Neighbors for Smart Growth v. Washington County

(1) Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding and (2) any error in accepting “new evidence” during a non-evidentiary remand proceeding could provide a basis for reversal or remand only if the error prejudiced petitioners’ substantial rights.

Petitioner appeals a county decision vacating a public easement. Intervenor applied to vacate a public easement on one side of its property. Relying on intervenor’s proposal to construct a replacement easement on the other side of its property, the county approved the application. On appeal, LUBA held that that the county adopted inadequate findings addressing issues raised by petitioners regarding the safety and adequacy of the replacement easement. The county conducted a non-evidentiary remand proceeding, wherein it adopted supplemental findings and reapproved the application. This appeal followed.

The supplemental findings state that a homeowners association (HOA) will maintain sidewalk striping to prevent vehicles from blocking the replacement easement. In addition, during deliberations, the county asked a question of county counsel, which offered a response based on what they believed was already in the record. In the second assignment of error, petitioners argue the county erred by accepting new evidence with respect to both of these items. LUBA agrees with intervenor that there is substantial evidence in the record for a reasonable person to infer, even if incorrectly, that the HOA would maintain the sidewalk striping, and that the county counsel’s recollection, even if inaccurate, does not constitute “new evidence.” Furthermore, even if the county counsel’s response was “new evidence,” it did not prejudice petitioners’ substantial rights because it played no apparent role in the county’s final decision. The second assignment of error is therefore denied.

Resolution and Ordinance 84-261 sets out approval criteria for vacating public easements, including consideration of whether the vacation creates an access configuration that violates present development standards. The county’s supplemental findings conclude, among other things, that the easement is safe because it complies with all Community Development Code (CDC) development standards. In the first assignment of error, petitioners argue that neither the private street adjacent to the replacement easement nor the replacement easement itself comply with certain CDC standards. Because some of these CDC standards address matters other than access configurations, and because construction of the replacement easement does not cause or create any of the alleged noncompliance, LUBA rejects petitioners’ argument. The first assignment of error is therefore denied and the county’s decision is AFFIRMED.