimated the cost of an upgrade for a three-story building he owns in Northwest Portland at $1.3 million, not including architectural costs and loss of revenue from vacating the building. The cost to rebuild from scratch would come to $940,000, he said.
The city has underestimated retrofit costs publicly when promoting the ordinance, Atwood said.
“Nobody really recognized the true costs involved," Atwood said. "We’re all interested in safety. We all want our buildings to last forever. But there’s a point of diminishing returns particularly when your buildings are already up to current code.”
The Portland Bureau of Emergency Management and Mayor Ted Wheeler’s office declined to comment on pending litigation.
Commissioner Dan Saltzman, who is named in the lawsuit as the commissioner in charge of the Portland Bureau of Emergency Management until he leaves office at the end of the year, said the city was confident its ordinance is constitutionally sound and described the lawsuit as “frivolous.”
“I think the placarding ordinance gives people more information,” Saltzman said. “The city has information that these buildings that could be unsafe in an earthquake. It’s our obligation to our residents to make sure they have this information, too."
-- Elliot Njus
enjus@oregonian.com; 503-294-5034; @enjus
Visit subscription.oregonlive.com/newsletters to get Oregonian/OregonLive journalism delivered to your email inbox.
———
©2018 The Oregonian (Portland, Ore.)
Visit The Oregonian (Portland, Ore.) at www.oregonian.com
Distributed by Tribune Content Agency, LLC.
