City files motion to dismiss River View land use case

Riding and working at Riverview property-3

Photo taken in August 2012,
before biking was illegal.
(Photo J. Maus/BikePortland)

The City of Portland says the State Land Use Board of Appeals has no jurisdiction over its decision to prohibit bicycling on trails at River View Natural Area.

In a “motion to dismiss” filed on April 13th (which we obtained through a public records request, PDF here), Chief Deputy City Attorney Kathryn Beaumont argues that Commissioners Amanda Fritz and Nick Fish acted within their “managerial discretion” when they informed the community via a letter on March 2nd that bicycling would no longer be allowed on the 146 acre parcel.

The decision shocked riders and biking advocates. People have been riding the trails at River View for decades. And, following its purchase by the City of Portland in 2011, advocates were working in partnership with the Portland Parks & Recreation and Environmental Services bureaus on a management and trails plan under the assumption that bicycle trails would be allowed. The Northwest Trail Alliance, a Portland-based non-profit that builds, maintains and promotes off-road bike trails, responded by filing a Notice of Intent to Appeal with the State Land Use Board of Appeals on March 23rd.

“Pursuant to Metro’s conservation easement, the City retains the right to regulate use of the property consistent with its intent to operate the RVNA as “an open space, natural area.”

But Beaumont says the Trail Alliance is barking up the wrong tree. In the motion to dismiss she writes, “It is neither a land use decision nor a final determination of any kind. Whether it is reviewable in any forum is questionable. If it is, that forum is not LUBA.”

Commissioners Fritz and Fish first said they made the decision due to “an abundance of caution and to protect the City’s investment,” in the natural area. That vague rationale was then followed by a more clear insistence that the bicycle ban was necessary due to an old lawsuit about whether the parcel was purchased as a watershed or recreational asset. Now, as explained in the motion to dismiss, the City says the decision was made because of an existing conservation easement owned by Metro.

Metro paid $2.25 million of the $11.25 total purchase price in order to hold a conservation easement over the property. That easement is a contractual agreement that requires the land to “be retained forever predominantly in its natural condition” and to make sure that no activities on the land interfere with its “conservation values.” It also lists several potential uses of the property that are compatible with the agreement.

Here’s how the City refers to the Metro easement in their filing with LUBA:

Among the activities allowed under the conservation easement are “public access for nature based recreation, such as hiking or nature watching, environmental education and research.” Pursuant to Metro’s conservation easement, the City retains the right to regulate use of the property consistent with its intent to operate the RVNA as “an open space, natural area.”

While Metro’s conservation easement does not mention cycling specifically as an approved use, it also does not say cycling is incompatible.

According to a source at Metro (who didn’t want to go on record), nothing in the easement prohibits cycling. They’ve left the language purposely vague so that local managers of the property can make their own decisions about access. “As long as it upholds the spirit of the easement we don’t step in,” our source said.

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Metro has a representative on the River View Technical Advisory Committee — the same committee that agreed to allow bicycle access back in June 2014.

Back to the City’s motion to dismiss. Here’s how the City attorneys further explain the bicycling ban:

PPR and BES became aware that mountain bikers were using RVNA for off-road mountain biking both before and after the City purchased the property. As is often the case, BES and PPR were faced with several competing priorities: to maintain RVNA’s water quality and ecological functions, to complete long-term planning for the RVNA, and to address the mountain biking community’s desire for places to engage in nature-based mountain biking… Fish and Fritz concluded the best way to fairly balance these priorities is to halt mountain biking activity until the natural area management plan is completed and a citywide off-road cycling plan is funded and developed.

The City’s argument rests on two key points: First, that it’s not a land use decision and therefore not LUBA’s jurisdiction; and second, that the decision is not final (LUBA will only consider cases where the decision is final).

Here’s their argument about how it’s not a land use decision:

“Neither the City’s comprehensive plan nor the zoning code regulate the subject of the March 2nd letter: who may use city-owned property and for what purpose. As a result, there is no applicable comprehensive plan or zoning code provision Commissioners Fish and Fritz are legally required to apply or failed to apply in deciding whether mountain biking may or may not occur in the RVNA… The letter simply informs stakeholders the commissioners are exercising their managerial discretion to halt one activity — mountain biking — in the RVNA for now.”

According to 1000 Friends of Oregon’s Citizen’s Guide LUBA, there are some cases where the board will consider decisions that aren’t clearly defined as land use decisions:

An action by a local government that does not fit the statutory definition of a land use decision would still be appealable to LUBA if it would “create an actual, qualitatively or quantitatively significant impact on present or future land uses.”

