Bristol Creek Homes & Development

A decision concerning a request for placing an encroachment within the right-of-way of a sidewalk concerns the maintenance and preservation of a transportation facility for purposes of ORS 197.015(10)(b)(D), and is therefore outside of LUBA’s jurisdiction.

Petitioner, Bristol Creek Homes and Development (petitioner) appealed a decision of the Portland Bureau of Transportation (PBOT), denying its application for an encroachment permit and ordering it to remove a retaining wall built within a public right-of-way. Petitioner was granted a waiver for a one-foot reduction to the planting strip and one-foot reduction to the buffer, causing two feet of the dedicated right-of-way to no longer be within the frontage zone or buffer. The Review Committee required Bristol to have no encroachments constructed in the public right-of-way. Despite this, petitioner constructed a retaining wall within the public right-of-way, but outside the frontage zone and buffer. The petitioner sought a revocable encroachment permit from PBOT, which was denied.

The City of Portland (City) moved to dismiss the case by asserting that the decision was outside of LUBA’s jurisdiction because it is within an exception to the ORS 197.015(10)(a) definition of “Land use decision.” In order to be subject to LUBA’s jurisdiction, the decision must be “a final local government decision that ‘concerns the application’ of a comprehensive plan provision or land use regulation.” The exception under ORS 197.015(10)(b)(D) excludes local government decisions regarding final decisions concerning transportation facilities. Petitioner argued that the exception does not apply since the “requested encroachment is not into a ‘transportation facility’” as the term is used within ORS 197.015(10)(b)(D).

LUBA disagreed, finding that a “sidewalk transportation facility includes more than the built portion of the sidewalk.” The encroachment into the right-of-way concerns the “maintenance” and “preservation” of a transportation facility for purposes of ORS 197.015(10)(b)(D). LUBA deemed that this case was within the ORS 197.015(10)(b)(D) exception. Pursuant to petitioner’s motion to transfer the case to circuit court if LUBA lacked jurisdiction, LUBA transferred the matter to Multnomah County Circuit Court. TRANSFERRED.