352 P.3d 746
Or. Ct. App.2015Background
- Petitioner owns property in St. Helens zoned AR/R5 that includes a high camas basalt bluff and proposed to remove large volumes of basalt and add fill to develop duplexes.
- Removal would occur within a protected wetland area; petitioner applied for a sensitive lands permit.
- City denied the permit on two alternative grounds: (1) the excavation was “natural mineral resources development,” which is not allowed in AR/R5 zones; and (2) even if not mineral development, the proposed rock removal is not a listed or approvable unlisted use in those zones.
- LUBA affirmed the city’s denial, relying on the alternative finding that the use is not allowed in the zones.
- Petitioner sought judicial review, challenging LUBA’s application of the substantial-evidence standard and LUBA’s interpretation of “natural mineral resources development.”
- The court affirmed LUBA, concluding LUBA correctly applied the standard and that the alternative basis (use not listed/approvable) was independently adequate to deny the permit; the court did not need to resolve the mineral-development question.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether LUBA applied the correct standard of review (substantial-evidence) | Petitioner argued LUBA erred in evaluating evidence and findings (e.g., whether activity amounted to mining) | LUBA and City argued it applied the ORS 197.835(9)(a)(C) substantial-evidence standard and should not be reversed absent misapplication | Court held LUBA properly articulated and applied the substantial-evidence standard and did not misapply its scope of review |
| Whether proposed excavation is “natural mineral resources development” under city code | Petitioner implicitly contested classification (arguing against mining characterization) | City (and LUBA) treated the excavation as natural mineral resources development, which is disallowed in AR/R5 | Court declined to decide definitively but was inclined to agree with LUBA; ultimately unnecessary to resolve because of alternative ground |
| Whether the proposed rock removal is a listed or approvable unlisted use in AR/R5 zones | Petitioner argued the project should be allowable (or approvable) | City/Planning Commission found rock removal at proposed scale is not listed and does not meet criteria for an unlisted use | Court held LUBA’s alternative finding that the use is not allowed in AR/R5 was supported by substantial evidence and independently justified denial |
| Whether petitioner can pursue a modified proposal | Petitioner expressed skepticism about feasibility and city receptiveness to a more limited plan | City/LUBA indicated a more modest grading for access and utilities could be treated as residential development rather than mining | Court agreed nothing precludes petitioner from proposing a more modest, compliant development and affirmed LUBA’s observation |
Key Cases Cited
- Stevens v. City of Island City, 260 Or App 768 (2014) (describing the limited role of appellate review of LUBA’s factual determinations)
- Wetherell v. Douglas County, 209 Or App 1 (2006) (substantial-evidence standard explained)
- Younger v. City of Portland, 305 Or 346 (1988) (standard for appellate deference to local land-use factfinding)
- 1000 Friends of Oregon v. Marion County, 116 Or App 584 (1992) (LUBA/local government evidentiary deference)
- Citizens for Responsibility v. Lane County, 218 Or App 339 (2008) (reviewing court’s duty to examine LUBA’s application of substantial-evidence test)
- Beall Transport Equipment Co. v. Southern Pacific, 186 Or App 696 (2003) (court will not develop undeveloped arguments for a party)