Oregon has a unique system for reviewing local land use decisions. Instead of appealing an unfavorable local decision in a trial court (and waiting two years to see a judge who is likely unfamiliar with land use matters), we have the Land Use Board of Appeals, better known as LUBA. It is not a court, but rather an administrative agency created by statute and charged with hearing challenges to local (and some state) land use decisions. Compared with courts in other states it is faster, more accurate, and less expensive than local court review. Most of LUBA’s final decisions are not appealed, and if they are, they are overwhelmingly affirmed.
However, as a statutory agency, LUBA has only those powers given to it by statute. It is not a constitutionally created court that may have authority to resolve all manner of disputes. The lawyer’s word for describing the scope of this power is “jurisdiction.” For example, LUBA cannot hear a case unless a Notice of Intent to Appeal is filed within 21 days of the final local decision. Nor can it accept a Petition for Review filed after the 21-day period from the settlement of the record. These are straightforward, unambiguous jurisdictional limitations.
What is not so easy is another statutory limitation: LUBA may only review certain “land use decisions” of state agencies or local governments, meaning it cannot review other types of decisions made by those entities. The term “land use decision” is defined in state law and that definition is lengthy. Decisions applying the Statewide Land Use Planning Goals, the comprehensive plan and land use regulations are “land use decisions.” The definition expressly excludes certain types of decisions, such as nondiscretionary building permit decisions and decisions over street repairs or how to fund them. Where decisions tread close to these lines, LUBA must determine whether it has jurisdiction to hear the case. Take local regulation of short-term rentals: If the local government merely licenses them, that is not a “land use decision;” however, if the local government decides to allow them based on a comprehensive plan policy or zoning ordinance designation (e.g., the rentals are allowed in single-family zones but not multifamily zones), the application of local plan or zoning regulations may be sufficient to create a land use decision reviewable by LUBA.
In
Neice v. Prosper Portland , decided in early May, the petitioner challenged issuance of a contract for operation of a “navigation center” to provide social services to the homeless. The center had already received land use and design approval, but the existing lease had expired and required renewal. Prosper Portland sought to have the property utilized for the same purpose but under a different arrangement, which became the subject of petitioner’s challenge. The city moved to dismiss the case, contending it was not a “land use decision.”
LUBA unanimously granted the motion to dismiss, finding that the decision did not involve consideration of the city’s comprehensive plan or zoning code. However, the petitioner asserted a further basis for LUBA jurisdiction: i.e., that the decision would have a “significant impact on present or future land uses.” This additional category cannot be found in any statute. Instead, it is the product of court decisions, one of which predated the creation of LUBA. “Significant impact land use decisions” focus on the magnitude of the impacts, instead of the connection between the plan or regulation and the challenged action. Applying past precedent, LUBA agreed with the city that the significant impacts were determined in the previous land use review. LUBA also declined to exercise jurisdiction due to alleged incompatibility of the use with the applicable urban renewal plan, finding that this document was neither a comprehensive plan nor a land use regulation. Thus, the case was unanimously dismissed for lack of jurisdiction.
A concurring opinion by Board Chair Melissa Ryan went further, however, suggesting that there was no statutory ground for LUBA to hear the case and that the “significant impacts” test simply did not exist and thus could not be applied. The concurrence asserted that the case law accreted over the years affirming the use of the “significant impacts test” (including a Court of Appeals decision this year in which the provenance of the test was not raised) did not directly confront the statutory limitations of LUBA’s jurisdiction. The concurrence concluded that the test was unworkable as a practical matter. That seems true, because the term “significant” is highly discretionary and depends more on the skill of a lawyer advocating rather than the routine act of connecting land use criteria to a challenged action.
The concurrence had to tread carefully, because LUBA cannot overrule appellate court precedence. Instead, it “respectfully” urged the Oregon Legislature or the Oregon Supreme Court, to reconsider the significant impacts test in the light of the statutory limits on LUBA’s authority.
LUBA’s decisions are frequently mechanical in nature: most often they involve correct application of law to facts and determining whether the judgment call on factual disputes is such that a reasonable person could believe. It is not often that a LUBA case presents such an unusual issue that transcends its quotidian decision-making. This careful work within a concurring opinion deserves legislative and appellate court consideration.
Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at esulliva@gmail.com. Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or crichter@batemanseidel.com. The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither author nor the DJC guarantees the accuracy or completeness of any information published herein. Copyright © 2024 BridgeTower Media. All Rights Reserved.
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