Haj v. City of Portland

Where a local government’s decision falls under the exception to LUBA’s jurisdiction under ORS 197.015(10)(b)(D), the “significant impacts” test, which may give LUBA jurisdiction over decisions that do not qualify as a “land use decision” but create “an actual qualitatively or quantitatively significant impact” on surrounding land uses, will not grant LUBA jurisdiction over the appeal. Fire Mountain Gems and Beads v. City of Grants Pass, 57 Or. LUBA 597, 606-07 (2008) (citing Oregonians in Action v. LCDC, 103 Or. App. 35, 38, (1990)).

Petitioner appealed the City’s approval of plans to remove a traffic circle as part of a new street design. On appeal to LUBA, Petitioner argued the proposed design was inconsistent with the comprehensive plan, that it was inconsistent with the provisions regarding greenways and bikeways, and could increase traffic, contrary to the street’s functional classification as a local street. In response, the City argued the design was consistent with the plan and provisions, and the decision fell within the exception to LUBA’s jurisdiction under ORS 197.015(10)(b)(D). Petitioner countered that: (1) the exclusion at ORS 197.015(10)(b)(D) did not apply because the proposed design was in fact inconsistent with the City’s Transportation System Plan (TSP), and (2) LUBA had jurisdiction under the “significant impacts” test because the City’s decision created “actual qualitatively and quantitatively significant impacts on nearby land uses.”

Under ORS 197.015(10)(b)(D), a “land use decision” subject to LUBA’s review does not include a decision by 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[.]" While LUBA has found jurisdiction for decisions not otherwise qualified as “land use decisions” when there are “actual qualitatively or quantitatively significant impact[s] on present and future land uses,” Carlson v. City of Dunes City, 28 Or. LUBA 411, 414 (1994) (citing City of Pendleton v. Kerns, 294 Or. 126 (1982), and Billington v. Polk County, 299 Or. 471, (1985)), the “significant impacts” test does not apply when ORS 197.015(10)(b)(D) specifically excludes a decision from LUBA’s jurisdiction. Fire Mountain Gems and Beads v. City of Grants Pass, 57 Or. LUBA 597, 606-07 (2008) (citing Oregonians in Action v. LCDC, 103 Or. App. 35, 38, (1990)).

LUBA agreed with Respondent that the decision fell within the exception to its jurisdiction under ORS 197.015(10)(b)(D).

As to Petitioner’s argument that the proposed design was inconsistent with the TSP, LUBA noted the purported TSP map submitted by Petitioner did not depict the traffic circle Petitioner claimed was required, and Petitioner had not established that map was in the record, nor that the map was intended to show plan requirements rather than current conditions. Regarding the provisions for greenways and bikeways, LUBA reasoned that they required only that traffic be slowed on those street types, and that the City’s engineers had chosen other methods to slow traffic. Petitioner’s disagreement with that choice was not enough to show the City’s decision was contrary to the TSP. LUBA also found that Petitioner had failed to cite any authority disproving the City’s claim the traffic usage was consistent with the street’s classification as a local street.

As to Petitioner’s argument that LUBA had jurisdiction under the “significant impacts” test, LUBA held that, as the City pointed out, the court-created “significant impacts” test does not apply to grant LUBA jurisdiction when ORS 197.015(10)(a) specifically excludes the decision from its review.

As Petitioner had not met their burden to show the City’s decision did not fall within the exception to LUBA’s jurisdiction, LUBA concluded they lacked jurisdiction to hear Petitioner’s appeal.

Transferred.