S. St. Helens, LLC v. City of St. Helens

Under ORS 197.835(9)(a)(C), LUBA may only reverse a local government’s land use decision if the decision was based on facts that are not supported by substantial evidence in the whole record. If a reasonable person could make the disputed finding based on the entirety of the record, it is supported by substantial evidence.

Petitioner sought review of a Land Use Board of Appeals (LUBA) decision affirming the City of Saint Helens’ (City) denial of a sensitive lands permit to allow Petitioner to remove rock from a wetland protection area. Petitioner owns properties in St. Helens zoned “Apartment Residential” or “General Residential.” As a significant portion of the land is in a wetland protected area, Petitioner sought a sensitive lands permit to remove large quantities of basalt rock to level the land for the development of duplexes. On appeal, Petitioner argued LUBA erred in its interpretation of the evidence, including the contention that Petitioner would be engaged in “mining” the basalt rock. When reviewing a land use decision, LUBA may only reverse the decision if it was based on facts that are “not supported by substantial evidence in the whole record.” ORS 197.835(9)(a)(C). If a reasonable person, viewing the whole record, could make the disputed factual finding, then the finding is supported by substantial evidence. LUBA may not substitute its interpretation of the evidence in place of the local government’s to overturn a decision. As a reasonable person could have made the disputed factual findings, LUBA applied the correct standard of review in affirming the City’s denial of Petitioner’s sensitive lands permit application. Affirmed.