NW Trail Alliance’s attorney Aaron Berne (a graduate of Lewis & Clark College who used to ride the River View trails on a daily basis) said the law is written in a way to give LUBA some leeway. “They are leaving an opportunity for a case to be heard if it is was in some sort of circumstance they haven’t thought of yet… they also think it would be crazy not to hear this case just because it doesn’t fit statutory definition.”

To the finality question, as we reported last month, the March 2nd memo from Commissioners Fritz and Fish could reasonably be construed as a final decision. “Mountain biking will no longer be an allowed use at RVNA as of March 16th,” they wrote.

It was only in a follow-up posted online when Fritz (perhaps thinking ahead to a potential LUBA appeal?) wrote, “We are not saying River View will never be used for mountain biking, rather just not now, before the citywide assessment of appropriate places for cycling is funded and completed.” (That follow-up was important enough for the City’s attorney to call it out in the motion to dismiss.)

Berne says he expected the City to try and get the case dismissed. He’s still working on his counter-argument but said he still believes the case meets the merits of a land use decision and that LUBA is the proper forum to appeal the decision.

In addition to the motion to dismiss, the City has simultaneously filed a motion to extend the time they’re given to file a record of information about how they reached their decision (a procedural requirement for all LUBA cases). That timeline has been suspended pending the outcome of the City’s motion to dismiss.

Berne says the NW Trail Alliance will file their response by the end of this month.

Stay tuned.

— In other River View news… The minutes from the April 8th Project Advisory Committee meeting have not yet been published. An open house event will be held on Monday, May 4th from 5:30 pm – 7:30 pm at the Multnomah Arts Center (7688 SW Capitol Highway). Read more of our coverage here.

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invisiblebikes
invisiblebikes
7 years ago

We need to start a petition to Ban Fish & Fritz and remove them from office! #banfish&fritz

Now is the time to make a statement as a community that we will not stand for this, our elected officials are Not doing what is in our best interests as constituents are using out dated rhetoric to oppress cyclist in this city.

Adam H.
Adam H.
7 years ago
Reply to  invisiblebikes

Amanda Fritz seems to oppose nearly everything that’s good for the city: increased building heights, allowing ride-hailing services to operate, bike share downtown, etc. She is bad for Portland and needs to go.

Adam H.
Adam H.
7 years ago
Reply to  Reza

People are allowed to change their minds when presented with new evidence. It’s called deductive reasoning.

davemess
davemess
7 years ago
Reply to  Adam H.

In two months though? She’s been doing stuff like this for years.

Adam H.
Adam H.
7 years ago
Reply to  davemess

Clearly I was either misinformed before or didn’t have enough data.

jeg
jeg
7 years ago
Reply to  Adam H.

I agree. She is the equivalent of a liberal in San Francisco decrying the rents and saying the solution is to not build anything because “ambiance.”

Unless she starts speaking up with tones that are actually logical as opposed to supporting NIMBYs and uniformed ninnies, she definitely needs to go. BUT WHO IS HER OPPONENT THAT IS BETTER AS A REPLACEMENT?

Lester Burnham
Lester Burnham
7 years ago
Reply to  jeg

Ha and in Portland that is always the problem.

jeg
jeg
7 years ago
Reply to  Lester Burnham

Always? Nah. Lately? Something’s rotten, definitely. But we have had good leaders in the past.

Kyle
Kyle
7 years ago

Even if the city has legitimate reasons (due to lawsuits, Metro, etc…) for banning bikes, there’s a disgusting and shocking lack of transparency here. It really removes my faith in the people this city elected.

Rick
Rick
7 years ago

Outrageous.

Why let dog poop litter many public lands?

jeg
jeg
7 years ago

“Fish and Fritz concluded the best way to fairly balance these priorities is to halt mountain biking activity until the natural area management plan is completed and a citywide off-road cycling plan is funded and developed.”

Keep applying pressure and you’ll probably get what you want; act like these representatives deserve no respect from the biking community and you will probably fail.

You have them on the defensive; now be smart about it and less shrill. Continued pressure to provide proof of the citywide off-road plan is needed. With concrete projects.

This isn’t a loss.

jeg
jeg
7 years ago
Reply to  jeg

I say this because I really believe their endgame is to kill some of Portland’s cachet and bring it down a few notches. If the activists on the mountain biking side play this wrong, the politicians may win by pointing out the “tactics” of “social justice warriors.”

