YOUNGER еt al, Petitioners on Review, υ. CITY OF PORTLAND et al, Respondents on Review.
(LUBA 86-046; CA A43194; SC S34287)
In the Supreme Court of the State of Oregon
March 29, 1988
346 Or. 346 | 752 P2d 262
Argued and submitted January 19, decisions of Court of Appeals and Land Use Board of Appeals reversed and remanded to Land Use Board of Appeals for reconsideration March 29, 1988
Kathryn Beaumont Imperati, Chief Deputy City Attorney, Portland, argued the cause for respondent on review City of Portland. With her on the briefs was Peter A. Kasting, Deputy City Attorney, Portland.
Susan M. Quick, Washburn & Kemp, San Francisco, California, argued the cause for respondents on review Fred Meyer Real Estate Propertiеs, Ltd. and Hyster Company.
Robert C. Cannon, Marion County Legal Counsel, Salem, filed an amicus curiae brief on behalf of Marion County, Oregon.
LENT, J.
Peterson, C. J., concurred and filed an opinion in which Jones, J., joined.
The Land Use Board of Appeals (LUBA) may reverse or remand a local government‘s land use decision if the decision is “not supported by substantial evidence in the whole record.”
I.
Respondents Fred Meyer Real Estate Properties, Ltd. (Fred Meyer) and Hyster Company applied to respondent City of Portland for a comprehensive plan1 amendment and zone changes for a 17.4-acre site in Portland that had been used by Hyster for a manufacturing plant. The site was designated for heavy and general manufacturing in the city‘s comprehensive plan and zoned accordingly. Respondents sought a plan amendment and zone changes to light manufacturing in order to permit Fred Meyer to build on the site a shopping center and offices, which are permitted uses under that classification. Petitioners, most of whom are residents of areas adjacent to the proposed development, objected to the plan amendment and zone changes on the grounds that the changes would produce traffic increases and adverse effects on neighboring businesses that would violate numerous provisions of the city‘s comprehensive plan.
Following hearings on respondents’ application, a
Petitioners appealed to LUBA, contending, inter alia, that the city‘s findings with respect to traffic and economic effects were insufficiently supported by evidence in the record.2 In particular, petitioners argued that the evidence upon which the city council relied was so undermined by other evidence in the record that the city council‘s decision could not be said to be supported by “substantial evidence in the whole record.”
LUBA rejected petitioners’ arguments and affirmed.
“We do not find the evidence presented by the petitioner to be necessarily more ‘believable’ than that furnished by the applicant. Further, it is not our function to decide which evidence is the more correct. Our review of the evidence suggests that evidence on both sides would support a decision. That is, either the evidence of the petitioner or that of the applicant is sufficient to form the basis for a decision. It is not our place to decide for the city which evidence it should believe. The city has done what it is required to do. It considered the evidence on both sides, weighed it (and in so doing considered its credibility) and made findings. Braidwood v. City of Portland, 24 Or App 477, 546 P2d 277 (1976). Under these circumstances, we cannot say that the evidence supporting the city‘s decision is not substantial evidence. Home Builders Association of Metropоlitan Portland v. Metropolitan Service District, 54 Or App 60, 633 P2d 1320 (1981).”
Younger v. City of Portland, ___ Or LUBA ___ (86-046) (January 30, 1987) (slip op at 8-9).3
“[W]here there is conflicting evidence based upon differing data, but any of the data is such that a reasonable person might accept it, a conclusion based upon a choice of any of that data is, by definition, supported by substantial evidence.”
Id., 54 Or App at 63. Because the Legislative Assembly had not acted to change the construction given to LUBA‘s scope of review by Home Builders, the Court of Appeals concluded that LUBA had correctly refused to evaluate the substantiality of supporting evidence in the manner urged by petitioners. Younger v. City of Portland, supra, 86 Or App at 217-18.5
II.
“[LUBA] shall reverse or remand the land use decision under review if [LUBA] finds:
“(a) The local government or special district:
“*****
“(C) Made a decision not supported by substantial evidence in the whole record[.]”
