Wetherell v. Douglas County, 2005-174.

• Decision Date: 23 October 2006
• Docket Number: 2005-174.,A132504.
• Citation: 146 P.3d 343,209 Or. App. 1
• Parties: Shelley WETHERELL, Respondent, v. DOUGLAS COUNTY, Respondent, and Umpqua Pacific Resources Company, Inc., Petitioner.
• Court: Oregon Court of Appeals

Page 343

146 P.3d 343

209 Or. App. 1

Shelley WETHERELL, Respondent, v. DOUGLAS COUNTY, Respondent, and Umpqua Pacific Resources Company, Inc., Petitioner.

2005-174.

A132504.

Court of Appeals of Oregon.

Argued and Submitted July 25, 2006.

Decided October 23, 2006.

Stephen Mountainspring, Roseburg, argued the cause for petitioner. With him on the brief was Dole, Coalwell, Clark, Mountainspring, Mornarich & Aitken, P.C.

Respondent Shelley Wetherell waived appearance pro se.

No appearance for respondent Douglas County.

Before SCHUMAN, Presiding Judge, and LANDAU^* and ORTEGA, Judges.

SCHUMAN, P.J.

Douglas County approved a plan by Umpqua Pacific Resources Company, Inc. (Umpqua) to build a nonfarm dwelling in a zone designated for exclusive farm use, despite objections from Wetherell. Wetherell appealed the approval to the Land Use Board of Appeals (LUBA), which rejected the county's approval because, among other reasons, Umpqua had failed to produce substantial evidence that the land on which it wanted to build was unsuitable for farm, livestock, or timber use. Wetherell v. Douglas County, 51 Or LUBA 699, 713-14 (2006). Consequently, LUBA remanded the case to the county. Umpqua seeks judicial review, and we affirm.

Umpqua owns a three-acre parcel in Douglas County that has served as a vineyard for more than 30 years. The property is in an exclusive farm use (EFU) zone regulated by ORS 215.203 to 215.311. Under those statutes Umpqua may not build a dwelling on the vineyard unless the property, or a discrete parcel within the property, is (among other things) "generally unsuitable land for the production of farm crops and livestock or merchantable tree species." ORS 215.284(2)(b).¹ When Umpqua sought approval from the county for a nonfarm dwelling on the vineyard, it presented a report by a soil scientist stating that a .3-acre lot within the larger parcel consisted of inferior quality soil. The report noted that the vines in the .3-acre lot were stunted and less vigorous than the vines in the rest of the parcel and concluded that the soils "render this portion of the property generally unsuitable for the production of farm crops and livestock or merchantable tree species." Wetherell, however, submitted photographic evidence that she claimed showed healthy vines on the .3-acre lot. Further, two horticulture experts submitted letters stating that they had viewed the vineyard at separate times and that the entire three-acre parcel, including the .3-acre lot, appeared to have healthy vines. In addition, a neighbor submitted written testimony that strawberries, wheat, grain, and buckwheat were grown on the .3-acre lot before it was a vineyard. Based on the evidence presented, the county planning commission found that the .3-acre lot was generally unsuitable for farm, livestock, or timber use.

Wetherell appealed to LUBA, arguing that no substantial evidence supported the county's finding that the .3-acre parcel was unsuitable, and that, in any event, the county erred in concluding that "necessary amenities" to a dwelling such as a well, septic tank, and driveway, could be located outside of the unsuitable lot if the dwelling house itself was located within it.² LUBA agreed. Umpqua seeks judicial review.

We begin with the unsuitability issue because it is dispositive. When reviewing a land use decision, LUBA may reverse or remand if the local government's decision is based on facts that are "not supported by substantial evidence in the whole record." ORS 197.835(9)(a)(C). A finding of fact is supported by substantial evidence if the record, viewed as a whole, permits a reasonable person to make that finding. Younger v. City of Portland, 305 Or. 346, 360, 752 P.2d 262 (1988). In turn, our 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. Id. at 358-59, 752 P.2d 262. ("[W]here LUBA has properly understood and applied the `substantial evidence' test * * *, a reviewing court should affirm its order[.]"). We are not required to accept LUBA's evaluation of substantiality, however, if 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[.]" Id. at 359, 752 P.2d 262.

The portion of LUBA's order rejecting the county's finding of fact regarding suitability states:

"[T]he county's conclusion that the .3-acre portion is...