MAXWELL v. CITY OF HAPPY VALLEY, LUBA No. 2003-048 (Or. LUBA 4/24/2003), LUBA No. 2003-048.

• Decision Date: 24 April 2003
• Docket Number: LUBA No. 2003-048.
• Parties: GAIL A. MAXWELL, Petitioner, v. CITY OF HAPPY VALLEY, Respondent.
• Court: Oregon Land Use Board of Appeals

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GAIL A. MAXWELL, Petitioner, v. CITY OF HAPPY VALLEY, Respondent.

LUBA No. 2003-048.

Oregon Land Use Board of Appeals.

April 24, 2003.

Appeal from City of Happy Valley.

William C. Cox and Gary P. Shepherd, Portland, represented petitioner.

Paul C. Elsner and Christopher A. Gilmore, Portland, represented respondent.

HOLSTUN, Board Member; BASSHAM, Board Chair; BRIGGS, Board Member, participated in the decision.

TRANSFERRED

You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850.

FINAL OPINION AND ORDER

Holstun, Board Member.

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Petitioner appeals city Resolution 03-08, which is entitled "A Resolution Establishing a Preliminary Methodology and Area for a Reimbursement District for the Improvement of SE 147th Avenue." Record 3. As far as we can tell from the decision and the parties arguments, the resolution does not itself approve any roadway improvements; it merely provides a mechanism for recovering part of the cost of roadway improvements from certain undeveloped benefited properties, and identifies those benefited properties and the contribution that each property will be expected to make. Record 10.

As relevant, LUBA`s jurisdiction is limited to land use decisions. ORS 197.825(1).

Respondent moves to dismiss this appeal, arguing the challenged decision is not a land use decision that is subject to review by LUBA. We have previously held that reimbursement district decisions that are purely fiscal in nature, such as the one that is at issue in this appeal, are not land use decisions subject to LUBA review. Jesinghaus v. City of Grants Pass, 42 Or LUBA 477 (2002) (ordinance creating a reimbursement district); Baker v. City of Woodburn, 37 Or LUBA 563 (2000) (ordinance establishing a process for forming reimbursement districts, and resolution forming a reimbursement district for improvement of a particular road). Citing Jesinghuaus and Baker, respondent moves to dismiss this appeal.

Petitioner asserts the following in response to the motion to dismiss:

"Because of varying legal interpretations of whether establishing a reimbursement district is a land use decision, statutorily or judicially, and therefore reviewable by LUBA, and as a cautious approach in protecting petitioner's appeal rights, petitioner appealed the challenged decision to LUBA. * * *" Petitioner's Response to Motion to Dismiss 1 (footnotes omitted).

Petitioner cites State ex rel Moore v. City of Fairview, 170 Or App 771, 13 P3d 1031 (2000) and Friends of Yamhill County v. Yamhill County, ___ Or LUBA ___ (LUBA No. 2002-090, November 5, 2002) in support of her concern that the challenged reimbursement district might be viewed as a land use decision that is subject to review by LUBA.

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State ex rel Moore v. City of Fairview concerned a mandamus action. When the relator's subdivision was approved by the city in 1997, it was approved with a condition that required payment of sewer and water connection fees. That condition also provided that a reimbursement agreement to reimburse downstream developers of sewer and water faculties might be required. The relator did not appeal that subdivision decision to LUBA. When the relator later developed his subdivision, he paid the sewer and water connection fees under protest and filed the mandamus action to recover those fees. The Court of Appeals held that because the issues the relator sought to raise in...