This is a lurch to the right in our politics, and the pressure needs to be applied intelligently or the greater powers may just cause us to lose everything. They’re acting this way.

Amy
Amy
7 years ago
Reply to  jeg

But jeg, surely you realize as mtn bikers, we have nothing to lose. I’ve been playing the advocacy game for 10 years; I know others that have been working it for 20. We aren’t getting Duthie after 10 years; we are gettibg nothing. What, we lose a half mile of trail in forest park?

bjcefola
bjcefola
7 years ago
Reply to  jeg

Any thoughts on what pushed Portland to the right?

Mike
Mike
7 years ago

One more incident proving that Portland does NOT deserve to be a Platinum city. Commissioners can act without any oversight and with total impunity. We are stuck with them for another couple years, during which they can make decisions to seriously hamstring any future MTB projects within Portland.

“Oh, you want more transparency to our decision making process? DENIED!”

Daily MTB critical mass around city hall and through the neioghborhoods of the commissioners. After all, if they don’t want us riding in the park, we are only left with riding our big and very slow bikes on the streets (riding on the sidewalks is illegal downtown, right?).

jeg
jeg
7 years ago
Reply to  Mike

Their oversight was our vote for them. We can vote them out. Where are our community leaders with vision and the ability to express transparent visions, though? Where?

Mike
Mike
7 years ago
Reply to  jeg

So their oversight happens once every 4 years? Seems like a piss poor system of checks and balances….

jeg
jeg
7 years ago
Reply to  Mike

They’re certainly backpedaling due to activism, the problem will be in too much civil disobedience. They may then double down on no mountain biking at all. You have to think of these egotists imagining the electorate like children and they are parents; that’s the type of people these politicians are. I know it may seem demeaning, but their current backpedaling must be taken as an olive branch to stop the outbursts and sit at a table to talk with FRITZ and NOVICK.

With the current attention being garnered, the ball is in our court to play well. Otherwise, the community could end up smeared and local opinion may shift even more anti-bike.

Need I remind you, there is a loud vocal minority in this city that HATE bikes. So I think it would be foolish to play hard and fast when this is a complicated political situation.

I want bike infrastructure as much as anyone. I want mountain bikers to have designated trails to use with some measure of volunteer assistance to keep trails at a level deemed appropriate by ecological scientists. If it falls into disrepair, ban it again until they can behave. There’s two sides here, and even if you think their side is invalid, many bumpkins may not.

jeg
jeg
7 years ago
Reply to  jeg

*FISH not novick, sorry.

invisiblebikes
invisiblebikes
7 years ago
Reply to  jeg

I look at it the other way around, the Politicians are “children” and we are the “Parents” and they need to be punished for very bad behavior and not listening.

jeg
jeg
7 years ago
Reply to  invisiblebikes

Sure! I was just stating that in their minds it’s the reverse. At least from how they’re acting.

Mike
Mike
7 years ago
Reply to  jeg

“They may then double down on no mountain biking at all.”

As if they haven’t already begun? You mean they could outlaw Lief Erikson (NOT mountain biking) or Powell Butte? They have already removed or prohibited mountain biking everywhere else.

I want hikers to have designated trails to use with some measure of volunteer assistance to keep trails at a level deemed appropriate by ecological scientists. If it falls into disrepair, ban it again until they can behave. There’s two sides here, and even if you think their side is invalid, many cyclists may not.

jeg
jeg
7 years ago
Reply to  Mike

Volunteers maintain much of our trail system in our parks, FYI.

Mike
Mike
7 years ago
Reply to  jeg

And the same could be said for Riverview BEFORE they shut it down.
What, volunteer hours only count for hikers and not for mountain bikers?

Kyle
Kyle
7 years ago
Reply to  Mike

Actually, I’d definitely participate in some rides down main arterials in Portland to protest poor bike infrastructure. Say… hundreds of cyclists taking the lane down Burnside on the east side all the way to Old Town. Or perhaps on Naito?

naess
naess
7 years ago
Reply to  Kyle

i seem to remember this happening at least once a month at one time…

spencer
spencer
7 years ago

Hey Portland. My tires touched dirt this morning. No baby birds, salmon, or whales were harmed, no excessive erosion occurred, and no one was run over. All hikers, kids, puppies, salmon, and flora were left intact and unmolested. All interactions with trail users were polite, friendly, and tactful. Lets “share” our trails.

