affirming prior land use final order in part and remanding in part
How later courts described this case
- affirming prior land use final order in part and remanding in part
Written by the judges who cited it.
The opinion
1 Filed: February 16, 2012
2
3 IN THE SUPREME COURT OF THE STATE OF OREGON
4
5 WEBER COASTAL BELLS LIMITED PARTNERS,
6 an Oregon limited partnership;
7 PLAID PANTRIES, INC.;
8 and JANTZEN/ANGEL, LLC,
9 Petitioners below,
10
11
12 and
13
14 NORTHEAST COALITION OF NEIGHBORHOODS
15 and COALITION FOR A LIVABLE FUTURE,
16 Petitioners,
17
18 v.
19
20 METRO
21 and TRIMET,
22 Respondents.
23
24 (LUBA 2011-080, 2011-081, 2011-082, 2011-083; SC S059872)
25
26
27 En Banc
28
29 On direct review from the Land Use Board of Appeals under Oregon Laws 1996,
30 chapter 12, section 10.
31
32 Argued and submitted December 6, 2011.
33
34 Sean T. Malone, Eugene, argued the cause and filed the brief for petitioners.
35
36 Mark J. Greenfield, Portland, argued the cause and filed the brief for TriMet.
37 With him on the brief was Richard Benner, Portland, for Metro.
38
39 DE MUNIZ, C. J.
40
41 The opinion of the Land Use Board of Appeals is affirmed, and the land use final
42 order of Metro is affirmed in part and remanded in part, consistent with the opinion of the
43 Land Use Board of Appeals.
1
1 DE MUNIZ, C. J.
2 Petitioners, Northeast Coalition of Neighborhoods and Coalition for a
3 Livable Future, seek direct review under Oregon Laws 1996, chapter 12, of a decision by
4 the Land Use Board of Appeals (LUBA) that affirmed in relevant part a land use final
5 order by respondent Metro.1 The land use final order at issue concerns the Columbia
6 River Crossing Project, which (among other things) would extend a light rail line from
7 Oregon to Washington. Petitioners contend that Metro either exceeded its statutory
8 authority in adopting the order or that its decisions in the order were not supported by
9 substantial evidence. Respondents Metro and Tri-County Metropolitan Transit District of
10 Oregon (TriMet) oppose the petition. We affirm the land use final order.
11 We set out the undisputed facts from the record. The South North MAX
12 Light Rail Project involves the construction of a light rail line from Clackamas Town
13 Center in Happy Valley, Oregon, to Vancouver, Washington, via the cities of Milwaukie
14 and downtown Portland. To aid that project, the legislature enacted a law in 1996 that
15 was never codified into the Oregon Revised Statutes: Or Laws 1996, ch 12. Before
16 turning to the specific issues presented here, we first consider the 1996 act in some detail.
1
In its final opinion and order, LUBA concluded that Metro had exceeded its
authority by including in the land use final order parts of the project that lay outside
Portland's urban growth boundary. Weber Coastal Bells Ltd. Partners v. Metro, ___ Or
LUBA ___, ___ (LUBA Nos. 2011-080, 2011-081, 2011-082, and 2011-083, Oct 26,
2011) (slip op at 11). LUBA remanded those parts of the land use final order, affirming
the remainder of the order. Id. at ___ (slip op at 32). No party has sought review of
LUBA's conclusions regarding the remand, so the remand is not relevant to our
disposition on review.
2
1 Section 2 of the 1996 act explains its purposes. The legislature intended to
2 facilitate the South North MAX Light Rail Project as part of the "transportation system
3 planned for the Portland metropolitan area." Or Laws 1996, ch 12, § 2(1). According to
4 the legislature, that planned transportation system is important to "the ability of the area
5 to implement a significant portion of its air quality and energy efficiency strategies and
6 the ability of affected local governments to implement significant parts of their
7 comprehensive plans." Id.
