Harvest Century September 22nd

Challenge to River View biking ban dismissed by State Land Use Board

Posted by on June 11th, 2015 at 11:14 am

River View Protest Ride-25

A decision to prohibit biking at River View
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.

The case was filed back in March by the Portland-based non-profit Northwest Trail Alliance.

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.

Advertisement

Big sale at Community Cycling Center

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.”

NOTE: We love your comments and work hard to ensure they are productive, considerate, and welcoming of all perspectives. Disagreements are encouraged, but only if done with tact and respect. If you see a mean or inappropriate comment, please contact us and we'll take a look at it right away. Also, if you comment frequently, please consider holding your thoughts so that others can step forward. Thank you — Jonathan

45 Comments
  • Avatar
    rick June 11, 2015 at 11:19 am

    33 dog parks in Portland yet where are the mountain bike trails?

    Recommended Thumb up 0

    • Avatar
      Bjorn June 11, 2015 at 11:28 am

      Not to mention that while I hear a lot about how awful it is when a cyclist poaches a trail I doubt there is a park in the city that doesn’t see unleashed dogs in violation of the rules on a daily basis.

      Recommended Thumb up 0

      • Avatar
        Justin Carinci June 11, 2015 at 11:38 am

        Amen. I could stand to see a crackdown on unleashed dogs. Not that that has anything to do with this, but it’s a pet peeve of mine.

        Recommended Thumb up 0

  • Avatar
    Burkaroo Bonsai June 11, 2015 at 11:27 am

    But there aren’t any places around Portland to ride your Mountain Bike! This is so unfair! Wahhhhhh!

    Recommended Thumb up 0

    • Avatar
      Alex June 11, 2015 at 12:19 pm

      I agree, it is unfair, but I don’t know why you are crying about it. I would prefer to handle it in a sane way that addresses the root of the problem and shine some light on ways to positively move forward with solutions.

      Recommended Thumb up 0

    • Avatar
      Chris I June 11, 2015 at 12:23 pm

      I’m glad you took the time to comment on an issue that you apparently don’t really care about. Thank you.

      Recommended Thumb up 0

  • Avatar
    reader June 11, 2015 at 11:30 am

    Punt!

    Recommended Thumb up 0

  • Avatar
    Lester Burnham June 11, 2015 at 11:52 am

    Platinum!

    Recommended Thumb up 0

  • Avatar
    Alex June 11, 2015 at 12:02 pm

    “(*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.)”

    For that matter, hiking was illegal there, too, and in no way a justification to ban mountain biking now.

    Recommended Thumb up 0

    • Avatar
      Eric June 11, 2015 at 11:39 pm

      I think unicycling was never disallowed.

      Recommended Thumb up 0

    • Avatar
      matt picio June 16, 2015 at 4:00 pm

      The issue isn’t whether or not they were trespassing – clearly they were. There are two issues:

      1. Did the landowner close the land as per state law? (http://www.oregonlaws.org/ors/105.700)

      2. Were they ILLEGALLY trespassing? Yes, there is such a thing as legal trespass. For instance, if the landowner does not take steps to close the land per ORS105.700.

      Oregon law limits liability against private landowners who allow (or fail to restrict) the public to use their private land recreationally.

      Please note: I am not a lawyer, and this should not be construed as legal advice. Oregon provides for both criminal and civil trespass penalties, so it’s recommended people make their own decisions and consult counsel as they deem wise.

      Recommended Thumb up 0

      • Avatar
        Alex June 17, 2015 at 8:10 am

        You completely missed the point I was making and seem to be ignoring the state of things surrounding this issue.

        Recommended Thumb up 0

  • Avatar
    spencer June 11, 2015 at 12:04 pm

    The community needs to keep riding these trails, keep being polite, keep sharing graciously, keep a presence there, to prevent the “Friends of River View” from establishing this dangerous and exclusionary precedent. I’ve never booby trapped trails, but we’ve seen just that happen on the property.

