McCaffree v. City of North Bend

(1) Under ORS 197.015(10)(b)(H), where a LUCS merely identifies the required future land use reviews without going further to approve or deny them, LUBA lacks jurisdiction. (2) Arguments that the proposed use underlying a LUCS poses a risk of explosion are insufficient to establish that the residents of a city are adversely affected and therefore have standing to challenge the LUCS where the LUCS itself authorizes no development activity.

Intervenor requested a Land Use Compatibility Statement (LUCS) from the city as part of a Department of Environmental Quality permit application to install a natural gas pipeline on property zoned Heavy Industrial (M-H), a portion of which is subject to estuary and floodplain overlays. On the LUCS form, the city noted that, because “utility operations and facilities” are an outright permitted use in the M-H zone, no further land use reviews were required for those sections of pipeline outside the overlay zones. The city also noted that estuary, floodplain, and engineering permits were required for those sections of pipeline within the overlay zones. Without approving or denying those permits, the city issued the LUCS. This appeal followed.

Under ORS 197.015(10)(b)(H), LUCS for proposed uses that (1) the local government has already authorized, (2) do not require the local government’s authorization, and (3) will require the local government’s future authorization, are not subject to LUBA’s jurisdiction. In the second assignment of error, petitioner argues the pipeline does not qualify as a “utility” facility because it proposes to transport gas for export, rather than local consumption, and the city therefore erred in concluding that no further land use reviews were required outside the overlay zones. Because petitioner identifies nothing in the city’s code requiring a “utility” facility to serve local customers, LUBA concludes that the city did not mischaracterize the pipeline for purposes of issuing the LUCS. In turn, because those sections of pipeline outside the overlay zones do not require the local government’s authorization, and because the city merely identified the permits required for those sections of pipeline inside the overlay zones without going further to approve or deny them, LUBA lacks jurisdiction under ORS 197.015(10(b)(H).

Under ORS 197.830(3), in order to establish standing where no hearing is held prior to the challenged decision, a petitioner must demonstrate that they are “adversely affected” by the decision. Petitioner argues they are adversely affected because the city failed to provide them an opportunity to argue that the pipeline is not a “utility” facility and because the pipeline’s risk of explosion creates a presumption that all city residents are adversely affected. Because petitioner cites no authority for the claim that they had a right to participate in the decision, and because the LUCS itself authorizes no development activity and therefore creates no risk of explosion, LUBA agrees with intervenor that petitioner is not adversely affected and lacks standing. In turn, because transfer to circuit court is not appropriate where LUBA lacks jurisdiction for reasons other than that the decision is not a land use decision, the appeal is DISMISSED.