Kretzer v. City of Shady Cove

Under ORS 197.835(9)(a)(C), LUBA will remand a local government decision if it is “not supported by substantial evidence in the whole record.” Substantial evidence is evidence that a reasonable person would rely upon to reach a decision. Dodd v. Hood River County, 855 P.2d 608 (1993).

Petitioner appealed the City’s denial of their permit applications for bridge construction and vegetation removal on their property designated a Federally Identified Floodway and local Riparian Protection Corridor. The City had received separate complaints that Petitioner constructed a pedestrian bridge over a river on their property without a Floodplain Development Permit and removed vegetation from their part of a river island without a Riparian Permit. The City directed Petitioner to submit after-the-fact permit applications for both activities, and after two public hearings on the applications, the City denied both applications.

On appeal, Petitioner assigned error on five grounds. LUBA’s analysis primarily focused on the third and fifth assignments of error: 3) there was not substantial evidence to support the city council’s denial of their application for ongoing vegetation removal, and 5) there was substantial evidence that Petitioner’s bridge met the requirements of the applicable ordinances. The City did not respond to Petitioner’s appeal.

Under ORS 197.835(9)(a)(C), LUBA will remand a local government decision if it is “not supported by substantial evidence in the whole record.” Substantial evidence is evidence that a reasonable person would rely upon to reach a decision. Dodd v. Hood River County, 855 P.2d 608 (1993).

LUBA denied Petitioner’s third assignment of error, finding the City’s conclusion that Petitioner’s application materials were inadequate for approval was supported by substantial evidence. In particular, LUBA found the evidence supported that, while Petitioner’s vegetation removal activities were done in service of a permitted water-related use under the local Riparian Ordinance, they were not a permitted use on their own, and that they were done in excess of what was necessary for the permitted water-related use. LUBA also determined there was substantial evidence that Petitioner’s landscaping plans were too vague for the City or the Oregon Department of Fish & Wildlife (ODFW) to approve, citing ODFW and City communications expressing concern that Petitioner’s plans did not sufficiently describe how they would meet the requirements of the Riparian Ordinance. LUBA concluded there was substantial evidence in the record to support the City’s denial of Petitioner’s permit for ongoing vegetation removal.

LUBA then denied a portion of Petitioner’s fifth assignment of error, determining that the City’s use of a heightened review of Petitioner’s application was valid because the requirements of the Ordinance were a minimum, not an absolute, and that Petitioner’s evidence was insufficient for approval under that higher standard. In particular, LUBA pointed out where the Ordinance required an applicant to seek a permit prior to constructing a bridge, a reasonable person could find that a bridge constructed without first gaining the required permit and having the City’s supervision and an engineer’s approval throughout the planning and construction process may not be properly able to meet flood-resistance requirements under the Ordinance. LUBA concluded it was acceptable in this instance for the city council to require evidence of the bridge’s compliance beyond the minimum requirements of the permit application.

Affirmed.