Arbor Lodge v. City of Portland

Under ORS 197.015(10)(a), a decision granting an extension of a building permit application pursuant to International Building Code 2007, the Oregon Structural Specialty Code, and local code provisions governing building permit applications is not a land use decision.

Intervenor applied for a building permit to construct an apartment building. When the application was about to expire, intervenor requested an extension to the application. Under International Building Code (IBC) 2007, section 105.3.2, “[a]n application for a permit for any proposed work shall be deemed to have been abandoned 180 days after the date of filing . . . ; except that the building official is authorized to grant one or more extensions of time . . . not exceeding 90 days each.” Citing IBC 2007, the Oregon Structural Specialty Code (OSSC), and Portland City Code (PCC) 24.010.070(J), the city granted a series of extensions. These appeals followed.

Under ORS 197.825(1), LUBA has jurisdiction to review any “land use decision.” Under ORS 197.015(10)(a), a decision qualifies as a land use decision if it either applied or should have applied a statewide planning goal, comprehensive plan provision, or land use regulation. Arguing none of the extensions required the city to apply a goal, plan, or land use regulation, and therefore that none qualify as a land use decision, respondents move to dismiss the appeals. Because no extensions applied any portion of Portland City Code (PCC) Title 33, the city’s land use code, and because building and structural code provisions such as IBC 2007, OSSC, and PCC Title 24 are not land use regulations, LUBA agrees with respondents that no land use regulations were in fact applied.

Petitioner responds that, (1) in granting the extensions, the city should have applied PCC 33.700.010 and (2), because the extensions were discretionary, they were land use decisions under ORS 197.015(10)(b)(B). While PCC 33.700.010 requires that initial building permit applications comply with zoning regulations, nothing requires its application to extensions. In addition, while ORS 197.015(1)(b)(B) exempts only building permit decisions made under “clear and objective” standards from the definition of “land use decision,” the fact that a building permit decision is discretionary has no bearing on whether it applied or should have applied a goal, plan, or land use regulation. Thus, LUBA agrees with respondents that no land use regulation should have been applied.

Under Northwest Trail Alliance v. City of Portland, 71 Or LUBA 339 (2015), LUBA has jurisdiction to review decisions that do not qualify as “land use decisions” if they have significant qualitative or quantitative effects on present or future land uses and if the petitioner identifies non-land-use standards that both apply to the decision and have some bearing or relationship to the use of land. Although petitioner argues the extensions have a significant impact on land use because the proposed apartment building does not meet various zoning requirements adopted after the initial application was filed, LUBA concludes the decision is not a “significant impacts” land use decision because it does not alter any of the present, future, or allowed land uses in the underlying zone and because none of the standards applied by the city have any bearing or relationship to the use of land. The appeals are therefore DISMISSED.