Luther v. City of Albany

LUBA has jurisdiction over "any land use decision or limited land use decision of a local government." A local government decision that does does not concern the adoption of a comprehensive plan is not a "land use decision" under ORS 197.015(10)(a)(A).

The City previously notified Petitioner that Petitioner was required to install a backflow device on a well on Petitioner’s property pursuant to Albany Municipal Code (AMC) 11.01.22(2)(a). Petitioner attended a city council meeting and petitioned for relief during the public business portion of the meeting where the City interpreted “can be” within AMC 11.01.22(2)(a) “to mean 'anytime it would be physically possible to’ connect an auxiliary water supply to the city's potable water piping a backflow prevention device is required” (the Decision). Luther v. City of Albany, __ Or LUBA ___, (2023). Petitioner filed a Notice of Intent to Appeal the Decision with LUBA. LUBA raised the issue of jurisdiction and the parties filed memoranda on the issue.

ORS 197.825(1) provides that LUBA “shall have exclusive jurisdiction to review any land use decision or limited land use decision of a local government… in the manner provided in ORS 197.830 to 197.845.” ORS 197.015(10)(a)(A) provides, in part, that a land use decision includes a local government decision that concerns the adoption of a comprehensive plan provision or a land use regulation. ORS 197.015(5) provides that a comprehensive plan is “a generalized, coordinated land use map and policy statement of the governing body of a local government that interrelates all functional and natural systems and activities relating to the use of lands, including but not limited to sewer and water systems… and air and water quality management programs.” ORS 197.015(11) provides that land use regulation includes “any local government zoning ordinance, land division ordinance … or similar general ordinance establishing standards for implementing a comprehensive plan.”

The provision at issue is within AMC title 11 which contains rules and regulations for the city's water system. Within AMC title 20 is the Albany Development Code (ADC). A purpose of the ADC is to “[s]erve as the principal vehicle for implementation of the City’s Comprehensive Plan…” ADC 1.020(1). Petitioner argued that AMC title 11 implements the Albany Comprehensive Plan (ACP) and because the Decision concerned the application of a comprehensive plan provision it was a land use decision therefore LUBA had jurisdiction. Petitioner cited the background summary of ACP Goal 6 Air, Water, and Land Resources Quality).

The City argued that AMC title 11 does not implement the ACP and is not a land use regulation because it does not give any criteria for making the Decision therefore the Decision is not a land use decision that LUBA would have jurisdiction. Agreeing with the City, LUBA reasoned that Petitioner failed to meet their burden of proof to show the Decision was a land use decision because Petitioner did not sufficiently argue that AMC title 11 implements the ACP and Petitioner did not specify ACP provisions used as criteria for the Decision.  Accordingly, LUBA held that the Decision was not a statutory land use decision therefore LUBA did not have jurisdiction over the matter.