The issue in this case turns on the meaning of the phrase “in the whole record.”6
The phrase “substantial evidence in the whole record” entered the APA in 1971 as part of an overhaul of the APA effected by HB 1213, which was drafted by an administrative law committee of the Oregon State Bar. Or Laws 1971, ch 734, § 18(7)(d); Report of the Committee on Administrative Law of the Oregon State Bar on the Conforming Amendments to HB 1213 to the Committee on the Judiciary of the House of Representatives. Section 18(7)(d) of the 1971 act directed a reviewing court to reverse or remand an agency order “not supported by reliable, probative and substantial evidence in the whole record.” The bar committee‘s report on the proposed legislation states that the scope of review provisions were based on the Model State Administrative Procedure Act (MSAPA). 1967 Oregon State Bar Committee Reports 24.
The MSAPA was first approved in 1946 and substantially revised in 1961. The provisions for judicial review of administrative factual determinations in the original and revised models differed significantly, but both made reference to review upon the “whole” or “entire” record. Section 12(7)(e) of the original model provided for remand or reversal
Thе federal Administrative Procedure Act (federal APA), which was enacted in the same year the MSAPA was approved, also refers to the “whole record” in providing for review of factual determinations. Section 10(e) of the federal APA requires a reviewing court, in evaluating an administrative decision for substantial supporting evidence, to “review the whole record.” 60 Stat 237, 244,
These references to review upon the “whole” or “entire” record can be traced to the widespread perception in the 1930s and 1940s that courts had, at least with respect to review of administrative decisions, wrongly interpreted the longstanding “substantial evidence” rule to mean that the substantiality of evidence supporting a decision was to be evaluated by considering the supporting evidence alone. That perception was described in the influential minority report to the 1941 final report of the U.S. Attorney General‘s Committee on Administrative Procedure:
“The present scope of judicial review is also subject to question in view of one of the prevalent interpretations of the ‘substantial evidence’ rule set forth as a measure of judicial review in many important statutes. Under this interpretation, if what is called ‘substantial evidence’ is found anywhere in the record to support conclusions of fact, the courts are said to be obliged to sustain the decision without reference to how heavily the countervailing evidence may preponderate — unless indeed the stage of arbitrary decision is reached. Under this interpretation, the courts need to read only one side of the case and, if they find any evidence there, the administrative action is to be sustained and the record to the contrary is to be ignored.”
The recommendation of the minority report was incorporated into the federal APA. See
“Whether or not it was ever permissible for courts to determine the substantiality of evidence supporting a Labor Board decision merely on the basis of evidence which in and of itself justified it, without taking into account contradictory evidencе or evidence from which conflicting inferences could be drawn, the new legislation definitively precludes such a theory of review and bars its practice. The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. This is clearly the significance of the requirement * * * that courts consider the whole record. Committee reports and the adoption in the Administrative Procedure Act of the minority views of the Attorney General‘s Committee demonstrate that to enjoin such a duty on the reviewing court was one of the important purposes of the movement which eventuated in that enactment.
“To be sure, the requirement for canvassing ‘the whole record’ in order to ascertain substantiality does not furnish a calculus of value by which a reviewing court can assess the evidence. *** Nor does it mean that even as to matters not requiring expertise a court may displace the Board‘s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo. Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the recоrd in its entirety furnishes, including the body of evidence opposed to the Board‘s view.”
The minority report, along with the so-called “Benjamin Report,” also influenced the drafting of the MSAPA. See 9C Uniform Laws Annotated 175-76 (1957). The Benjamin Report, formally entitled “Administrative Adjudication in the State of New York,” was an extensive report on state administrative procedure presented to the governor of New York in 1942. With resрect to the scope of judicial review of factual determinations, the Benjamin Report was notable for its approving discussion of Matter of Stork Restaurant, Inc. v. Boland, 282 NY 256, 26 NE2d 247 (1940), which held that in applying the substantial evidence test, “[t]he evidence produced by one party must be considered in connection with the evidence produced by the other parties. Evidence which unexplained might be conclusive may lose all probative force when supplemented and explained by other testimony.” Id., 26 NE2d at 255. The Benjamin Report concluded: “The substantial evidence test, as defined by the Stork Restaurant case, is thus a test of the rationality of a quasi-judicial determination, taking into account all the evidence on both sides.” Administrative Adjudication in the State of New York, supra, at 329.
