Van Dyke v. Yamhill County

LUBA will only exercise its jurisdiction under the judicially created significant impacts test if the petitioner identifies non-land-use standards that apply to the decision and would govern LUBA’s review, and that have some relationship to the use of land.

In 2018, the county legislatively amended its comprehensive plan to acknowledge county ownership of a former railroad right-of-way and to authorize construction of a trail therein. Concluding that that decision required a conditional use permit (CUP) and application of ORS 215.296, LUBA remanded it. Shortly thereafter, but before initiating remand proceedings, the county entered into a contract with an engineering firm to design three bridges for the trail. This appeal followed. Arguing that the county’s decision to enter into the contract was not a land use decision, the county moves to dismiss the appeal for lack of jurisdiction and to suspend the deadline for submitting the record pending resolution of that motion. In turn, petitioners move to compel filing the record or, in the alternative, for an evidentiary hearing.

With respect to filing the record, although petitioners have a copy of the contract, petitioners argue they did not have several documents incorporated by reference into the contract that were necessary to respond to the county’s motion to dismiss. Because LUBA agrees with the county that none of the documents incorporated by reference into the contract have any bearing on whether the county’s decision to enter into it was a land use decision subject to LUBA’s jurisdiction, petitioners’ motion to compel is denied.

Under OAR 661-010-0045, LUBA may take evidence not in the record to establish procedural irregularities and ex parte contacts, among other things. Petitioners argue that the county should have—but did not—conduct its decision to enter into the contract according to land use permit procedures requiring notice and a hearing, that county staff engaged in ex parte contacts with decision makers, and that an evidentiary hearing is necessary to establish those allegations. Because LUBA concludes that consideration of evidence outside the record is unnecessary to determine whether the county’s decision was a land use decision, petitioners’ request for an evidentiary hearing is denied.

In response to the motion to dismiss, petitioners argue that, because the county’s decision authorized construction of the bridges on land zoned Exclusive Farm Use, which requires application of the farm impacts test under ORS 215.296, it was a land use decision under ORS 197.015(10)(a). Although the contract was an important step toward construction of the bridges, LUBA agrees with the county that it did not actually authorize such construction. Because the contract did not authorize the use or development of land, and therefore did not concern the application of any land use regulation, LUBA concludes the county’s decision to enter into it was not a land use decision under ORS 197.015(10)(a). While the choice to enter into an engineering contract before obtaining land use approval is unusual, that does not change the result.

Under City of Pendleton v. Kerns, 294 Or 126, 653 P2d 992 (1982), while a decision may not qualify as a “land use decision” under ORS 197.015(a)(A), it may nonetheless be deemed reviewable as a land use decision if, among other things, it creates “an actual, qualitatively or quantitatively significant impact on present or future land uses.” Petitioners argued that, because the bridges will have a significant impact on present and future land uses, the county’s decision qualified as a land use decision under Kerns’ “significant impacts” test. However, because the contract did not authorize any use or development of land, LUBA concludes it could not have any impacts on land use at all, let alone significant ones. Moreover, even if the contract would have significant land use impacts, LUBA has held that it should exercise its jurisdiction under the significant impacts test only if the petitioner identifies non-land-use standards that apply to the decision and would govern LUBA’s review, and that have some relationship to the use of land. This might be the case, for example, if LUBA were called on to consider the land use impacts of a road vacation decision, which is not a land use decision under ORS 197.015(10) but which may have significant impacts on the use of land. In that case, LUBA would evaluate the local government’s compliance with the road vacation criteria. Here, because petitioners identify no such standards applicable to the contract, LUBA concludes the county’s decision was not a land use decision and the appeal is DISMISSED.