Posted by Jonathan Maus (Publisher/Editor) on June 11th, 2015 at 11:14 am
Natural Area sparked large protests.
(Photo J. Maus/BikePortland)
The Oregon Land Use Board of Appeals has dismissed a case that sought to reverse a decision to prohibit bicycling at River View Natural Area.
In their 12-page decision published on June 3rd (PDF here, scroll down for embed) LUBA explains that the case does not fit within the bounds of their jurisdiction because the City of Portland’s actions did not constitute a land use decision. LUBA said that local governments, acting in their capacity as “custodian and manager of public lands,” are withing their legal right to make decisions that restrict public access.
Here’s a snip from the decision:
“For example, a city parks bureau may decide to close trails within a public park to dog-walkers, in order to avoid conflict with other users, to prevent harm to wildlife, or for many other reasons that have little or nothing to do with land use planning or regulation, and which may not be governed by any standards at all.”
The legal action came on the heels of a decision made on March 2nd by by Parks Commissioner Amanda Fritz and Bureau of Environmental Services Commissioner Nick Fish. After a long and collaborative process to determine the future of trail uses at River View, NWTA reps were summoned to a meeting and told — without warning or detailed explanation — that biking would be banned until further notice.
NWTA Board President Kelsey Cardwell said at the time of the LUBA filing, “We would much rather continue in that partnership to resolve this issue. However, the gravity of this decision, the lack of justification, and the lack of answers has led the board to believe that the next right step is to take legal action.”
“We agree with the city the March 2, 2015 letter does not appear to concern the application or amendment of any statewide planning goal, comprehensive plan provision or land use regulation, and for that reason does not constitute a ‘land use decision’.”
— Oregon Land Use Board of Appeals
A key argument that the Trail Alliance’s case stood upon was a disagreement over whether the March 2nd memo about the bike ban issued by the City constituted a final decision (versus a temporary one), which is one of the thresholds a case must meet to be considered by LUBA.
The Trail Alliance argued that the ban on biking at River View is a de facto final decision, “because it purports to permanently close existing trails that were previously open to mountain bikes*, and permanently exclude mountain biking from consideration as a potential use within the RVNA in the current land use management planning process.”
(*There is some debate over the idea that the trails were “previously open to mountain bikes.” For decades prior to the city’s purchase of the 146-acre parcel in 2011, people rode bikes on the trails. However, the previous landowner says they were trespassing. Then, after the city purchased the land, biking was allowed.)
The City made it known publicly via a statement on their website and after the publication of their initial memo, that the decision wasn’t meant to be final. They have maintained all along that biking is prohibited only while, “a citywide assessment of appropriate places for cycling is funded and completed.” (Since then, the Off-Road Cycling Master Plan has been funded and work to complete it is underway.)
After looking at both sides, LUBA agreed with the Trail Alliance that the City has not proven that the decision was only temporary. “However,” they wrote in their decision, “we agree with the city the March 2, 2015 letter does not appear to concern the application or amendment of any statewide planning goal, comprehensive plan provision or land use regulation, and for that reason does not constitute a ‘land use decision’.”
The Trail Alliance has chosen to not appeal this case any further.
Aaron Berne, the lawyer who represented the Trail Alliance on the case, told the Willamette Week newspaper, “We’re optimistic that they’ll reconsider their decision to ban mountain bikes. Mountain biking was the longest-standing and most popular use at River View.”