- Court: Oregon Court of Appeals
- Area(s) of Law: Land Use
- Date Filed: 09-05-2024
- Case #: A184314
- Judge(s)/Court Below: Egan, P.J.; Kamins, J.; Walters, S.J.
- Full Text Opinion
Petitioner sought judicial review of the Land Use Board of Appeals (‘LUBA’) order to remand the City of Cannon Beach’s denial of Respondent’s application for a development permit. Petitioner assigned four errors to LUBA, arguing (1) that Respondent’s application did not comply with tree-removal standards per, so LUBA erred in affirming; (2) that LUBA erred in determining Respondent’s application satisfied the clear-vision criteria; (3) that LUBA erred in reversing the city’s conclusion that Respondent’s application did not comply with ocean setback standards; and (4) LUBA erred in rejecting Petitioner’s argument Respondent’s proposed driveway did not meet the city’s geological standards. “We review LUBA’s order to determine whether it is ‘unlawful in substance or procedure’, ORS 197.850(9)(a), and for ‘whether LUBA correctly applied the substantial evidence standard. A LUBA order is unlawful in substance if it represents a mistaken interpretation of the applicable law”. Tylka v. Clackamas County, 330 Or App 247, 248 (2024). The Court reasoned that LUBA was correct in affirming (1) because the application was conditioned on ongoing compliance with the tree-removal standards; (2) because the record supports only a determination that Respondent’s satisfied the clear-vision criteria; and (3) because LUBA was correct in their conclusion that the ocean setbacks standard could not be applied as a matter of law. The Court further reasoned that LUBA erred in rejecting argument (4) because the wrong test was applied. Therefore, LUBA’s decisions as to errors (1) – (3) are affirmed and LUBA’s decision as to error (4) is reversed. Affirmed in part; remanded in part.