Vaccher v. City of Eugene

Under ORS 197.825(1) and EC 9.1070(3), LUBA lacks jurisdiction to review utility public way use permit decisions concerning areas that are not designated on the zoning map.

Petitioners appeal a city approval of a permit authorizing installation of telecommunication facilities. Under ORS 197.825(1), LUBA has jurisdiction over land use and limited land use decisions. Under ORS 197.015(10)(a)(A), land use decisions are decisions made by local governments concerning the application of land use regulations. Under ORS 197.015(12), limited land use decisions are decisions pertaining to sites within an urban growth boundary that concern land divisions or that are subject to discretionary standards regulating the physical characteristics of permitted uses. Under Eugene Code (EC) 9.1070(3), right-of-way areas that are not designated on the zoning map are unzoned. 

The city argues that LUBA lacks jurisdiction because its approval of the facilities placement involved neither the application of any land use provisions, the division of land, nor the application of discretionary standards to regulate physical characteristics. Specifically, the city argues that, because the facilities are in the right-of-way, they are unzoned and therefore not subject to the city’s land use regulations. Petitioners respond that LUBA has jurisdiction because judgment must be exercised in resolving the ambiguity of whether the residential zone starts at the property boundary or whether the right-of-way within private property is identified on the zoning map. Because aerial photographs and a plat map show the utility poles to be located within the right-of-way approximately 15 feet from petitioners’ property line, and because the zoning map shows that the zoning does not extend into the public right-of-way, LUBA agrees with the city that petitioners’ theory is not supported by evidence, that the facilities are located within the unzoned right-of-way and therefore not subject to city land use regulations, and that LUBA lacks jurisdiction. The appeal is therefore DISMISSED.