8 The act established decision-making procedures for the South North MAX
9 Light Rail Project and to provide for expedited appellate review of those decisions. Id.
10 § 2(1)(a) - (c). The procedures are intended to maximize federal funding for the project
11 and to ensure that the project is constructed in a timely and cost-effective manner. Id.
12 Utilization of the decision-making procedures results in a "land use final order," id.
13 § 2(1)(a), a defined term that means:
14 "a written order or orders of [Metro] council deciding:
15 "(a) The light rail route for the project or project extension, including
16 its location;
17 "(b) Stations, lots and maintenance facilities for the project or
18 project extension, including their locations; and
19 "(c) The highway improvements for the project or project extension,
20 including their locations."
21 Id. § 1(13).
22 The procedures that the legislature prescribed in the 1996 act operate as
23 follows. First, the Land Conservation and Development Commission (LCDC) was
24 required to establish the criteria later to be used by Metro to make its decisions leading to
3
1 a land use final order. Id. § 4. (Those criteria since have been adopted.) TriMet then
2 applies to Metro for a land use final order. Id. § 6(1)(a). Metro, using the criteria
3 established by LCDC, follows prescribed procedures to determine whether to enter a land
4 use final order or to refer the matter back to TriMet. Id. §§ 6(1)(b), 7. When Metro
5 adopts a land use final order, that order must be accompanied by findings of fact. Id.
6 § 7(7).
7 Once Metro adopts a land use final order, any challenges to that order first
8 must be made before LUBA. Id. § 9. The only persons or entities who may seek review
9 are those who appeared before Metro, and the only issues that they may raise are those
10 previously presented to Metro. Id. §§ 9(3)(b), 9(4). The process before LUBA is
11 expedited. Among other requirements, LUBA must hear oral argument within 35 days
12 from the date of the notice of intent to appeal, id. § 9(11), and the final opinion of LUBA
13 must issue within 28 days after argument, id.
14 Any party who appeared before LUBA may petition this court for review.
15 Id. § 10(1). Although the process is called a petition for review, it does not follow the
16 ordinary process for petitions for review filed with this court from Court of Appeals
17 decisions. Under the 1996 act, the petition for review, which must be filed within 14
18 days after LUBA's decision, must be in the form of a brief containing argument. Id.
19 § 10(1) ("The petition shall be in the form of a brief and shall state, with particularity and
20 with supporting authority, each reason asserted for reversal or modification of the board's
21 decision."). Any respondent has 14 days to respond; if the party does not file a response,
22 the party's brief before LUBA is treated as the response. Id. § 10(2). The 1996 act does
4
1 not suggest that this court has any discretion as to whether to allow review, and it does
2 not provide for any further briefing; instead, it states only that the matter may be decided
3 on the briefs or proceed to oral argument. Id. § 10(3). This court must "decide the matter
4 at its earliest practicable convenience." Id.
5 At issue here is the fifth land use final order adopted by Metro relating to
6 the South North MAX Light Rail Project. (The first, adopted in 1998, addressed the
7 South North MAX Light Rail Project as a whole. That original land use final order has
8 been amended three times previously by separate land use final orders.) The present land
9 use final order addresses one segment of the South North MAX Light Rail Project,
10 known as the Columbia River Crossing Project. The Columbia River Crossing Project is
11 the portion of the South North MAX Light Rail Project that extends from the Expo
12 Center and the Interstate 5 (I-5)/Victory Boulevard Interchange in north Portland to the
13 Oregon/Washington state line on the Columbia River.
14 Metro's land use final order for the Columbia River Crossing Project
15 approves many highway improvements, and it is the extent of those highway
16 improvements that form the basis of petitioners' objections to the land use final order.
