Himmelberger v. City of Portland

LUBA will affirm a decision denying an application as long as there is one valid basis for denial.

Petitioner appeals a city decision denying his application for environmental review to develop a dwelling. In three assignment of error, petitioner argues the city misconstrued and made inadequate or erroneous findings concerning various review criteria under Portland City Code (PCC) 33.430.250. Because petitioner failed to challenge the city’s conclusions under two independent review criteria, (A)(3)(b) and (E)(1), each representing an alternative basis for denial, the city argues LUBA must affirm its decision.

Under (A)(3)(b), petitioner must demonstrate that “[t]here will be no significant detrimental impact on water bodies for . . . fish.” Under (A)(1)(b), petitioner must demonstrate that “[t]here will be no significant detrimental impact on resources and functional values in areas designated to be left undisturbed.” Petitioner replies that, by challenging the city’s findings under (A)(1)(b), he effectively challenged its findings under (A)(3)(b) since the city relied on its findings under the former in reaching its conclusion under the latter. Specifically, petitioner argues the city failed to find that the development would result in significant detrimental impacts. LUBA disagrees with petitioner. Even though the city’s conclusion under (A)(3)(b) was based on the same evidence supporting its conclusion under (A)(1)(b), petitioner was still required to assign error to each since they constitute separate approval criteria and since the city adopted separate findings. Furthermore, even assuming that petitioner’s argument under (A)(1)(b) applies equally under (A)(3)(b), the city is not required to affirmatively find that the proposed development will result in significant detrimental impacts. Rather, it is the applicant’s burden in environmental review to establish that the development will not have those impacts.

Under (E)(1), petitioner must demonstrate that the “[p]roposed development minimizes the loss of resources and functional values, consistent with allowing those uses generally permitted or allowed in the base zone without a land use review.” Under (E)(2), petitioner must demonstrate that the “[p]roposed development locations, designs, and construction methods are less detrimental to independent resources and functional values than other practicable and significantly different alternatives.” Petitioner replies that, by assigning error to the city’s conclusion under E(2), he effectively challenged the city’s conclusion under (E)(1). LUBA disagrees with petitioner. Although the city’s findings under (E)(1) show that it relied, in part, on its analysis under (E)(2), the two criteria address distinct concerns and petitioner was therefore required to assign error to each. The city’s decision is therefore AFFIRMED.