Willis v. Clackamas County

Under ZDO 1203.03(C), a finding that an application complies with the traffic safety requirements is supported by substantial evidence where there is testimony of a traffic engineer and a traffic study, and there is an absence of a developed challenge to the findings and testimony on that point.

Petitioners appealed a decision by the hearings officer to approve a conditional use permit for a home occupation to host events in a pole barn. Under the second assignment of error, petitioners argued that LUBA must reverse the approval because the decision lacked substantial evidence to show that the application complied with the traffic safety requirements of ZDO 1203.03(C), which provides that the application must demonstrate that “the safety of the transportation system is adequate to serve the proposed use.” The evidence provided by the respondents included the testimony of a traffic engineer and a traffic study conducted by that engineer. Petitioners argued that the testimony and traffic study were not credible for three reasons: first, the county’s traffic engineer testified that “SE Oral Hull Road is a gravel public road that is not maintained by the county,” when in fact it is a cement road that is maintained by the county. Second, the traffic study was based on traffic counts taken on two-mid-week days, where the proposed events were for the weekends, and third, because the counts were taken at time where two nearby traffic generating businesses were closed.

LUBA disagreed with these arguments, because a reasonable person could rely on the traffic study to conclude that ZDO 1203.03(C) was met, and “absent a developed challenge to the findings and testimony on this point, petitioner has failed to establish that the hearings officer’s decision is not supported by substantial evidence in the whole record.” AFFIRMED.