House v. City of Bend

Where a petitioner does not develop a response to local government’s argument that its decision was not a “land use decision” pursuant to ORS 197.015(10)(a)(A) because it applied a design standard rather than a land use regulation, LUBA will hold that the petitioner has failed to meet their burden of establishing that the challenged decision is a "land use decision" under Billington v. Polk County, 703 P2d 232 (Or. 1985). Accordingly, LUBA will deny jurisdiction.

Petitioner challenged a city engineer’s decision denying a right-of-way permit for driveway access from Petitioner's property to an abutting arterial. In October 2021, a project engineer referenced Bend Development Code (BDC) 3.1.400(F)(3) when informing Petitioner that they would not recommend the City approve the right-of-way. In December 2021, the assistant city engineer cited the City's "standards" when informing Petitioner that their permit would not be approved. In their final decision to deny the permit in April 2022, the assistant city engineer stated that their decision had not changed since December 2021. Petitioner then filed a petition for review. 

A "land use decision" includes: "a final decision or determination made by a local government . . . that concerns the adoption, amendment or application of: (i) [t]he goals; (ii) [a] comprehensive plan provision; [or] (iii) [a] land use regulation[.] ORS 197.015(10)(a)(A). A local government's action "concerns" the application of a comprehensive plan provision or land use regulation when it is (1) actually applied in making the decision or (2) should have been applied in making the decision. Jaqua v. City of Springfield, 46 Or LUBA 566, 574 (2004).

The City moved to dismiss the appeal on the basis that the challenged decision was not a "land use decision,” arguing that the city engineer's reference in December 2021 to the City’s "standards" meant that it applied its Design Standard, not Bend Development Code. In response to the motion to dismiss, Petitioner argued that in October 2021, the project engineer said that they would not recommend approval pursuant to BDC 3.1.400(F)(3), indicating that the City applied a land use regulation in making its decision, thereby making it a land use decision. 

As the party seeking LUBA review, the burden is on a petitioner to establish that an appealed decision is a land use decision. Billington v. Polk County, 703 P2d 232 (Or. 1985). LUBA reasoned that by failing to develop a response to the City's argument that their decision was based on Design Standards, and not Bend Development Code, Petitioner failed to meet their burden of establishing that the appealed decision was a land use decision. Accordingly, LUBA denied jurisdiction over the challenged decision. 

The appeal is transferred to Deschutes County Circuit Court.