Backer v. City of Salem

As part of a limited land use decision, LUBA will affirm a local government’s interpretation of its local codes provided their decision includes the standards and criteria used as required under ORS 197.195(4) and is supported by substantial evidence such that a reasonable person viewing the record as a whole could reach the conclusion the decisionmaker did.

Petitioners appealed the City's approval of a revised subdivision plan that would remove six trees considered “significant” under the Salem Revised Code (SRC). The applicant’s first proposed subdivision plan required removal of seventeen of twenty-eight “significant trees” on the subject property, and the City voted tentatively to deny the application. The applicant then submitted a redesigned plan with slightly lower density that would instead remove six of the twenty-eight “significant trees.” During the open record period, opponents of the plan submitted an alternative collector road alignment that would avoid the significant trees. The SRC required that there be “no reasonable design alternatives that would enable the preservation of such trees” in order to remove a “significant tree.” The City interpreted the “reasonable design alternatives” standard to mean that “there is no alternative design for the proposed development that would not otherwise require adjustments or exceptions to the applicable standards or required public or private infrastructure improvements required to serve the development[.]” The City reasoned that requiring a plan that would itself require either numerous exceptions to the SRC or infeasible alterations to avoid the trees was not reasonable. The City concluded the trees that the applicant proposed to remove in their revised plan would be necessary in order to comply with the SRC’s provisions for street design, and that the opponents’ alternative alignment would not be in conformance with numerous parts of the SRC. The City approved the application.

On appeal to LUBA, Petitioners made two assignments of error, the first of which LUBA primarily focused on: that the City misconstrued the “no reasonable design alternatives” provision by not requiring the applicant to submit multiple alternatives and show why none were feasible, the City’s decision was not supported by substantial evidence in the record, and the City’s findings were insufficient. The applicant, as Intervenor, argued that the express language of the provision did not require the submission of multiple design alternatives, that Intervenor had in fact revised their plan to an alternative design to preserve as many significant trees as feasible by reducing the number of lots in the subdivision, and that the City’s decision was supported by substantial evidence.

Under ORS 197.828(2) “LUBA shall reverse or remand a limited land use decision if: (a) [t]he decision is not supported by substantial evidence in the record. The existence of evidence in the record supporting a different decision shall not be grounds for reversal or remand if there is evidence in the record to support the final decision[.]” “In reviewing a substantial evidence challenge, LUBA's role is not to reweigh the evidence but, rather, to determine if a reasonable person, viewing the whole record, could reach the conclusion that the decision-maker reached.” 1000 Friends of Oregon v. Marion County, 116 Or. App. 584, 587-88 (1992). The local government’s final decision, however, must “be based upon and accompanied by a brief statement that explains the criteria and standards considered relevant to the decision, states the facts relied upon in rendering the decision and explains the justification for the decision based on the criteria, standards and facts set forth." ORS 197.195(4).

LUBA denied Petitioners’ first assignment of error, pointing out that Petitioners did not challenge the City’s interpretation of the “no reasonable design alternatives” provision, and LUBA agreed that there was nothing in the express language of the provision that required the submission of multiple alternative designs as Petitioners argued. As the local government’s interpretation required deference and it was not inconsistent with the express language, LUBA affirmed the City’s interpretation. LUBA reasoned that the City “has some latitude in finding that there are no reasonable design alternatives,” and the City could determine the opponents’ proposed alternative was not reasonable due to certain infeasible design features. LUBA finally concluded that the City’s findings were adequate under ORS 197.195(4) because they explained the criteria and standards the City used in reaching its decision and included alternatives to account for the possibility the provision may not apply, and Petitioners had not pointed out any discrepancy in the findings that rendered them inadequate.

Affirmed.