An earthquake warning sign hangs on an unreinforced masonry building in North Portland. The signs aren’t yet required for most buildings under a city ordinance, and a lawsuit aims to keep it that way.
Owners of brick buildings hope this week to permanently shut down a Portland city ordinance that would require warning signs on brittle brick buildings that are especially vulnerable to earthquakes.
The building owners are asking a federal judge to make permanent an order that prevents the city from enforcing its ordinance, which has been amended several times since it first passed in October. The rule would require building owners to post the placards by November 2020.
It’s the latest in the back-and-forth over the signs, the city’s strongest response to date over the risk of a major earthquake in a region where smaller earthquakes are rare and there’s been little incentive for building owners to make expensive safety upgrades on their own.
U.S. Magistrate Judge John Acosta has already prevented the city from enforcing the rule while he weighs building owners’ argument that it’s unconstitutional. This week, he’ll hear arguments from building owners and city officials before making a final decision.
Portland is believed to have more than 1,600 vulnerable brick buildings, among them restaurants, churches, apartments, performance venues and schools. Seismic experts, meanwhile, say the city has about a one in four chance of suffering a major 8.0-or-greater earthquake in the next 50 years.
The building owners have said it’s a free speech issue because the city is forcing building owners to promote its message. They also said the city has denied them the right to due process by putting their buildings on a list of “unreinforced masonry buildings” without sufficient evidence or opportunities to appeal.
Walt McMonies, who spent $1.1 million retrofitting his Trinity Place Apartments but which falls just short of being exempt from the placarding agreement, represents the Masonry Building Owners of Oregon, a plaintiff in the case.
He testified Tuesday that the signs are misleading because they don’t differentiate between a building that’s substantially reinforced like his and one that’s had no upgrades at all.
“I think I’m lying” by posting the placard, he said.
Building owners stand to lose tenants — in apartments, offices and storefronts — who are uncomfortable living or working in a vulnerable building, or who feel their customers might be wary of entering the building. They also face astronomical costs to retrofit the buildings and say they would as likely be forced to sell to a developer who would tear it down.
They have argued for public assistance in funding the retrofits, and the city has vowed to push for a state program to address the issue.
But meanwhile, attorneys for the city argued it’s well within the city’s rights to require signs that city officials say will promote public safety.
“Unreinforced masonry buildings are more dangerous to their occupants and passersby than any other kind of structure,” said Deputy City Attorney Denis Vannier. “There is no reasonable dispute over these dangers.”
Attorneys for the city compared the placards to lighted exit signs required under fire codes or no-smoking signs posted near building entrances under state law.
Among the Portland officials called to testify was retired City Commissioner Dan Saltzman, a key architect of the ordinance who oversaw the city’s Bureau of Emergency Management.
John DiLorenzo, an attorney for the building owners, pressed Saltzman on statements he made in City Council meetings and to the press indicating a desire for the placards to put pressure on building owners to make seismic upgrades.
Saltzman seemed to affirm those statements, acknowledging the ordinance might make tenants avoid unreinforced masonry buildings and push landlords to retrofit or demolish the buildings in response.
“The purpose of the ordinance was to give people information in the belief that when people have information they make better decisions,” Saltzman said.
That could bolster the building owners’ free speech argument. DiLorenzo said the city avoided politically unpopular mandates that could achieve its goals, instead turning to the more constitutionally problematic approach of compelling speech through placards. Courts have previously held that governments should first exhaust options that don’t infringe on speech, DiLorenzo said.
The ordinance has also attracted opposition from the National Association for the Advancement of Colored People because it would affect a large number of predominately black churches and other buildings in historically black neighborhoods. Its enforcement, the organization said, would further the displacement of black residents and businesses from those neighborhoods that has resulted from other city policies.
City Commissioner Jo Ann Hardesty earlier this year directed the Portland Fire Bureau, which she oversees, not to enforce the ordinance, and Acosta later ordered the city not to enforce it at all. (The city Bureau of Development Services, overseen by Mayor Ted Wheeler, also plays a role in enforcing the ordinance.)
Hardesty later proposed to tweak the ordinance, delaying it until November 2020 for non-government buildings. She also eliminated a requirement that earthquake warnings be memorialized in residential leases and in county property records. A warning would be required on rental applications instead.
— Elliot Njus
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