    Recommended Thumb up 0

  • Avatar
    Adam H. June 11, 2015 at 12:12 pm

    DOWNGRADE PORTLAND

    Recommended Thumb up 0

    • Avatar
      joebobpdx June 11, 2015 at 6:51 pm

      Help me understand how changing some arbitrary ranking of Portland’s cycling mojo would help cyclists or harm the parties seen to responsible for this decisions (ie City Council or the BES/Audubon entente)?

      Recommended Thumb up 0

  • Tony T
    Tony T June 11, 2015 at 12:19 pm

    I wonder if there’s any grounds for claiming easement by prescription.

    If we were permitted to use it and then summarily banned . . .

    http://realestate.findlaw.com/land-use-laws/prescriptive-easements.html

    Recommended Thumb up 0

    • Avatar
      Spiffy June 11, 2015 at 3:36 pm

      it looks like “merely walking or hunting on land does not establish actual possession” so biking on it wouldn’t qualify…

      Recommended Thumb up 0

    • Avatar
      Spiffy June 11, 2015 at 3:38 pm

      http://www.oregonlaws.org/ors/105.620

      looks like it doesn’t qualify… you basically have to live there and think that it’s yours…

      Recommended Thumb up 0

  • Avatar
    Caesar June 11, 2015 at 12:41 pm

    Forgiveness Is
    More Easily Obtained
    Than Permission.

    Just sayin’…

    Recommended Thumb up 0

  • Avatar
    Brian June 11, 2015 at 12:45 pm

    Thanks to NWTA for taking this seriously and holding our elected officials accountable. They may not have won this appeal, but they definitely gave the city something to think about. Well done!

    Recommended Thumb up 0

    • Avatar
      JRB June 11, 2015 at 2:56 pm

      They didn’t win or lose the appeal. LUBA decided it didn’t have jurisdiction and so never got to the merits of the city’s decision. I imagine NWTA will keeping seeking a reversal through whatever means are available to it.

      Recommended Thumb up 0

  • Avatar
    ethan June 11, 2015 at 1:19 pm

    Like most things bike-related in Portland, it is dismissed, or pushed aside.

    Recommended Thumb up 0

  • Avatar
    MNBikeLuv June 11, 2015 at 1:35 pm

    When I read the text of this decision I was struck by two things:

    1) While they (LUBA) said it wasn’t their baby, the questioned if the city’s argument that the ban was “temporary” was actually temporary.

    2) While it gets the city off the hook for this, it might actually open up more answers as to what happened here. When I’ve talked to people in Portland, they had said the city was holding back emails and other requested information regarding River View due to this litigation. If I was a few hundred miles closer, I could not get down to the City offices fast enough with requests for email and internal memos. Bet those would make for some interesting reading…

    Also, if you want to get hoppin’ mad, do a City of Portland search for Macadams PUD, case # LU 14-235643 LDS ENM AD. Less than 5000′ from the center of RVNA and the proposal is a 47% greenspace/habitat loss in a currently forested area. You’re a developer in Portland and you want to clearcut 47% of the forested land on your property, oh by all means do. You’re a mountain biker and want to put some trails in a park, oh no, its ‘abundance of caution’.

    Recommended Thumb up 0

    • Avatar
      z07 June 11, 2015 at 4:12 pm

      You don’t have to visit City Hall to make a public records request. There are forms for it. Hint: be as specific as possible in what you’re asking for, e.g. date ranges; email correspondence of Commissioner X and Y etc. And there may be costs associated with the reply.

      http://www.portlandonline.com/auditor/index.cfm?c=35190&a=185815

      Recommended Thumb up 0

  • Avatar
    snowden June 11, 2015 at 1:44 pm

    With regard to historic bike use on the property – regardless of the legal status when the parcel was owned by the cemetery, bikes were an allowed use once the City bought the property, a period of 2 or more years. so bike use was established.