17 Although the land use final order contains less controversial provisions, such as
18 realignment of the light rail route and relocation of the Hayden Island station, it also
19 approves the replacement of the existing I-5 bridges across the Columbia with new
20 northbound and southbound bridges. Only the lower deck of the new southbound bridge
5
1 will carry the light rail line; the upper decks will carry highway traffic.2 The land use
2 final order also approves the following:
3 "widening of Interstate 5 in both directions between approximately N
4 Victory Boulevard and the Oregon/Washington state line on the Columbia
5 River; new or modified interchanges at N Marine Drive, Hayden Island and
6 Victory Boulevard; a new integrated rail/vehicular/bicycle[/]pedestrian
7 bridge connecting Hayden Island with the Expo Center; and roadway
8 realignments, widenings, modifications and new connections within the
9 project area."
10 Petitioners sought review of Metro's land use final order before LUBA,
11 arguing that the land use final order both exceeded Metro's statutory authority and "was
12 not supported by substantial evidence in the whole record." See Or Laws 1996, ch 12,
13 § 9(12)(a)(B), (C) (prescribing standards of review for LUBA). Among other arguments,
14 petitioners asserted that Metro had exceeded its statutory authority by adopting a land use
15 final order that was, they contended, primarily devoted to highway improvements.
16 According to petitioners, the highway improvements that the order approved form 75
17 percent of the cost of the Columbia River Crossing Project. Petitioners asserted that
18 those highway improvements were not sufficiently connected to the light rail project
19 because they were "not needed to mitigate adverse traffic impacts associated with the
20 light rail route, stations, lots or maintenance facilities." Petitioners additionally argued
21 that the land use final order was not supported by substantial evidence because there was
22 no evidence that the highway improvements were necessary for the light rail.
2
The lower deck of the northbound bridge will carry bicycle and pedestrian
traffic.
6
1 LUBA rejected the argument that Metro, in entering its land use final order,
2 had exceeded its statutory authority. Weber Coastal Bells Ltd. Partners v. Metro, ___ Or
3 LUBA ___, ___ (LUBA Nos. 2011-080, 2011-081, 2011-082, and 2011-083, Oct 26,
4 2011) (slip op at 12-16). Initially, LUBA was not persuaded by petitioners' contention
5 that the proportion of cost attributable to highway improvements meant that the project
6 was primarily a highway project, rather than a light rail project. The appropriate focus,
7 LUBA concluded, was on the South North MAX Light Rail Project as a whole, not
8 merely the Columbia River Crossing segment in isolation. As a whole, the South North
9 MAX Light Rail Project is primarily about light rail. Id. at ___ (slip op at 13).
10 LUBA concluded that the 1996 act allowed Metro to choose the highway
11 improvements that could be included in the project. Id. at ___ (slip op at 14) ("The text
12 of the 1996 statute simply provides no basis for limiting the highway improvements that
13 may be included in the Project in the way petitioners argue."). LUBA noted that the act
14 defined the project to include "'the light rail route, stations, lots and maintenance
15 facilities, and any highway improvements to be included in the project.'" Id. at ___ (slip
16 op at 13) (emphasis in original; quoting Or Laws 1996, ch 12, § 1(18)). The definition of
17 "highway improvements" similarly imposed very few limits on what highway
18 improvements could be made part of the project, requiring only that the improvements
19 must have been described in the project's draft and final environmental impact
20 statements:
21 "'Highway improvements' means the highway improvements, if any,
22 to be included in the project or project extension. The highway
23 improvements shall be selected from among the highway improvements, if
7
1 any, described in a Draft Statement or Final Statement for the project or
2 project extension.'"
3 Weber, ___ Or LUBA at ___ (slip op at 13) (emphases in original; quoting Or Laws
4 1996, ch 12, § 1(12)). All the highway improvements at issue here had been described in
5 the draft environmental impact statement. Id.
6 LUBA additionally noted that one of the criteria that LCDC had adopted
7 referred to "associated highway improvements." Id. at ___ (slip op at 15). Even
8 assuming that that criterion limited the highway improvements to those "associated" with
9 the light rail, LUBA concluded that that relationship had been shown: Metro specifically
10 had found that the highway improvements were "necessary to obtain support for the
11 necessary local funding from Washington for the light rail component." Id. at ___ (slip
12 op at 15-16).
