Velasquez v. Jackson County

Fact finders have discretion to weigh evidence and choose what evidence to rely on in making decisions. A petitioner’s desire that a decision maker rely on different evidence does not provide a basis for reversal or remand of the challenged decision.

Jackson County Land Development Ordinance (LDO) 8.5.3(F) requires a 200-foot setback from forest zoned land for any residential structure on nonresource land. However, when no conforming location exists on the nonresource land that can accommodate the proposed residential structure, the county may approve a reduced setback. Petitioners’ property is zoned Rural Residential 5 (RR-5), and is adjacent to intervenors’ property zoned Woodland Resource (WR). Petitioners requested a reduction of the required setback to 55 feet from intervenors’ property line, in order to construct their dwelling within an existing clearing. The county denied their request and this appeal followed. 

In the second assignment of error, petitioners argue the county erred by failing to consider the destruction of forest on the subject property that would result from development outside the existing clearing. Because petitioners did not raise this argument before the county, because it is not adequately briefed for LUBA’s review, and because no applicable land use regulation requires the county to consider impacts to natural resources on nonresource zoned land in denying a reduced setback request, LUBA agrees with intervenors that the second assignment of error provides no basis for reversal or remand and it is therefore denied. 

Petitioners argued below that the setback reduction should be approved because a 200-foot setback, when combined with steep slopes, would prohibit development on the property. In support of their argument, petitioners relied on two contour maps which neither were signed by a surveyor nor contained a correct scale. Finding that the contour maps were not reliable, accurate, or trustworthy evidence, the county relied on other maps sourced from county data to find that there was in fact buildable area within the setback envelope that did not contain steep slopes. Moreover, the county reasoned that steep slopes do not prohibit development but merely require further assessment and evaluation to ensure the public health, safety, and welfare. In the first assignment of error, petitioners argue the county’s decision was not supported by substantial evidence because it disregarded their contour maps. Because petitioners do not establish that, viewing the record as a whole, credible evidence weighs overwhelmingly in favor of their description of slopes on the property, and because petitioners failed to challenge the county’s conclusion that steep slopes do not prohibit development, the first assignment of error provides no basis for reversal or remand, is therefore denied, and the county’s decision is AFFIRMED.