Neice v. Prosper Portland

No. 631 September 5, 2024 735

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

Joan NEICE

and Michael Galizio,

Petitioners,

v.

PROSPER PORTLAND

and City of Portland,

Respondents.

Land Use Board of Appeals

2023091; A184437

Submitted July 16, 2024.

Ross Day and Day Law, P.C., filed the brief for petitioners.

Linly Rees filed the brief for respondents.

Before Ortega, Presiding Judge, Powers, Judge, and

Hellman, Judge.

ORTEGA, P. J.

Affirmed.

736 Neice v. Prosper Portland

ORTEGA, P. J.

Petitioners seek judicial review of a final order of

the Land Use Board of Appeals (LUBA) granting the City of

Portland and Prosper Portland’s motion to dismiss for lack of

common law jurisdiction. Petitioner had challenged Prosper

Portland’s Resolution 7512.1 We review LUBA’s final order

to determine whether, as petitioners allege, its decision is

unlawful in substance. ORS 197.850(9)(a). We conclude that

it is not and affirm.

The operative facts are not in dispute. Pursuant

to a lease agreement, the City of Portland used a building

owned by Prosper Portland, the city’s urban renewal agency,

as a navigation center for unhoused individuals.2 The lease

agreement did not permit lease extensions beyond December

2023, so Prosper Portland passed Resolution 7512, which

granted the city a use permit to continue operating the nav-

igation center out of the building.

Petitioners sought LUBA’s review of Resolution

7512. They invoked LUBA’s common law jurisdiction, and

in support of jurisdiction, argued that the navigation center

has significantly impacted land use because the center has

attracted unhoused individuals to the surrounding neigh-

borhood, which has led to an increase in crime and violence

against other residents, causing neighbors to fear for their

safety. They also argued that, under our decision in Marks

v. LCDC, 327 Or App 708, 536 P3d 995 (2023), Resolution

7512 was a decision not to change the use of land, which had

significant impacts on land use for the same reasons.

1

We note at the outset that petitioners only invoked LUBA’s common law

jurisdiction and did not seek LUBA’s review pursuant to its statutory authority.

2

The city’s original approval of the construction permit for the navigation

center was challenged as a statutory land use decision before LUBA. LUBA dis-

missed the challenge because it concluded that the city’s approval fit within the

“clear and objective land use standards” exception to LUBA’s review of statutory

land use decisions. Madrona Park, LLC v. City of Portland, 80 Or LUBA 26, aff’d

without opinion, 300 Or App 403, 450 P3d 1050 (2019).

The navigation center also underwent a discretionary design review under

the city’s zoning code. The city approved the navigation center’s design sub-

ject to a few conditions, the city’s Design Commission approved the design on

administrative appeal, and no party petitioned LUBA for review of the Design

Commission’s approval, although it was subject to LUBA’s review as a statutory

land use decision.

Cite as 334 Or App 735 (2024) 737

LUBA rejected petitioners’ arguments invoking its

common law jurisdiction and granted the city and Prosper

Portland’s motion to dismiss for lack of jurisdiction. It con-

cluded that Resolution 7512 was not a land use decision under

the “significant impact test.”3 Petitioners now seek judicial

review of LUBA’s final order dismissing their challenge.

“LUBA’s jurisdiction to review local government

actions derives from both statute and, perhaps surprisingly

for a legislatively created body, the common law.” Akiyama v.

Tillamook County, 333 Or App 315, 317, ___ P3d ___ (2024).

By statute, LUBA has “exclusive jurisdiction to review any

‘land use decision.’ ” ORS 197.825(1). Under the common law,

LUBA has jurisdiction to review local government actions

that will likely have a significant impact on current or pres-

ent land use, even if the action does not fall within the stat-

utory definition of a land use decision; that is, the action

must affect the land use status quo. Akiyama, 333 Or App at

318, 330 (citing Marks, 327 Or App at 727-28). Under either

source of law, the party seeking to invoke LUBA’s review

has the burden of proving that the challenged government

action falls within the agency’s jurisdiction. Akiyama, 333

Or App at 317-18 (citing Billington v. Polk County, 299 Or

471, 475, 703 P2d 232 (1985)).

In this case, petitioners have not demonstrated that

LUBA’s final order dismissing their challenge to Resolution

7512 is unlawful in substance, for two reasons.

First, petitioners’ asserted impacts on land use—an

increase in crime and violence—are not tied to the use of land

in a way that gives rise to LUBA’s common law jurisdiction.

As we have stated, the significant impacts test is concerned

with government actions that affect the land use status quo.

3

In a concurring opinion, LUBA Chair Ryan questioned the validity and

relevance of the significant impact test. In her view, the Supreme Court’s cre-

ation of the common-law test for jurisdiction in Billington v. Polk County, 299 Or

471, 479, 703 P2d 232 (1985), “impermissibly expanded LUBA’s jurisdiction set

forth in ORS 197.825(1).” She explained that, at the time the court introduced the

test, the legislature had not defined a “land use decision” by statute, but it has

since done so. Chair Ryan urged the Supreme Court to overrule Billington and

urged the legislature to confine LUBA’s jurisdiction to only statutory land use

decisions.