13 LUBA also rejected petitioners' claim that the highway improvements had
14 to be supported by substantial evidence showing that they were necessary to the light rail
15 siting. Petitioners had not identified any law requiring such evidence, and LUBA already
16 had concluded that the 1996 act did not require that the improvements be "necessary" to
17 the project. Id. at ___ (slip op at 28).
18 Petitioners timely sought review by this court. See Or Laws 1996, ch 12,
19 § 10(1). They renew the earlier arguments that we have discussed, albeit with some
20 additional elaboration. Respondents did not file a response to the petition for review;
21 accordingly, their brief in LUBA functions as their response. See id. § 10(2). We now
22 turn to the first issue, that is, whether Metro exceeded its statutory authority when it
8
1 adopted the land use final order that included the highway improvements.
2 Petitioners argue that Metro exceeded its statutory authority because Metro
3 has not been given "unbridled discretion" over what highway improvements may be
4 included in the South North MAX Light Rail Project under the 1996 act. Petitioners
5 assert that the highway improvements must have a "sufficient nexus" to the light rail
6 siting. Petitioners contend that the only highway improvements with a "sufficient nexus"
7 are those "in furtherance of or necessitated by the Light Rail siting." The land use final
8 order at issue here, petitioners urge, contains significant highway improvements "that not
9 only dwarf the Light Rail siting but, at times, are unrelated and not necessitated by the
10 Light Rail siting." Petitioners identify the highway improvements to North Marine Drive
11 in particular as not being necessitated by the light rail siting.
12 Petitioners attempt to draw support for their argument from a number of
13 provisions of the 1996 act. In the main, petitioners rely on the definition of "project":
14 "'Project' means the portion of the South North MAX Light Rail
15 Project within the Portland metropolitan area urban growth boundary * * *.
16 The project includes the light rail route, stations, lots and maintenance
17 facilities, and any highway improvements to be included in the project."
18 Id. § 1(18). Because the other items in that list -- "the light rail route, stations, lots and
19 maintenance facilities" -- are all necessary to the light rail, petitioners conclude that a
20 similar restriction should exist regarding "highway improvements."
21 Petitioners also note that a number of provisions of the 1996 act qualify the
22 term "highway improvements" with the prepositional phrase "for the project." See id.
23 § 1(13)(c) (definition of "land use final order" means written order by Metro Council
9
1 determining "[t]he highway improvements for the project"); id. § 3(3) (1996 act
2 establishes the only procedures applicable to land use decisions "on the highway
3 improvements for the project"); id. § 4 (directing LCDC to establish criteria to be used by
4 Metro Council to determine "the highway improvements for the project"); id. § 6(1) (land
5 use final order must establish "the highway improvements for the project"). Petitioners
6 suggest that the phrase "highway improvements for the project" requires that some
7 relationship -- viz., a "substantial nexus" -- exist between the light rail and the highway
8 improvements.
9 For their part, respondents concede that the 1996 act does impose some
10 limits on the highway improvements that may be included within a land use final order.
11 In particular, respondents acknowledge that the highway improvements must be
12 described in the environmental impact statements. See id. § 1(12) (defining "highway
13 improvements" to be those "described in a Draft [Environmental Impact] Statement or
14 Final [Environmental Impact] Statement for the project"). Similarly, respondents do not
15 dispute on review that the highway improvements must be located within Portland's
16 urban growth boundary. See id. § 1(18) (defining "project" to specifically limit it to the
17 portions of the South North MAX Light Rail Project that are "within the Portland
18 metropolitan area urban growth boundary"); Weber, ___ Or LUBA at ___ (slip op at 11,
19 32) (concluding that Metro exceeded its statutory authority in approving "a Project that is
20 not located entirely within the [urban growth boundary]," and remanding those parts of
21 the land use final order that approved project parts lying outside the urban growth
22 boundary).
