Joy v. City of Ashland

1) The location of a particular issue within a set of findings is not dispositive, nor is the manner in which it is framed, so long as the issue is present and adequately addressed. 2) "[LUBA] will affirm a local government decision where a petitioner fails to acknowledge or challenge the findings adopted to address the issues petitioner attempted to raise below, Dion v. Baker County, 72 Or LUBA 18 307, 314-15 (2015), even where the findings adopted are that a particular issue is irrelevant. 3) Where a conclusion as to a broad array of circumstances is supported by substantial evidence, a conclusion as to a particular circumstance within that array is also supported by substantial evidence.

Petitioners appealed the Planning Commission’s (Commission’s) decision approving a conditional use permit (CUP) authorizing a wireless communication facility (WCF) to be constructed above a replacement light standard at the stadium at Southern Oregon University. The approved application limited the height of the WCF to 85 feet, though a height of 95 feet was requested, and required the light standard to match the design and materials of the existing structure.

Ashland Municipal Code (AMC) 18.5.4.050(A)(3) requires CUP uses to have “no greater adverse material impact on the livability of the impact area when compared to the subject lot with the target use of the zone,” and provides factors to be considered when assessing impact, including “[o]ther factors found to be relevant by the approval authority for review of the proposed use.”

In their first assignment of error, Petitioners argued that the Commission misconstrued AMC 18.5.4.050(A)(3) and made inadequate findings not based on substantial evidence. Specifically, Petitioners argued that the Commission’s findings did not properly address evidence of property devaluation as a part of AMC 18.5.4.050(A)(3)’s “other relevant factors.” Findings must "(I) identify the relevant approval standards, (2) set out the facts which are believed and relied upon, and (3) explain how those facts lead to the decision on compliance with the approval standards." Heiller v. Josephine County, 23 Or LUBA 551, 556 (1992). LUBA reasoned that, because the Commission’s findings discussed the potential impact of the WCF on property values, it was not of consequence where in the findings the discussion appeared or whether property devaluation was specifically named as an “other relevant factor.” Accordingly, LUBA found that the Commission’s findings were not inadequate.

In their second assignment of error, Petitioners argued that the Commission’s findings were inadequate because they failed to address the Middle-Class Tax Relief and Job Creation Act of 2012, which Petitioners interpreted as precluding and preempting project opponents “from having any meaningful impact on the application" beyond the current approval process. "[LUBA] will affirm a local government decision where a petitioner fails to acknowledge or challenge the findings adopted to address the issues petitioner attempted to raise below. Dion v. Baker County, 72 Or LUBA 18 307, 314-15 (2015). LUBA found that the Commission had adopted findings that “[t]he concern that approval of a [WCF] will weaken rights to petition government for redress of future grievances does not relate to any approval criteria or standards and is not applicable to the current request.” LUBA reasoned that because Petitioners did not challenge or otherwise address the finding, there were no grounds for addressing the assignment further. Accordingly, LUBA held that the Commission’s findings were not inadequate.

AMC 18.4.10.040(B) sets out the city's design hierarchy for WCFs, explaining that "[t]he following preferred designs are a stepped hierarchy. . . 1. Collocation. . . Where technically feasible, collocate new facilities on pre-existing structures with [WCFs] in place or on pre-existing towers.” AMC 18.4.10.010(B) defines feasible as “capable of being done, executed or affected; possible of realization.”

In their third assignment of error, Petitioners argued the Commission’s conclusion that alternate sites did not exist was not supported by substantial evidence and that the Commission misconstrued the law when evaluating the feasibility of alternate sites. Specifically, Petitioners argued that the third-party analysis adopted by the Commission was flawed because it was based on a WFC with a height of 95, not 85, feet and because it used a standard of “reasonable” instead of “feasible.” Substantial evidence is evidence a reasonable person would rely upon to make a decision. Dodd v. Hood River County, 317 Or 172, 179 (1993). LUBA reasoned that because the analysis considered why collocation in the area was not possible at any height, the decision that the 85-foot WFC could not be collocated was supported by substantial evidence. LUBA further reasoned that because the analysis’ conclusion that the “proposed site was the only technically viable alternative was consistent with a finding that other sites were not “feasible.” Accordingly, LUBA held that the Commission had not misconstrued the applicable law. Affirmed.