GlowBoy
GlowBoy
7 years ago
Reply to  spencer

After a week in Portland (including some very enjoyable paved rides) I’m looking forward to being back in Minneapolis tomorrow, where I can go mountain biking near my own house and ride to the trails without a car.

The absurdity of what has happened here in Portland just boggles the mind.

Champs
Champs
7 years ago

Motion for dismissal, motion for summary judgment, hearings… just the usual legal back and forth until they reach a deal or go to trial.

TrailLover
TrailLover
7 years ago

There are lot’s of examples of “open space, natural area” lands all over the country that allow and encourage cycling. If Fritz and Fish are afraid that allowing bicycles at River View will upset Metro or a judge, then instead of spending their (our) time screwing the cyclists, maybe Fritz and Fish should spend their (our) time helping to educate Metro or a judge or the public in general regarding modern land management practices. Alas, that would require leadership, some interest in serving the community and some expertise on the part of the commissioners.

Glenn
Glenn
7 years ago

This bit of legal genius is costing you $115K/yr, folks. http://tinyurl.com/n98yprh

A month after the decision I’m really loving the “abundance of caution” bit. Up and changing the rules on something you’ve owned for about 5 minutes that was steady-state for years before you came along, is called an “abundance of caution?” Making huge political missteps that alienate constituents and paint you as a petty dictator (and now a spoiled sport) is called an “abundance of caution?”

When you’re a newcomer to a place, the abundantly cautious route is to observe and… keep quiet (exerting some effort there to say it politely).

As if now were the time for caution anyway. Even if bikes were the most apocalyptically destructive force ever to be unleashed on the helpless forest (but no, that honor goes to city road-building), they would have already destroyed it years ago. Oh but now the city owns it, so somehow the “nature” of this “area” is different now? I dunno, maybe next they should ban miniskirts (around since the 60s). Yeah they’ve been around since the 60s and don’t seem to have destroyed society, but we’re just being cautious. Abundantly so.

jeg
jeg
7 years ago
Reply to  Glenn

You’re ignoring the nuance of rehabilitation of habitats, which is actually a valid concern in the grand scheme.

Glenn
Glenn
7 years ago
Reply to  jeg

Yes I am ignoring that. Habitats will rehabilitate themselves once the human population crashes, don’t worry. The best habitat used to be down by the river where all the pavement and commercial activity currently is. In the “grand scheme” it’s all a “natural area.” Rehabilitate that, and you’ve got something. But no, suddenly you’re butting up against a large number of well-funded and highly vested people, who use that area daily. So we’ll pick on this smaller, weaker, poorer, way less-impactive group instead. The American way!

jeg
jeg
7 years ago
Reply to  Glenn

“Habitats will rehabilitate themselves once the human population crashes, don’t worry.”

Yeah, no. I don’t believe in the libertarian ideology of detaching human actions from ecological effects that need ACTIVE rehabilitation. That is patently absurd and makes me not want to support your cause.

Glenn
Glenn
7 years ago
Reply to  jeg

That’s nice and all about libertarians and such, but anyway, back to THIS TOPIC. You seem confused; did you read past the first sentence? I just now suggested actively rehabilitating the whole waterfront from the human-imposed effects there. You’ve also made a second faulty assumption, about what my “cause” is. Assuming I even cared about your support, what would you offer? Like maybe my campaign needs an Executive Chairman of Recklessly Labeling People and Getting it Wrong?

jeg
jeg
7 years ago
Reply to  Glenn

Your cause being mountain biking. If you’re not in support of it, whatever. But, again, I think reckless activism is going to ruin the cause.

Mike
Mike
7 years ago
Reply to  jeg

What?! Mountain bikers have been using this land for decades and have not destroyed the area. Why is it only now, after decades of use and hundreds, if not thousands, of volunteer hours, that these two yahoos are worried about the “nuance of rehabilitation of habitats”?

Perhaps they should close ALL of Forest Park to ALL users out of an “abundance of caution”, at least until the hikers /runners/walkers can demonstrate that they can use the park without permanently destroying it.

Do you see the catch-22 there?
You are not allowed to use this area until you can demonstrate that you can use it properly. Oh, and the past 20+ years of proper use don’t count.

Skid
Skid
7 years ago

Let the poaching begin.

Psyfalcon
Psyfalcon
7 years ago

Why does their excuse change every time they have to release new information?