10
1 Beyond those concessions, however, respondents assert that the 1996 act
2 imposes only very limited restrictions on the highway improvements that may be made
3 part of the project. Relying on the same definition of "project" as petitioners, respondents
4 note that the act states that "[t]he project includes * * * any highway improvements to be
5 included in the project." Or Laws 1996, ch 12, § 1(18) (emphasis added); see also id.
6 § 1(12) (defining "highway improvements" to mean "the highway improvements, if any,
7 to be included in the project" (emphasis added)); id. § 2(1)(a) (purpose of act is "[t]o
8 establish the process to be used in making decisions in a land use final order on * * * any
9 highway improvements to be included in" the project (emphasis added)). Respondents
10 urge that the open-ended term "any" suggests that the legislature did not intend to require
11 any connection between the light rail and the highway improvements.3
12 We need not determine to what extent (if any) the 1996 act requires
13 highway improvements to have a demonstrated relationship to the light rail siting.4 As
3
That summarizes respondents' position before LUBA. At oral argument
before this court, counsel for respondents suggested that the requirement that the highway
improvements be described in the environmental impact statements implicitly required
the highway improvements to have some connection to the light rail project. Counsel did
not cite any law for that proposition, however, and did not explain what sort of
connection might be required.
4
Although we do not decide the question, it is possible that the legislature
did not intend the 1996 act itself to require any particular relationship between the
highway improvements and the light rail; rather, it may have intended to delegate that
function to LCDC. Section 2 of the 1996 act states that one purpose of the act is
"[t]o establish the process to be used in making decisions in a land
use final order on * * * any highway improvements to be included in the
11
1 we shall explain, Metro found that the construction of new highway bridges across the
2 Columbia River were required politically, to obtain the necessary Washington State
3 support for the project. Metro also found that the other highway improvements were
4 necessary either because of the new bridges or because of the light rail itself. Thus, even
5 if petitioners are correct that the 1996 act permits only those highway improvements that
6 are necessary to the light rail siting, that necessity exists for all the highway
7 improvements described in Metro’s land use final order.
8 Metro found -- and petitioners do not dispute -- that the political necessity
9 of new highway bridges over the Columbia was demonstrated early on, and it was
10 entirely beyond the control of Metro. Washington State approval is necessary because
11 the project extends into Vancouver, but the voters of Clark County, Washington, rejected
12 at the ballot box a light-rail-only bridge across the Columbia. As Metro explained, "[i]t
13 was clear from this action that a stand-alone light rail project was not politically
14 acceptable to the voters of Clark County."5 Afterward, a bistate group called the I-5
South North MAX Light Rail project, including their locations[.]"
Or Laws 1996, ch 12, § 2(1)(a). Section 4 provides, in part:
"The Land Conservation and Development Commission shall
establish criteria to be used by [Metro] council in making decisions in a
land use final order on * * * the highway improvements for the project and
project extension, including their locations."
5
More specifically, Metro explained in its findings of fact that the original
project proposal would have crossed the Columbia River
"via a proposed new bridge for light rail transit purposes only west of the
12
1 Transportation and Trade Partnership was formed to examine the question. In its
2 published conclusions, the Partnership explained that the area transportation problems
3 required a comprehensive solution. As Metro later summarized the Partnership's
4 conclusions, Oregon and Washington had different interests: Although "Oregon interests
5 required emphasis on a multi-modal solution * * * because of the difficulty of
6 accommodating [traffic] demand through a highway-only expansion of I-5," Clark
7 County interests "needed a highway element because the land use patterns of Clark
8 County require[] a system with greater dependence on auto access."
9 For those reasons, it was politically impossible for the light rail project to
10 proceed without also building new interstate bridges across the Columbia River:
11 "The Council finds that the Project reflects negotiation and compromise
12 among governmental bodies and that for all practical purposes, the light rail
13 component could not have gone forward without the highway component
14 and the highway component could not have gone forward without the light
15 rail component."
