1st John 2:17, LLC v. City of Boardman

Where a local government awards a contract for a project identified in a comprehensive plan, the decision to do so generally does not constitute a “land use decision” because it does not “concern the application of a comprehensive plan.” Where a local government awards a contract dependent on another process, such as zoning permitting, the contract is not a “final decision” as required by ORS 197.015(10)(a).

Petitioners appealed the City’s decision to award a contract to a construction company to create a road authorized in the Port of Marrow Interchange Area Management Plan (IAMP).

The City moved to dismiss the appeal, arguing that the contract fit into the exception in ORS 197.015(10)(b)(D), providing that a “land use decision” does not include a decision of a local government “[t]hat determines final engineering design, construction, operation, maintenance, repair or preservation of a transportation facility that is otherwise authorized by and consistent with the comprehensive plan and land use regulations.” Petitioners argued that the contract was a land use decision and inconsistent “with the city’s comprehensive plan and land use regulations.” ORS 197.825(1) provides that LUBA has exclusive jurisdiction to review “land use decisions.” ORS 197.015(10)(a) defines a land use decision, in part, as “a final decision or determination made by a local government" that concerns the application of a comprehensive plan provision or land use regulation. LUBA denied the appeal for lack of jurisdiction, reasoning that the contract did not “concern the application of a land use regulation,” because in most situations, as in the instant case, a city’s decision to award a contract does not involve application of the city’s zoning code or comprehensive plan. Furthermore, the contract did not constitute a “final decision,” because, at the time it was awarded, work could not begin until the City issued zoning permits. Transferred to Morrow County Circuit Court.