The influence of the minority report and the Benjamin Report on the scope of review provisions of the MSAPA can clearly be seen in changes made in the drafts of the MSAPA after the publication of those reports. The 1939 draft, in section 4(4), called for reversing administrative decisions “unsupported by substantial evidence or clearly erroneous.” Handbook of the National Conference of Commissioners on Uniform State Laws and Proceedings 165 (1939). By 1942, draft section 23(4) called for reversing decisions “unsupported by substantial evidencе in view of the entire record as submitted.” Handbook of the National Conference of Commissioners on Uniform State Laws and Proceedings 276 (1942). This is not significantly different from the provision that received final approval in 1946 as section 12(7)(e) of the MSAPA: “unsupported by competent, material, and substantial evidence in view of the entire record as submitted.”
Respondents contend that several opinions of this court, e.g., Menges v. Bd. of Comm., 290 Or 251, 621 P2d 562 (1980); Bay v. State Board of Education, 233 Or 601, 378 P2d 558 (1963), have applied a “substantial evidence” test by evaluating the substantiality of supporting evidence without considering the whole record. The point of this contention is apparently that the Legislative Assembly, notwithstanding its use of the phrase “in the whole record,” intended to adopt this method of evaluation when it enacted
One explanation for this court‘s past failure to address the “whole record” issue may be that reviewing the substantiality of evidence on less than the whole record is somewhat of an irrational exercise. As Professor Jaffe noted prior to the enactment of the federal APA, “Obviously responsible men would not exercise their judgment on only that part of the evidence that looks in one direction; the rationality or substantiality of a conclusion can only be evaluated in the light of the whole fact situation or so much of it as appears.” Administrative Procedure Re-examined: The Benjamin Report, 56 Harv L Rev 704, 733 (1943).
Having decided that LUBA‘s evaluation of the substantiality of evidence supporting a decision must consider all the evidence in the record, we must now dеcide the proper disposition of this case.
“shall reverse or remand the order only if it finds:
“(a) The order to be unlawful in substance or procedure, but error in procedure shall not be cause for reversal or remand unless the court shall find that substantial rights of the petitioner were prejudiced thereby;
“(b) The order to be unconstitutional; or
“(c) The order is not supported by substantial evidence in the whole record as to facts found by the board under
ORS 197.830(11) .”
Because neither findings made by LUBA nor the constitutionality of its order are at issue, our review of its order is limited to whether the order is “unlawful in substance or procedure.”
If LUBA were to affirm a land use decision not supported by substаntial evidence in the whole record, LUBA‘s affirmance would be “unlawful in substance” and subject to reversal or remand upon judicial review. Nevertheless, judicial review under
“Whether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Courts of Appeals. This Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied.”
Universal Camera Corp. v. Labor Bd., supra, 340 US at 491.
Whether LUBA misapplied the substantial evidence test in this case is unclear. In the opinion accompanying its order, LUBA cites Court of Appeals opinions in Home Builders v. Metro Service Dist., 54 Or App 60, 633 P2d 1320 (1981); Christian Retreat Center v. Comm. for Wash. Co., 28 Or App 673, 560 P2d 1100 (1977); and Braidwood v. City of Portland, 24 Or App 477, 546 P2d 777 (1976). These opinions are somewhat ambiguous with respect to whether substantiality must be evaluated by considering the whole record. Particularly ambiguous is the statement in Home Builders, relied upon by the Court of Appeals in this case, that “substantial evidence consists of evidence which a reasonable mind could accept as adequate to support a conclusion.” Home Builders v. Metro Service Dist., supra, 54 Or App at 62 (quoting Braidwood v. City of Portland, supra, 24 Or App at 480). The statement begs the question how the adequacy of the supporting evidence is to be evaluated. A person might, considering supporting evidence in isolation, reasоnably rely upon that evidence to reach a conclusion, but if the supporting evidence is sufficiently refuted by other evidence, then continued reliance upon the supporting evidence is unreasonable, no matter how substantial that evidence would appear in isolation. Whether the court in Home Builders would have evaluated the reasonableness of the supporting evidence in isolation or in light of all the evidence is unclear.