16 Or as Metro later summarized it: "There is no[] light rail without the freeway bridge[s]
17 being replaced." Thus, Metro found, "the highway improvements are necessitated by the
existing I-5/Interstate Bridge. TriMet successfully obtained voter support
of General Obligation Bonds for one-third of the local match in November
1994 by a wide margin. That ballot measure was predicated on a state
legislative contribution of another one-third and a Washington State/Clark
County contribution of the final one-third. In early 1995 the voters of Clark
Co. turned down a ballot measure for their local match contribution[.] It
was clear from this action that a stand-alone light rail project was not
politically acceptable to the voters of Clark County."
(Emphasis added.)
13
1 light rail improvements."
2 Although political realities may have made the new bridges necessary, the
3 bridges themselves made additional highway improvements necessary, including
4 alterations to the North Marine Drive interchanges specifically mentioned by petitioners.6
5 The light rail construction itself also made necessary other changes to North Marine
6 Drive.7 Petitioners do not attempt to refute those findings by Metro.
6
The findings of fact by Metro state:
"The Council further finds that construction of these new bridge
structures will necessitate improvements to the I-5 highway and
interchanges, including the Hayden Island and Marine Drive Interchanges,
and to the local street network that connects those interchanges including
realignments, widening or extensions of or new connections between N
Marine Drive [and other listed streets] * * *. [Metro Council] also finds
that additional highway improvements are needed to integrate the transit
corridor extension into the existing transportation network and to facilitate
multimodal access to and from the existing light rail station at the Expo
Center and a new light rail station at Hayden Island."
Elsewhere in the findings, Metro explained:
"[T]he associated highway improvements directly and indirectly serve the
light rail improvements by accommodating the alignment (e.g., new I-5
bridges, new arterial bridge over the North Portland Harbor) or providing
regional and local access to the Expo Center and Hayden Island light rail
stations (e.g., I-5 interchange improvements, access and circulation
improvements and roadway modifications on Hayden Island and in the
vicinity of the Marine Drive interchange). The Council further finds that
some of the highway improvements are needed for engineering purposes to
accommodate the new bridge containing the light rail alignment and the
modifications to the I-5 interchanges and their approaches."
7
Because the light rail tracks required "grade-separated crossings" with
existing roads, those crossings "necessitate modifications to the I-5/Marine Drive
Interchange and connecting roadways including the realignments of N Vancouver Way
14
1 Petitioners do not address political necessity in the section of their petition
2 contending that Metro lacked statutory authority to adopt the land use final order. In the
3 section arguing that the land use final order was not supported by substantial evidence,
4 however, petitioners assert that political necessity is not sufficient justification for the
5 highway improvements because Metro "relies upon a purely political calculation, which
6 is without factual basis or professional opinion, such as an engineering report."
7 Petitioners maintain that the highway improvements are a political "inducement" that is
8 "not * * * actually in furtherance of or necessitated by the Light Rail siting."
9 To the extent that petitioners maintain that the 1996 act permits only those
10 highway improvements that the light rail siting would require as an engineering matter,
11 we are not persuaded. Petitioners do not identify any part of the 1996 act (or any other
12 authority) that even arguably limits the highway improvements to those made necessary
13 for engineering reasons only, and we are not aware of any. The statutory references to
14 "highway improvements for the project" do not limit the reasons that might make a
15 particular highway improvement necessary for the project. Even accepting petitioners'
16 assertion that the necessity to the light rail of "the light rail route, stations, lots and
17 maintenance facilities" also should be imputed to "highway improvements," nothing
18 about that necessity implies only engineering necessity. We decline to defeat the stated
19 legislative purpose of the 1996 act -- completion of the South North MAX Light Rail
and N Marine Drive."