    Even with the outcome of this case, it has definitely exposed what has been a terribly unfair process. Parks, BES, and Metro all recognize that. It’s part of the reason this issue has gotten the mayor’s attention, and helped get approval for the master plan funding. So, in the end, there may be something positive that comes from this.

    At a minimum, the city should suspend the Riverview process until it can be re-booted in a fair and open manner. Best case would be to reverse the ban altogether, since there was no solid justification for it in the first place.

    Recommended Thumb up 0

  • Avatar
    wsbob June 11, 2015 at 9:08 pm

    “…NWTA reps were summoned to a meeting and told — without warning or detailed explanation — that biking would be banned until further notice. …” maus/bikeportland

    Did either Commissioners Fish or Fritz, or the city, ever use the word ‘banned’ to describe clarification of the city’s policy regarding use of the Riverview land for mountain biking? If so, post a quote.

    Jonathan, I don’t recall your having posted such a quote in past. It seems then, that you’re choosing to use that word to inflame controversy over the city’s ongoing decision process regarding what recreational activities will eventually be determined are appropriate for the Riverview land.

    It seems that basically, the city is stuck, as to how it legally can be allowed to use the land it acquired. Before acquisition, use of the land for mountain biking was illegal. Some people want to say that after acquisition, the city allowed the land to be used for mountain biking. Did the city ever, after acquisition, officially state: ‘Riverview is officially open to and allowed to be used for mountain biking.’ ?

    If it did, and on such a statement, allowed mountain biking on the land to continue, that may constitute an established use. By what’s been reported, it sounds as though the city never made any such statement. And even if it did, as LUBA notes in its remarks, the city could still curtail mountain biking any time it determined there was a need to do so.

    Recommended Thumb up 0

    • Avatar
      Brian June 12, 2015 at 8:49 am

      “Mountain biking will no longer be an allowed use at RVNA as of March 16th.” -Letter from Fritz and Fish

      ban (v) -officially or legally prohibit.

      Recommended Thumb up 0

      • Avatar
        Zimmerman June 12, 2015 at 2:19 pm

        wsbob: (v) to use fear, uncertainty and doubt in opposition to facts to disparage the mountain bike community in online forums.

        Use: Brother, don’t try & wsbob me about this issue. Mountain biking is a perfectly acceptable form of passive recreation in both Riverview and Forest Park.

        Recommended Thumb up 0

    • Avatar
      snowden June 12, 2015 at 2:56 pm

      wsbob
      “…NWTA reps were summoned to a meeting and told — without warning or detailed explanation — that biking would be banned until fur…

      Yes, bikes were specifically allowed after the property was purchased. Heck, PPR sponsored trail work parties in conjunction with NWTA to re-route unsustainable sections of trail. NWTA volunteers contributed over 400 hours of time towards these efforts. There is no question bikes were considered an allowed use until the ban. Yes, that’s what it is.

      You’re really scratching to bring some legitimacy to the City’s actions here. The reality is that the decision was made without a fair process, and at the behest of a small group of BES staffers who continue to demonstrate a bias against bikes. That may not be public knowledge at this point, but that’s what went down here.

      Recommended Thumb up 0

      • Avatar
        Alex June 12, 2015 at 3:33 pm

        He consistently “forgets” large parts of history when it doesn’t suit his needs. I don’t think his comment should have made it past the moderators for multiple reasons, but I digress.

        Recommended Thumb up 0

      • Avatar
        wsbob June 12, 2015 at 8:32 pm

        “…use until the ban. …” snowden

        There was no ‘ban’, and there is no ‘ban’ of mountain biking at Riverview. If there had been such a thing, Commissioner Fritz in her letter to the IMBA rep, would have used that word rather than ‘curtailment’.

        I believe bikeportland and various people, choose to use the word ‘ban’ for its connotation of condemnation, commonly known from such phrases as ‘ban the bomb’, or in reference to substances the FDA has taken off the market due to their being found unhealthy to the public.

