Phillips v. Polk County

Where a local government decision merely touches land uses in the area, LUBA will hold that the decision is not a statutory land use decision under ORS 197.015(10). Billington v. Polk County, 703 P2d 232 (1985). Where a local government decision is not a statutory land use decision and does not significantly impact current or future land uses in the area, LUBA will hold that the decision is not within LUBA’s jurisdiction. City of Pendleton v. Kerns, 653 P2d 992 (1982).

Petitioner and Intervenor own property on either side of a county road which is improved in sections, but unimproved between the two properties. Intervenor petitioned the County to vacate the unimproved portion pursuant to ORS 368.326 to 368.366. The County granted Intervenor’s petition. Petitioner appealed to LUBA.

The County moved to dismiss the appeal, arguing that LUBA had no jurisdiction over the matter because the County’s decision was not a statutory land use decision under ORS 197.015(10). Petitioner argued that the County failed to requisitely apply the Polk County Comprehensive Plan (PCCP) in its decision. LUBA reasoned that, for the PCCP to apply to the decision, and therefore for the decision to be a land use decision, it must concern, not merely touch, land uses in the area. Billington v. Polk County, 703 P2d 232 (1985). LUBA held that because Petitioner failed to show that the County was required to apply the PCCP, Petitioner failed to show that the County’s decision is a land use decision.

The County also argued that LUBA had no jurisdiction over the matter because the Board’s decision did not satisfy the “significant impacts” test. Under the significant impacts test, a decision that does not qualify as a statutory land use decision may still be within LUBA’s jurisdiction if the decision significantly impacts present or future uses in the area. City of Pendleton v. Kerns, 653 P2d 992 (1982). Petitioner argued that their current use of the unimproved road and future use of the vineyard section of their property would be significantly impacted by the County’s decision because there was no other access to the vineyard. LUBA reasoned that the County’s decision would significantly impact Petitioner’s uses of their property if the section of unimproved road was used. However, Petitioner failed to show use of the unimproved section, and the record showed that use of the unimproved section was unlikely and that Petitioner had other access to the vineyard. Accordingly, LUBA held the County’s decision did not satisfy the significant impacts test.

LUBA held that because Petitioner failed to show the Board’s decision was either a statutory land use decision or a significantly impacts land use decision, LUBA did not have jurisdiction over the matter.

Dismissed.