15
1 Project8 -- by reading an artificial limitation into it.
2 Petitioners also suggest that the land use final order exceeded Metro's
3 statutory authority because the majority of the cost for the Columbia River Crossing
4 Project is for highway improvements, rather than light rail improvements. Assuming for
5 purposes of argument that it is appropriate to compare the cost of the highway
6 improvements to the cost of the light rail,9 we agree with LUBA that individual segments
7 of the project should not be considered in isolation. See Weber, ___ Or LUBA at ___
8 (slip op at 13) (so noting). The 1996 act authorizes individual land use final orders that
9 contain nothing but highway improvements. See Or Laws 1996, ch 12, § 6(2) ("Any
10 siting of * * * a highway improvement outside the locations established in a land use
11 final order, and any new * * * highway improvement, shall require a land use final order
12 amendment or a new land use final order * * *."). The appropriate comparison is
13 between the cost of highway improvements for the whole South North MAX Light Rail
14 Project and the cost of the light rail improvements for the whole South North MAX Light
15 Rail Project. Petitioners have not made any such comparison.
16 In summary, we conclude that Metro did not exceed its statutory authority
8
See Or Laws 1996, ch 12, § 2(1) (act is intended "to assure the timely and
cost-effective construction of the project").
9
It is questionable whether a simple weighing of expense determines
whether the project is primarily for purposes of light rail. For example, light rail
construction might so disrupt existing roads that it would require significantly more
expensive, but wholly necessary, highway improvements.
16
1 when it approved the land use final order containing these highway improvements. Even
2 if the 1996 act limits highway improvements to those made necessary by the light rail
3 siting, we conclude that the authority granted by the 1996 act is not limited to engineering
4 necessity. The statutory authority granted to Metro included authority to approve
5 highway improvements that political realities made necessary to the light rail project, at
6 least when those political realities are not within Metro's control.10
7 Nonetheless, petitioners argue alternatively that no substantial evidence
8 supported Metro's finding that the highway improvements were politically necessary. As
9 quoted earlier, petitioners assert that Metro's finding of political necessity "is without
10 factual basis or professional opinion, such as an engineering report."
11 The 1996 act prescribes that the land use final order must be remanded if
12 we conclude that Metro
13 "[m]ade a decision in the land use final order on the light rail route, on
14 stations, lots or maintenance facilities, or the highway improvements,
15 including their locations, that was not supported by substantial evidence in
16 the whole record. The existence in the whole record of substantial evidence
17 supporting a different decision on the light rail route, stations, lots or
18 maintenance facilities, or the highway improvements, including their
19 locations, shall not be a ground for remand if there also was substantial
20 evidence in the whole record supporting the land use final order."
21 Or Laws 1996, ch 12, § 9(12)(a)(C) (setting out standard of review to be used by LUBA);
22 see id. § 10(4) (directing this court to use the same standard or review as LUBA).
10
In so concluding, we do not address whether the highway improvements
approved by the land use final order were required to comply or did in fact comply with
any requirements that may be imposed by other statutes or land use regulations.
17
1 We reject petitioners' claim that the political necessity found by Metro
2 lacked a factual basis. Petitioners do not dispute that Clark County voters previously
3 rejected a light-rail-only bridge, neither do they claim that any particular finding by
4 Metro was unsupported by the record. Instead, petitioners' argument seems to be merely
5 a variant of their suggestion that political necessity is insufficient as a matter of law --
6 that is, that no substantial evidence supported Metro’s inclusion of the highway
7 improvements, because evidence of political necessity is irrelevant. Because we already
8 have concluded that political necessity was a permissible reason for Metro to authorize
9 those highway improvements contained in its land use final order, evidence of that
10 political necessity is relevant. We conclude that substantial evidence in the record
11 supported the highway improvements contained in Metro’s land use final order.
12 Petitioners thus have failed to show that Metro either exceeded its statutory
13 authority or made a decision about the highway improvements that was not supported by
14 substantial evidence on the whole record. Because petitioners have not demonstrated a
15 basis for remanding any portion of the land use final order, we must affirm. Or Laws
16 1996, ch 12, § 9(12) (listing exclusive reasons for remanding land use final order); id.
17 § 10(4) ("The court shall affirm all parts of the final order that it does not remand.").
18 The opinion of the Land Use Board of Appeals is affirmed, and the land
19 use final order of Metro is affirmed in part and remanded in part, consistent with the
20 opinion of the Land Use Board of Appeals.
18