Newbrook v. City of Portland

To determine whether the local decision maker’s conclusion is supported by substantial evidence, the evidence must be what a reasonable person would rely on in reaching a decision.

Petitioner appeals a hearings officer’s decision approving an application for environmental review to replace existing wood and foam docks with concrete docks, wood pilings with steel pilings, and wood breakwater with concrete breakwater at a marine moorage facility, portions of which are zoned for Residential (R10) and Residential Farm/Forest (RF). Both R10 and RF prohibit commercial outdoor recreation uses such as the breakwater, pilings, and docks.

Petitioner assigns error to the hearings officer’s conclusion that there was substantial evidence in the record,  including a 1997 building permit, to support its determination that the general commercial use was a legal nonconforming use in the residential zones. Petitioner argues that the 1997 building permit was not a valid permit since it was never actually issued due to the applicant’s failure to identify a special inspector. Because the building permit was not valid, petitioner argues it does not qualify as standard evidence as required for a nonconforming use under the city code. Respondents respond that the hearings officer’s decision was supported by substantial evidence because it included the building permit, along with additional evidence including aerial photos taken in 1996. Because  the building permit was received and fees were paid by the applicant, and because nowhere in the record does it say that the building permit was not issued, LUBA disagrees with petitioner that the building permit was not valid. The hearings officer’s decision that the general commercial use was a legal nonconforming use in the residential zones was therefore supported by substantial evidence in the whole record and the city’s decision is AFFIRMED.