Widmer v. City of Troutdale

Where a petitioner does not meet their burden to show a local government’s decision was not based on the subjective “reasonable person” standard under ORS 197.835(9)(a)(C) as a matter of law nor show the evidence the local government relied on did not meet the reasonable person standard, LUBA will affirm.

Petitioners (Applicants) appealed to LUBA the City’s denial of their application for a conditional use permit (CUP) for a marijuana facility (a retail marijuana store) under Troutdale Development Code (TDC) 1.020 in the General Commercial zone (the decision). The City determined that the application did not satisfy TDC 6.320(A) (provides for the planning commission’s approval, with or without modifications, or denial of a CUP, and that the applicant must submit supporting evidence that the application and the proposed use satisfy the listed conditions, including “[t]he use is listed as a conditional use in the underlying district, or approved by the Planning Commission as similar to conditional uses listed in the underlying district”) because of the use’s proximity to a school. The City further determined that the application did not satisfy TDC 6.320(E) (provides for the planning commission’s approval, with or without modifications, or denial of a CUP, and that the applicant must submit supporting evidence that the application and the proposed use satisfy the listed conditions, including “[t]he proposed use, as conditioned, will not cause or not result in the creation of a public nuisance including, but not limited to, air, land, or water degradation, noise, glare, heat, vibration, or other impacts that may be injurious to public health, safety, and welfare”) because the use “may be injurious to public health safety and welfare.”

ORS 197.835(9)(a)(C) provides that LUBA will reverse or remand a land use decision if the Board determines that the local government made the decision unsupported by substantial evidence in the whole record. In their third assignment of error, Applicants argued that the City’s decision is not supported by substantial evidence in the record because the City based its decision on an Oregon Liquor and Cannabis Commission (OLCC) news release regarding workers in the marijuana industry being targeted at gunpoint, public testimony at planning commission hearings regarding the safety concerns, and the fact there was shortage of law enforcement personnel to promptly respond to emergency calls. In part of their second assignment of error, Applicants argued that the evidence in the record supports a determination that the safety concerns were mitigated because Applicants were required to comply with the OLCC rules, which require surveillance and security. The City argued its decision is supported by evidence in the whole record because the evidence the City used to make the decision was evidence a reasonable person would rely on to make the decision. Under ORS 197.835(9)(a)(C), substantial evidence is evidence that a reasonable person would rely on to make a decision. Dodd v. Hood River County, 317 Or 172, 179, 855 P2d 608 (1993). LUBA determined that Applicants (1) did not meet their burden of proof to show that, as a matter of law, Applicants’ compliance with the OLCC rules established compliance with TDC 6.320(E), considering the subjectiveness of the substantial evidence standard and the other evidence in the record, and (2) failed to show that the evidence the City relied upon was not evidence a reasonable person would rely upon.  Accordingly, LUBA held that Applicants’ third and that portion of Applicants’ second assignments of error were denied.

LUBA will affirm a local government’s decision to deny a land use application on multiple grounds if at least one basis for the denial survives all challenges. Wal-Mart Stores, Inc. v. Hood River County, 47 Or LUBA 256, 266, aff’d, 195 Or App 762, 100 P3d 218 (2004). Further, LUBA generally will not address alternate bases for denial because addressing the alternative bases in this circumstance becomes advisory adjudication which is inconsistent with ORS 197.805 (LUBA is required to conduct its review pursuant to sound principles of judicial review). Therefore, LUBA did not address Applicants’ first and the other portion of the second assignments of error.