        The city hasn’t made that determination with reference to mountain biking on the land at Riverview, or to people visiting that park. If it had good cause to do so, I have little doubt the city would have officially announced as much. It didn’t, so upon acquiring information from scientists it consulted, about mountain biking’s impact on the park’s ecosystem, the city concluded that a curtailment was in order.

        Fair enough, if as you say, for some time after acquisition, the city specifically (for the circumstance it seems you’re describing,I’d say ‘tacitly.’) allowed use of the Riverview land for mountain biking. Though that’s not what I asked in the comment you responded to. I asked “…Did the city ever, after acquisition, officially state: ‘Riverview is officially open to and allowed to be used for mountain biking.’ ? See if the city made any such statement.

        I think you and other people that think similarly, are wrong in concluding what you have about the BES’s involvement the decision to curtail mountain biking at Riverview, and as to their reasoning for having dones so. It seems that the city conducted the public process as long as it could, until it discovered unforeseen considerations it had to resolve administratively rather than through the public process that had been set in motion, and which had proceeded for some time.

        Were there mistakes made by city officials and city personnel associated with the purchase of Riverview? Could be. Ideally, the legal details with regard to allowed use of the land, should have been worked out before the public planning process started; maybe even before the land was purchased. Everybody then, could have known exactly where they stood in terms of what activity the city was going to be able to allow them to pursue on the land. Didn’t work out that way.

        Recommended Thumb up 0

      • Avatar
        wsbob June 12, 2015 at 8:55 pm

        Pt 2: So what’s next?

        The smart thing for mountain bike enthusiasts to do, would be for starts, to recognize the conditions under which the city is bound by the acquisition agreement, to limit use of the land. That is, once the city clearly understands what those limitations are, and is prepared to officially offer that info to the public.

        Next thing would be to design mountain bike track from which the land’s ecosystem could be protected. You said something about the NWTA helping to reroute unsustainable sections of the trail…whatever it is that exactly means…but apparently it wasn’t enough to have mountain bike track be compatible with the limitations on use of the land the city came to believe it’s bound to.

        Find out exactly what kind of mountain bike infrastructure the city would need on the Riverview land in order for mountain biking to be an allowed use. And some idea of what it cost to build it. Stop being mean, rude and obnoxious in regards to them, and they may start talking to mountain bike enthusiasts again, about what the prospects for mountain biking at that park could be.

        Recommended Thumb up 0

        • Avatar
          Zimmerman June 13, 2015 at 8:14 am

          When presented with a definition that blows your entire premise out of the water, respond with the same discredited premise but make it 6 times longer.

          It’s a little like the American way of speaking to foreigners. If they don’t understand your language, just speak LOUDER.

          Recommended Thumb up 0

          • Avatar
            Bill Walters June 13, 2015 at 8:53 am

            And don’t forget the relentless paternalism.

            Recommended Thumb up 0

            • Avatar
              Alex June 15, 2015 at 8:27 am

              I really do wish we could have a clear sense of what gets modded out and why. wsbob’s comments really degrade the discussion here and, like myself and others have noted, it is a form of denial of service attack. I have really tried to engage minimally, but I also don’t want people to think what he says is true (because, usually it isn’t). I don’t want someone cut off from having a voice, but when it is simple repetition and the spread of FUD, it isn’t really a voice that is dedicated to a rational discussion – it is a concerted effort to undermine a community.

              Recommended Thumb up 0

              • Avatar
                Jonathan Maus (Publisher/Editor) June 15, 2015 at 8:59 am

                Thanks for this feedback Alex. Moderating wsbob is challenging. I will take a closer look and take some actions when and where I can.

                wsbob, if you are reading this, please consider how your style of commenting is disliked by many readers and adjust accordingly if possible. Thanks.

