Fairmount Neighborhood Association v. City of Eugene

LUBA will not second guess a decision maker’s choice between conflicting evidence, including expert testimony, so long as a reasonable person could decide as the decision maker did.

Intervenors applied for tentative PUD approval. Under Eugene Code (EC) 9.8320(6), intervenors were required to establish that the PUD would not be a significant risk to public health and safety, including soil erosion and slope failure. Additionally, under the South Hills Study (SHS), intervenors were required to submit an “adequate review of both on-site and off-site impacts by a qualified engineering geologist.” In their application, intervenors submitted geotechnical analyses, including assessment of 19 test pits on the subject property, and a technical stormwater review. Although the geotechnical analyses identified areas of previous landslide activity, they concluded that new activity was not expected as long as the PUD would (1) not remove materials from the bottom of slopes, (2) minimize the amount of fill placed at the top of slopes, and (3) discharge stormwater in a controlled manner. Concluding that the PUD would avoid and mitigate these landslide triggers, the city approved the application. This appeal followed.

In their assignment of error, petitioners argue the city’s decision was not based on substantial evidence. Specifically, petitioners point to expert testimony that the number and location of test pits do not accurately reflect the landslide risk and argue that part of the PUD would be constructed in landslide-susceptible areas. Because nothing in EC 9.8320(6) requires that test pits capture a specific area of the subject property; because the geotechnical analyses also relied on on-ground observations, aerial photographs, and various soil maps; and because the analyses indicated that the landslide areas were historic and not active, LUBA concludes that a reasonable person could have decided as the city did.

Petitioners also argue that stormwater discharge from the PUD will be directed to landslide areas and create a risk to off-site homes. Because intervenors proposed installing stormwater detention systems, because intervenors’ technical stormwater review demonstrates that those systems would restrict the PUD’s peak flow rate to pre-development conditions, and because petitioners do not dispute the components of those systems, LUBA concludes that a reasonable person could have decided as the city did.

Additionally, petitioners submitted expert testimony, based on photographs of a structurally deformed barn, that the subject property has recently been affected by slope movement. Because intervenors’ geotechnical analyses indicate that the subject property’s slopes are stable and that there is a difference between “soil creep,” which is common on most hillsides, and landslides, LUBA again concludes that a reasonable person could have decided as the city did. For the foregoing reasons, the assignment of error is denied and the city’s decision is AFFIRMED.