We express no opinion on the matter given that Supreme Court decisions are

binding on us unless overruled.

738 Neice v. Prosper Portland

Akiyama, 333 Or App at 330-32. For example, we have held

that a county’s proposed incorporation for a new city within

county lines significantly impacted the land use status quo

of the county because the incorporation fixed boundary lines

for the new city within the county. 1000 Friends of Ore. v.

Wasco Co. Court, 62 Or App 75, 77, 81-82, 659 P2d 1001,

rev den, 295 Or 259 (1983). If incorporation passed, then

land that was not previously available for urban use would

be made available for urban development to accommodate

the new city, which would have had significant impacts on

land use. Id. at 81-82.

By contrast, in Akiyama, we held that a county’s

implementation of a regulatory program for short-term rent-

als did not have significant impacts on land use because any

effect of the program on property owners’ use of their prop-

erty did not concern the designated land use of the short-

term rentals. 333 Or app at 331. The regulatory program

only imposed operational requirements on property owners

intending to use their dwellings as short-term rentals. Id.

at 320. We concluded that those operational requirements

had a de minimis effect on short-term rental properties,

which did not rise to a substantial impact subject to LUBA’s

review. Id. at 332.

Here, petitioners’ assertion that an increase in

crime and violence as a result of the navigation center has

significant impacts on land use does not square with the

case law. Increased rates of crime and violence do not in any

way affect the land use status quo of the neighborhood. That

is, the designated land uses in the area remain the same

as before the adoption of Resolution 7512. Resolution 7512

is not a government decision that would restrict or allow

previously unused land for other land uses, as in Wasco Co.

Court, nor are the increases in crime and violence concerned

with the land use designation of the navigation center or

the surrounding neighborhood, as in Akiyama. Moreover,

Resolution 7512 did not require the application of the city’s

land use planning and zoning responsibilities—those

responsibilities were carried out in earlier decisions by the

city when it granted the building permit and approved the

design of the navigation center. We agree with LUBA that

Cite as 334 Or App 735 (2024) 739

increases in crime and violence are not tied to the land use

status quo such that it has common law jurisdiction over

petitioners’ challenge to Resolution 7512.

To the extent that petitioners argue that operation

of the navigation center affects their use of residential land,

we are not persuaded. As we have explained, “the mere fact

that a [government decision] affects how a person may use

their property does not mean the * * * government action

* * * affects land use in a way that triggers LUBA’s common

law jurisdiction.” Akiyama, 333 Or App at 331; see also Arbor

Lodge Neighborhood Ass’n v. City of Portland, ___ Or LUBA

___ (LUBA Nos. 2019-089/107, May 19, 2020) (slip op at 10)

(finding no significant impacts when a government decision

did “not alter any of the land uses allowed” in the area).4

We also reject petitioners’ contention that LUBA erred when

it concluded that “non-land-use impacts” cannot be consid-

ered for purposes of the significant impacts test. Petitioners

are correct that LUBA has said that challengers to gov-

ernment action may “identify the non-land use standards

that the petitioner believes apply to the decision and would

govern LUBA’s review.” Northwest Trails Alliance v. City of

Portland, 71 Or LUBA 339, 346 (2015). Nevertheless, LUBA

has unequivocally stated that such “non-land-use standards

must have some bearing or relationship to the use of land,

such as when LUBA’s review would be governed by another

“statute or other laws, such as road vacation statutes, that

provide standards for the [government decision].” Id. Here,

petitioners do not identify the non-land-use laws that would

govern Resolution 7512, and otherwise do not demonstrate

that LUBA erred in its final order.

Second, LUBA did not err in concluding that Marks

is inapplicable in this case. In Marks, we held that govern-

ment action to not change an existing situation may give

rise to LUBA’s common law jurisdiction. 327 Or App at

734-35. There, we concluded that two intergovernmental

agreements between multiple cities and public agencies pro-

hibiting the urban development of a geographic area had

4

Although LUBA’s opinions are not binding on this court, they are relevant

for persuasive value. Friends of Yamhill County v. Board of Commissioners, 351

Or 219, 251-52, 264 P3d 1265 (2011) (so noting); Manchester Solar v. Yamhill

County, 328 Or App 554, 559, 538 P3d 223 (2023) (same).

740 Neice v. Prosper Portland

significant impacts on land use because the decision not

to build on the land would have cascading effects on land

use, such as the availability of housing that local govern-

ments are required to plan for pursuant to the statewide

planning goals. Resolution 7512 may be a decision not to

change an existing situation, but unlike the intergovern-

mental agreements in Marks, Resolution 7512 does not pro-

hibit the development of the surrounding neighborhood or

area, nor does it purport to either approve or deny land uses.

Accordingly, LUBA did not err in rejecting petitioners’ argu-

ment grounded in Marks.

For all those reasons, LUBA’s final order dismissing

petitioners’ challenge to Resolution 7512 is not unlawful in

substance.

Affirmed.