                Recommended Thumb up 0

        • Avatar
          MNBikeLuv June 13, 2015 at 8:56 pm

          Answers to your points:

          1) The city had signs up displaying biking as an allowed use. You can see a picture of them on the “Friends” of River View’s site. (They lurk on these comments; I know this because they recently added a defense of the Berkeley Slasher on the site after we had a previous conversation regarding him.)

          2) If the City found out an issue regarding that site that was legitimate, they (should have) brought it to the PAC. Then it would have been part of the public process. Solutions could have been found within the public process. Many people believe they didn’t do that because the reason has nothing to do with any of the reasons they have given.

          3) The city has banned biking at RVNA. Not allowing is the same as banning. If fact, they have banned even talking about it. Go to NWTA’s YouTube channel and listen to the April PAC meeting audio. Its painful to hear city officials spout that much double speak. They wouldn’t answer questions about if biking could happen there citing the memo from Fish/Fritz, but then said if the process finishes without a biking recommendation, then it would take a new process to add it because it would not be recommended by the current PAC (which can not recommend it because its banned).

          4) There is no need for a “special” mountain bike trail design. The current guidelines, IMBA 2004/USFS 2007 would just fine for RVNA. Its true that NWTA needs to learn that for urban areas you build “East Coast” style, but that is about trail routing, not trail construction. This is a trail system in a small town in MN with similar area and as steep (if not steeper) slopes and similar area as RVNA and there is 9 miles of trails: http://www.mtbproject.com/trail/5843518/holzinger-lap

          5) I think many local MTBers in PDX would argue they have been nice for years, only to get shafted at every turn. Since they have “obnoxious” they have gotten more attention (and arguably more action) from the city. We will see if that holds.

          Recommended Thumb up 0

          • Avatar
            GlowBoy June 15, 2015 at 3:40 pm

            “I think many local MTBers in PDX would argue they have been nice for years, only to get shafted at every turn.”

            This. Also, this just drives home how glad I am that I moved to Minnesota where I can just go ride my mountain bike (two major trail systems and lots of “undeveloped” opportunities within a 30 minute bike ride of my home, plus 11 more systems within the metro area), instead of continually fighting a losing battle for the ability to do so. Kudos to those keeping up the good fight, though.

            Recommended Thumb up 0

    • Avatar
      My Magic Hat June 14, 2015 at 5:50 pm

      So much time spent crapping on an activity that has nothing to do with you. So much time wasted. You have more places to watch birds than Minnessota has lakes.

      Quit hogging all the dirt and let mountain bikes go SOMEWHERE.

      Give them what’s fair, or they’ll take what’s fair.

      Recommended Thumb up 0

  • Avatar
    Eric June 11, 2015 at 11:35 pm

    Fritz is cutting the ribbon on a new playground at Marshall Park this weekend. Maybe ride your mountain bike down Taylor’s Ferry and have some ice cream with her?

    https://nextdoor.com/events/or/portland/marshall-park-playground-dedication-326983

    Recommended Thumb up 0

  • Avatar
    Pdxtrailuver June 15, 2015 at 2:02 pm

    Too bad all this cost tax payers unnecessary monies. I support the sound decision to protect the environment as do many others in the cycling community.

    Recommended Thumb up 0

    • Avatar
      Zimmerman June 15, 2015 at 3:12 pm

      Protect the environment from what exactly?

      Recommended Thumb up 0

      • Avatar
        Pdxtrailuver June 15, 2015 at 4:22 pm

        Bikes, people, erosion, noise. This natural area IMO and many others should be set aside for conservation, not recreation. We can’t have everything. I’m good offering this chunk to our urban wildlife.

        Recommended Thumb up 0

        • Avatar
          Zimmerman June 15, 2015 at 6:13 pm

          People will be allowed, dogs will probably be allowed, and this “chunk” is in an urban area filled with noise. Are you thinking of another parcel of land somewhere near Portland?

          The only thing they’re limiting is another passive form of recreation that’s been happening there for 20 years already.

          Recommended Thumb up 0

  • Avatar