Fernandez v. City of Portland

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Land Use
  • Date Filed: 03-02-2016
  • Case #: 2015-051
  • Judge(s)/Court Below: Opinion by Holstun
  • Full Text Opinion

When reviewing substantial evidence challenges to critical findings of fact, the standard that LUBA is required to apply is whether the local government’s findings are supported by the evidentiary record, viewed as a whole, and in reviewing such challenges LUBA cannot reweigh evidence or assess whether it would have adopted the same findings but must rather determine whether the findings were “reasonable” based on the evidence presented; where a local government’s findings are supported by credible expert evidence that contradicts contentions to the contrary, the local government’s findings will likely be deemed supported by substantial evidence. See, e.g., Younger v. City of Portland, 305 Or 346 (1988); Dodd v. Hood River County, 317 Or 172 (1993); and, 1000 Friends of Oregon v. Marion County, 116 Or App 584 (1992).

Petitioner Scott Fernandez appealed a city council (council) decision granting demolition review approval to remove two historic reservoirs. The city’s proposed redevelopment included, in part, a below-ground reservoir, a tiered reflecting pool, and a stormwater swale. In order to have demolition review, an applicant must meet one of two criteria under Portland City Code (PCC) §§ 33.846.080(C)(1) and (2). The council applied subsection (2), which requires that demolition be balanced with the goals and policies of relevant area plans, and contains six suggestive factors to evaluate. The PCC only requires that the city find the proposed demolition supportive of the comprehensive plan. The council held that the demolition satisfied the applicable goals, holding its main concerns were the drinking water regulations and threat of landslide.

Fernandez appealed the council’s: (1) failure to impose a requirement that construction of the proposed redevelopment be a condition of the approval; (2) interpretation that PCC 33.846.080(C)(2) was satisfied based on the comparative value of the redevelopment versus the intact historic resource; (3) interpretation that PCC 33.846.080(C)(2) allowed consideration of the feasibility of “undertaking the Redevelopment elsewhere,” meaning an applicant could achieve compliance by merely “proposing a redevelopment that is feasible only on the demolition site[;]” and, (4) factual findings as unsupported by substantial evidence. LUBA denied all four subassignments of error, determining that: (1) applications for the additional land use reviews, required to construct the redevelopment, had been submitted and were pending city review, providing realistic assurance of redevelopment; (2) the city’s interpretation of PCC 33.846.080(C)(2) was consistent with the text and therefore enjoyed Siporen deference; (3) no findings were made regarding the “feasibility of undertaking the Redevelopment elsewhere[;]” and, (4) factual findings regarding the potential landslide danger and the futility of efforts to preserve the reservoirs were supported by substantial evidence. AFFIRMED.