We emphasize that the question LUBA is to decide on remand is simply whether, in light of all the evidence in the record, the city‘s decision was reasonable. See Universal Camera Corp. v. Lаbor Bd., supra, 340 US at 487-88; City of Portland v. Bureau of Labor and Ind., 298 Or 104, 119, 690 P2d 475 (1984); cf.
We also emphasize that LUBA, in its written opinions, need not always address in detail “whether or not the conflicting evidence rendered the supporting evidence no longer ‘substantial,’ and why,” as petitioners contend. It would be helpful and desirable for LUBA to do that, but the function of a reviewing court under
The decisions of the Court of Appeals and of LUBA are reversed. The case is remanded to LUBA for reconsideration in light of this opinion.
PETERSON, C. J., concurring.
The LUBA order suggests that LUBA may have evaluated the evidence as required by Part II of the majority opinion. However, because there is some question whether LUBA misapplied the substantial evidence test, I concur in the remand to LUBA.
The remand to LUBA does not necessarily require a new hearing. What is required is a reconsideration in light of the rules stated in the majority opinion. If LUBA affirms the City‘s decision, on the substantiаl evidence question, the order should state that LUBA considered all the evidence in the whole record and that the evidence supporting the City‘s decision is substantial, after giving full consideration to all the evidence, whether it bolsters or detracts from the evidence supporting the decision.
Jones, J., joins in this concurring opinion.
Notes
Younger v. City of Portland, ___ Or LUBA ___ (86-046) (January 30, 1987) (slip op at 21-22).“We are not empowered to decide whether Dr. Whitelaw is more correct than the Hobson report and other supporting evidence relied upon by the city. * * * We conclude, therefore, that while there exists believable evidence on both sides of this question, we are unable to find as a matter of law, that the city‘s evidence is not substantial. That is, we conclude the city‘s evidence is such that a reasonable person would believe it to be sufficient to support a decision. Christian Retreat Center v. Board of Commissioners of Washington County, 28 Or App 673, 560 P2d 1100; rev den (1977).”
Oregon Laws 1979, chapter 772, also contained three other “substantial evidence” provisions, two relating specifically to LUBA, and one amending the writ of review statutes. All contained the language “substantial evidence in the whole record.” Section 4(7) (now codified, with minor changes not relevant to this case, as
298 Or at 119. See also Brown v. AFSD, 75 Or App 98, 102, 705 P2d 236 (1985) (holding that, “in view of the whole record,” agency decision was not supported by substantial evidence); id. at 102-04 (Gillette, J., concurring) (urging that “the pertinent methodology [for reviewing for substantial evidence] is that enunciated by the United States Supreme Court in Universal Camera“).“On judicial review under
ORS 183.482(8)(c) , a court can reverse the Commissioner only if the only reasonable deduction to be drawn from the evidence as a whole, including that presented by the City, is that the disparity in pay was other than ‘because of’ Potter‘s female sex. To put it another way, if a reasonable person on the evidence in the rеcord could draw the inference that the acknowledged disparity arose from compensating the female employe at a lower rate than the male employe ‘because she is a female,’ the Commissioner‘s decision on the facts must prevail, no matter what the court might believe from the evidence.” (Emphasis added.)
Some decisions of this court have applied an “any evidencе” test or an “any substantial evidence” test that does not appear to have involved a consideration of the entire record. These decisions, however, involved writ of review cases decided prior to amendments permitting review of factual determinations, see, e.g., City of Portland v. Garner et al, 226 Or 80, 92, 358 P2d 495 (1961) (“any evidence whatever“); Smith v. City of Portland, 25 Or 297, 301, 35 P 665 (1894) (“entire absence of proof“); or review of jury findings, see, e.g., Wagner v. Kaiser Foundation Hospitals, 285 Or 81, 84, 589 P2d 1106 (1979) (“any competent evidence“); Hansen v. Bussman, 274 Or 757, 763, 549 P2d 1265 (1976) (“any substantial evidence“). Review of jury findings or verdicts is governed by Article VII (Amended), section 3, of the Oregon Constitution, which provides: “[N]o fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict.”