Now its an easement and not the lawsuit.

davemess
davemess
7 years ago
Reply to  Psyfalcon

An easement that they would have known about for the last 3 years? So why string cyclists on.
Just smells fishy………

RWM
RWM
7 years ago

This is a predictable response, and I’d be surprised if LUBA does anything but dismiss the appeal. Taking this to LUBA seemed like a square peg through a round hole from the beginning. This response isn’t the big, bad city putting the hurt down on MTB-ing yet again. It is simply a (correct, IMO) response to the legal challenge that NWTA put forth.

IF I lived in Portland and cared more, I’d inquire with the City Auditor about filing a petition for repeal or amendment of a parks rule, per Portland City Code Chapter 20.04.040. Maybe there’s some other factor that would prevent this route – who knows. If it is possible though, a City Council hearing on the ban would provide a lot more bang for the buck than having land use attorneys parse statues and regulations at LUBA. And haven’t PBOT officials lately been asking for a lot of people to turn up at City Hall to support biking?

J_R
J_R
7 years ago

I’m not a mountain biker, but this is p***es me off. I guess it’s to be expected that Portland would seek to use legal muscle to fight a legal action.

What really dismays me is that biking enthusiasts were welcomed into the process but are cut out after participating.

If the habitat is so damn critical why don’t they have the guts to declare it all off limits like the Bull Run watershed. No, it’s divide and conquer.

I’m ready to vote the scoundrels out – all of them.

jeg
jeg
7 years ago
Reply to  J_R

“Portland would seek to use legal muscle to fight a legal action.”

Actually, I think the activists are the ones that went through LUBA; they forced the legal action. As another commenter said, “If it is possible though, a City Council hearing on the ban would provide a lot more bang for the buck than having land use attorneys parse statues and regulations at LUBA. And haven’t PBOT officials lately been asking for a lot of people to turn up at City Hall to support biking?”

bb
bb
7 years ago

Thanks for continually covering this important issue and not letting it get burried, Jonathan and BP.

davemess
davemess
7 years ago

The Portland Tribune did a nice cover article about River View last week http://portlandtribune.com/pt/9-news/257055-126740-whose-park-it-is-anyway

THAT kind of lead picture is the EXACT type of image we need to keep using for these kinds of stories.

Dan
Dan
7 years ago
Reply to  davemess

Special thanks to MNBikeLuv and Jonathan Maus for helping with LOTS of background for the story. If anything is out of order there, you can blame me.

There will be a story on Cedar Knoll out soon.

davemess
davemess
7 years ago
Reply to  Dan

Could have done without the Blaise parts, esp. considering his tax subsidies and empty threats of “selling his land for $1M”.

Dan
Dan
7 years ago
Reply to  davemess

Well, it’s not meant as propaganda, it’s meant as a news story that allows both sides to speak. Perhaps he’s not the best spokesman for the other side.

2nd part of the two-part story is up: http://www.pamplinmedia.com/pt/9-news/257447-127715-cyclist-recalls-crash-that-sparked-movement

Skid
Skid
7 years ago

I just wish people would either stop putting dog poop in bags if they are going to leave it trailside, or take it with them.

Psyfalcon
Psyfalcon
7 years ago
Reply to  Skid

Do they think someone comes and gets it?

I feel like this has become much more common in the last year.

davemess
davemess
7 years ago
Reply to  Psyfalcon

I think some people do just forget it (accidentally). But surely there are some rude folks who are just selfish.

Dan
Dan
7 years ago
Reply to  Skid

Someone left a bag of dog poop in the middle of the Hwy 26 MUP on Monday. It was there on my morning ride in, and still there on my evening ride out. Classy.

Brian bieger
Brian bieger
7 years ago

The truly upsetting thing about this whole debacle as these decisions were made out of hand with ABSOLUTELY NO review about scientific literature about the detrimental effects of mountain biking on the ecology of the surrounding environment. Those studies exist and they dound, through peer reviewed scientific method, that properly established trails do NOT adversely affect water quality, wildlife, or vegetation any more than the other “approved” uses do.

It is outrageous to me that elected officials just make decisions like this based simply on what they thiNk

Opus the Poet
7 years ago

Stuff like this happens and my conspiracy senses start tingling. Someone got told to do this, because this response from cyclists could have been predicted a mile away. Now the only question is was it Fritz or Fish, and what kind of hold does whoever have over them. Are family members missing, or is it something financial?

The reversal was just too sudden for this to have been thought up by either of the “F-Bombs”. I mean when even the Boringonian comes out against you…