Devin Oil Co. Inc v. Morrow County

• Decision Date: 30 June 2010
• Docket Number: 2009103,A144750.
• Citation: 235 P.3d 705,236 Or.App. 164
• Parties: DEVIN OIL CO., INC., Petitioner,v.MORROW COUNTY; Greg Flowers; and Love's Travel Stops & Country Stores, Inc., Respondents.
• Court: Oregon Court of Appeals

236 Or.App. 164

235 P.3d 705

DEVIN OIL CO., INC., Petitioner,v.MORROW COUNTY; Greg Flowers; and Love's Travel Stops & Country Stores, Inc., Respondents.

2009103; A144750.

Court of Appeals of Oregon.

Argued and Submitted April 9, 2010.

Decided June 30, 2010.

E. Michael Connors, Portland, argued the cause for petitioner. With him on the brief was Davis Wright Tremaine LLP.

William K. Kabeiseman, Portland, argued the cause for respondents. With him on the brief were Jennifer Brager, Garvey Schubert Barer, and Ryan M. Swinburnson.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and ROSENBLUM, Judge.

SCHUMAN, P.J.

Morrow County approved the City of Boardman's application to partition a parcel of land so that the city could sell one of the resulting parcels to a private developer who planned to build a travel center. Petitioner, Devin Oil Co., an existing nearby business that would compete with the travel center, opposed the partition and, ultimately, appealed the approval to the Land Use Board of Appeals (LUBA). LUBA sustained some of petitioner's assignments of error, rejected some, and remanded. Petitioner now seeks judicial review of LUBA's remand, arguing that LUBA should have sustained all of its assignments of error. We affirm.

The facts, which we take from LUBA's order, are undisputed. The subject property is a 456-acre parcel of land owned by the city. On behalf of the city and Love's Travel Stops and Country Stores (Love's), Greg Flowers, who is a surveyor for an engineering firm hired by Love's, filed an application to partition the subject property into two parcels. One of the resulting parcels would be 49 acres in size and the other would be 407 acres. Love's planned to buy the 49-acre parcel (the small parcel) from the city and pursue development of the travel center. Although the application did not describe what the contemplated travel center would include, it is undisputed that it would be expected to consist of some or all of the following: “automobile and truck fueling stations, truck wash, truck repair shop, convenience store and/or restaurant.” Because the subject property is currently zoned “Space Age Industrial,” a zone change would be necessary before a travel center could be approved. Further, before the travel center could actually be built, Love's would be required to obtain the necessary permits.

Flowers (as noted, a registered land surveyor for the engineering firm hired by Love's) testified in support of the application. Following a hearing, the county's planning commission voted to approve the partition. Petitioner appealed the approval to the county court which, after a hearing, affirmed. Petitioner then appealed to LUBA, raising a number of assignments of error.

On appeal, petitioner's first argument was that the county had erred in ruling that it did not need to determine that the property was “suited” for a travel center. LUBA agreed, relying on Morrow County Subdivision Ordinance (MCSO) 5.030(2), the relevant portion of which provides that a partition application may not be approved unless “[e]ach parcel is suited for the use intended or offered; including, but not limited to, size of the parcels, topography, sewage disposal approval and guaranteed access.” However, LUBA did not reverse the county's decision on that basis because it agreed with the county's alternative finding that the record demonstrated that the parcel was, in fact, suitable for a travel center. In addition LUBA upheld the county's conclusion that MCSO 5.030(3), requiring a finding that “[a]ll required public service and facilities are available and adequate,” did not apply in this case to water supply, sewage disposal, and stormwater disposal, because those aspects of the development were not “public service[s] and facilities” but, instead, would be provided on-site by the landowner. Nonetheless, LUBA remanded the county's decision because it concluded that the record before it did not adequately demonstrate that the small parcel would have “guaranteed access” as required by MCSO 5.030(2). Respondents do not seek judicial review of that part of LUBA's opinion.

“[O]ur role on judicial review of LUBA's order is to ensure that LUBA has followed the proper ‘substantial evidence’ standard in reviewing the county's decision.” Wetherell v. Douglas County, 209 Or.App. 1, 4, 146 P.3d 343 (2006). LUBA considers all the evidence in the record in evaluating whether a finding is supported by substantial evidence and determines whether the evidence would permit a reasonable person to make that finding. Citizens for Responsibility v. Lane County, 218 Or.App. 339, 345, 180 P.3d 35 (2008); Wetherell, 209 Or.App. at 4, 146 P.3d 343. Where LUBA properly articulates the substantial evidence standard of review, we will affirm unless there is no evidence to support the finding or the evidence in the case is “so at odds with LUBA's evaluation that a reviewing court could infer that LUBA had misunderstood or misapplied its scope of review[.]” Younger v. City of Portland, 305 Or. 346, 359, 752 P.2d 262 (1988).

In its first assignment of error, petitioner contends that, in upholding the county's determination that the property is “suited” for use as a travel center, LUBA failed to properly apply substantial evidence review. According to petitioner, LUBA instead created and applied a lesser standard and, thereby, acted contrary to “long recognized evidentiary standards, the express language and purpose of MCSO 5.030, ORS 92.044 and this [c]ourt's” decision in Mountain West Investment Corp. v. City of Silverton, 175 Or.App. 556, 30 P.3d 420 (2001).¹ (Boldface omitted.) Further, petitioner argues, LUBA erred not only by applying the wrong standard, but in misapplying the standard that it did apply by requiring petitioner to establish non suitability, when the proper allocation of the burden is to require respondents to establish suitability. Respondents counter that LUBA did not apply some lesser evidentiary standard or shift the burden as petitioner contends, but instead “properly articulated and applied the substantial evidence standard in reviewing the County's decision[.]” We agree with respondents.

Petitioner's argument in this regard primarily relies on a limited portion of LUBA's opinion. In rejecting petitioner's argument that “unsupported assurances by [Flowers, the applicant's surveyor,] are not sufficient to constitute substantial evidence that a proposal complies with approval standards,” LUBA first noted that Flowers was reporting the conclusions of his company's engineers, and then stated:

“While such testimony might not constitute substantial evidence if the application were to approve a specific development and its facilities under more focused and rigorous development standards, for purposes of approving a partition under MC[S]O 5.030(2) we disagree with petitioner that only direct testimony from an engineer is sufficient to constitute substantial evidence that [the small parcel] is suited for a travel center[.]”

(Emphasis in original). The correct (indeed, the only) meaning of that passage is not that LUBA applied a lower standard of review; it is that “substantial evidence” of suitability, that is, substantial evidence at a preliminary stage of the approval process that generally occurs “for purposes of approving a partition” before the applicant has conducted engineering studies or drawn up detailed plans, is different from substantial evidence at a later stage seeking approval of “a specific development and its facilities under more focused and rigorous development standards.” “Substantial evidence” is not a phrase that has an unvarying meaning standing alone; it always refers to substantial evidence in support of something-in particular, of “a finding.” See ORS 183.482(8)(c). Substantial evidence in support of a finding that a preliminary plan is suitable, LUBA correctly explained, is simply not the same thing as substantial evidence in support of a finding that a final plan is in complete compliance with “rigorous development standards.”

Petitioner's “burden shifting” argument is equally unpersuasive. “Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding.” ORS 183.482(8)(c). In its review of the record, LUBA observed...