Botts Marsh, LLC v. City of Wheeler

Where a local government denies an application for a conditional use permit after evidentiary review, and where evidence offered by the applicant would have required the local government to infer alleged facts, LUBA will hold on appeal that the applicant’s evidence was not such that no reasonable trier of fact could not have believed it and, accordingly, there are no grounds for reversal.

Petitioner appealed the city council’s denial of their two applications for conditional use permits for their property zoned Water-Related Commercial (WRC) to establish (1) a hotel and (2) a commercial building with apartments on the second story. Petitioner’s applications included a traffic study, as required by city ordinance, demonstrating their project would not cause “traffic congestion” on “nearby streets.” The City found the traffic study insufficient to comply with the ordinance because potential traffic changes on one of the “nearby streets” identified and accessing Petitioner’s property were not evaluated in the study.

LUBA addressed only Petitioner’s second assignment of error, that the city council’s decision was not supported by substantial evidence. Petitioner argued that a) it was reasonable to assume that the street not included in the study would have only “nominal” traffic because it was not an intuitive connection likely to be used by nonlocals, b) the streets that were studied showed predicted traffic well below the city’s level of service (LOS) and volume-to-capacity thresholds, and c) the only inference that could be drawn was that Petitioner’s projects would not create congestion on the unstudied street. In response, the City argued that a) Petitioner’s study contained no quantifiable information regarding traffic impact on the unstudied street, only that it would be “nominal,” b) the City was not obligated to make any inferences based on non-quantifiable information, and c) the study finding the traffic elsewhere would be below the city’s LOS and volume-to-capacity thresholds did not conclusively establish the same for the unstudied street.

A local government is not required to infer alleged facts have been established if they are not established in the record. River City Disposal v. City of Portland, 35 Or. LUBA 360, 369 (1998); Oregon Pipeline Company v. Clatsop County, 71 Or. LUBA 246, 263 (2015). For LUBA to reverse a denial on evidentiary grounds, the petitioner must demonstrate the evidence does more than support “affirmative findings of fact and conclusions on all applicable legal criteria. The evidence must be such that a reasonable trier of fact could say only the [proponent’s] evidence should be believed.” Weyerhauser v. Lane County, 7 Or. LUBA 42, 46 (1982).

LUBA denied Petitioner’s second assignment of error, finding it was undisputed that Petitioner’s traffic study did not evaluate the other “nearby street” and the only evidence of the traffic’s impact on that street came from the traffic expert’s assumptions. As the City was not required to make inferences based off the evidence from the streets that were studied, LUBA concluded Petitioner had not established that no reasonable trier of fact could reach the City’s conclusion.

LUBA did not address Petitioner’s first assignment of error because, where LUBA had already affirmed one of the City’s reasons for its decision, further analysis of alternate bases on LUBA’s part would be an impermissible advisory opinion. LUBA rejected the Petitioner’s third assignment of error regarding a claimed regulatory taking as unripe because there had been no other denials based on the City’s evidentiary analysis of the applications, and thus it could not be established Petitioner had been deprived of all economic use of their property.

Affirmed.