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.
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.
— 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.