Tylka v. Clackamas County

A LUBA order is unlawful in substance if it represents a mistaken interpretation of applicable law. 1000 Friends of Oregon v. Clackamas County, 320 Or App 444, 452-53, (2022). “Where LUBA properly articulates its substantial-evidence standard of review. . .we will not reverse its determination unless there is no evidence to support the finding or if the evidence in the case is ‘so at odds with LUBA’s evaluation that a reviewing court could infer that LUBA has misunderstood or misapplied its scope of review.’” Stevens, 260 Or App at 772 (citing Younger v. City of Portland, 305 Or 346, 359 (1988).

Tylka sought judicial review of an order of the Land Use Board of Appeals (LUBA) which upheld an order for the Clackamas County Board of Commissioners approving an application for a dwelling permit on a lot adjacent to the Salmon River and in a principal river conservation area (PRCA) within a River and Stream Conservation Area overlay zone. Tylka argued that the order is legally flawed and not supported by substantial evidence as is required for a LUBA order. A LUBA order is unlawful in substance if it represents a mistaken interpretation of applicable law. 1000 Friends of Oregon v. Clackamas County, 320 Or App 444, 452-53, (2022). “Where LUBA properly articulates its substantial-evidence standard of review. . .we will not reverse its determination unless there is no evidence to support the finding or if the evidence in the case is ‘so at odds with LUBA’s evaluation  that a reviewing court could infer that LUBA has misunderstood or misapplied its scope of review.’” Stevens, 260 Or App at 772 (citing Younger v. City of Portland, 305 Or 346, 359 (1988)). Tylka was challenging an ordinance that required dwellings to be set back 128 feet from the river. Tylka believed it should be 150 feet as established by ZDO 704.04(A)(1). Tylka had three assignments of error. The first was that the county erred in considering the size of the other homes in the vicinity. The Court found LUBA was right in rejecting this argument and there was nothing that prohibited the county from doing so. Tylka’s second assignment follows that of his first and is again rejected by the Court. Tylka’s third assignment of error is that the mean water line was required to be measured in more than one location and there was not substantial evidence to show that it was. The Court agreed with LUBA’s finding that the requirement of the measurement of the mean higher water line as more than one location does not appear in ZDO 704.02(C). The Court concluded that LUBA’s order is not unlawful and is supported by substantial evidence. AFFIRMED.