S. ST. HELENS, LLC, Petitioner,
CITY OF ST. HELENS, Respondent
Argued and Submitted: April 14, 2015.
2014067. Land Use Board of Appeals.
Andrew H. Stamp argued the cause for petitioner. With him on the brief was Andrew H. Stamp, P.C.
Timothy V. Ramis argued the cause for respondent. With him on the brief was Jordan Ramis PC.
Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.
[271 Or.App. 681] FLYNN, J.
Petitioner seeks review of a decision by the Land Use Board of Appeals (LUBA) that affirmed the City of St. Helens' denial of petitioner's application for a sensitive lands permit to remove rock from a wetland protection area. We conclude that LUBA properly understood and applied the correct standard of review and affirm its decision.
A detailed recitation of the facts of this case is unnecessary for purposes of explaining our decision. Petitioner owns property within the City of St. Helens that is zoned " Apartment Residential" (AR) or " General Residential" (R5). A significant part of the property is a camas basalt bluff, which sits at a much higher grade than the surrounding property. Petitioner proposed to remove the basalt bluff as well as basalt below the grade of the surrounding property, and to then add fill that would level the property for the development of duplexes.
Because petitioner's proposal would have required removal of rock within a protected wetland area, petitioner applied for a sensitive lands permit. The city denied the permit on the alternative grounds that (1) petitioner's proposed excavation constituted " natural mineral resources development" under the city's code, which was not allowed in the AR or R5 zones, and (2) even if the excavation of basalt was not " natural mineral resources development," it nevertheless was not a " listed" use in AR or R5 zones and did not meet the criteria for approval as an unlisted use. LUBA affirmed the city's decision.
On judicial review, petitioner argues that LUBA erred in various respects by approving the city's denial of petitioner's permit application. To the extent that petitioner's arguments are directed at LUBA's view of the evidence, including evidence that petitioner would be engaged in " mining," those arguments fail under our standard of review. As we explained in Stevens v. City of Island City, 260 Or.App. 768, 772, 324 P.3d 477 (2014), our role on review is limited:
" When reviewing a land use decision, LUBA may reverse or remand the local government's decision if the decision is [271 Or.App. 682] based on facts that are 'not supported by substantial evidence in the whole record.' ORS 197.835(9)(a)(C). If, viewing the record as a whole, a reasonable person could make the disputed factual finding, then the finding is supported by substantial evidence. Wetherell v. Douglas County, 209 Or.App. 1, 4, 146 P.3d 343 (2006) (citing Younger v. City of Portland, 305 Or. 346, 360, 752 P.2d 262 (1988)). So long as that standard is met, LUBA cannot substitute its view of the evidence for that of the local government. 1000 Friends of Oregon v. Marion County, 116 Or.App. 584, 587, 842 P.2d 441 (1992) (citing Younger, 305 Or. at 360).
" Our role on judicial review of LUBA's order is even more circumscribed: We examine whether LUBA has applied the proper substantial-evidence standard of review. Citizens for Responsibility v. Lane County, 218 Or.App. 339, 344, 180 P.3d 35 (2008). '[W]here LUBA has properly understood and applied the " substantial[-]evidence" test ***, a reviewing court should affirm its order, notwithstanding the reviewing court's disagreement with LUBA as to whether the evidence is " substantial." ' Younger, 305 Or. at 358-59. Thus, where LUBA properly articulates its substantial-evidence standard of review under ORS 197.835(9)(a)(C), we will not reverse its ...