|
}'age 0 et 1Z
<br />
<br /> 301 F.Supp.2d 1251
<br />· (Cite as: 301 F.Supp.2d 1251)' Page 5
<br />
<br /> ~ Adm!nJstrative Procedures Act. See, e.g., Preferred .showing the decision was not supported by
<br /> Sites, LLC v. Troup County, 296 F.3d 1210, 1218 substantial evidence. See/d. at 830.
<br /> (llth Cir.2002); Todd, 244 F.3d at 58; Omnipoint
<br /> Corp., lB1 F,3d at 407-08; Cellular Tel. Co. v. At the outset, the terms of the applicable zoning
<br /> Town of Oyster Bay, 166 F.3d 490, 494 (2d orrlln,nce must be evaluated. The ordinance at
<br /> Cir. 1999); MetroPC$, Inc. v. City & County of San issue here directs the city to reject a proposed
<br /> Francisco, 259 F.Supp.2d 1004, 1009 conditional use when it concludes permitting the use
<br /> (N.D.Cal.2003). Although. the TCA does not itself would not be in the "public interest" or would have
<br /> define "substantial evidence," legislative history "a substantial adverse effect on the rights of the
<br /> supports the decision to follow the Administrative owners of surrounding properties." I-LEO § 83(9).
<br /> Procedures' Act standard. See H.R. Conf. Rep. In this case, the city made both Of these findings,
<br /> 104-458, 'at 208, reprinted in 1996 U.S.C.C.A.N. Which plaintiff challenges.
<br /> 124, at 223 (stating TCA standard is intended as
<br /> "the traditional standard used for judicial review of The city council interpreted "public interest," as
<br /> agency actions"). Substantial evidence, therefore, used in the ordinance, to contemplate a
<br /> ~ means" 'such relevant evidence as a reasonable consideration of the public health,, safety, and
<br /> mind might accept as adequate to support a welfare of the community. R.38. The council
<br /> conclusion.' "Pierce v. Underwood, 487 U.S. 552, further concluded the ordinance's "substantial
<br /> 565, 108 S.Ct 2541, 101 L.Ed.2d 490 (1988) 'adverse effect" language does not require any
<br /> (quo~ng Consolidated Edison Co. v. NLRB, 305' property-value devaluation but instead contemplates
<br /> 'U.S. 197, 229, 59 S.Ct. 206, 83 LEd. 126 0938)). a consideration of 'whether an '1257 owner's
<br /> Substantial evidence is not 'a large or considerable ' property use and enjoyment will be affected by the
<br /> amount of evidence," and the fact two different proposed use~ R.40.
<br /> conclusions could have been reached does not mean
<br /> there is not substantial evidence. Id./see also Todd, [2] As with most such zoning ordinances, the
<br /> 244 F.3d at 58-59. As measured by degree, open-ended nature of the ordinance's
<br /> substantial evidence i~ usually considered to be conditional-use criteria evinces an intent to grant
<br /> ~ "more than a mere scintilla'' and less than a wide discretion to the zoning board when making
<br /> preponderance. Universal Camera Corp. v. NLRB, conditional-use decisions. Cf. $chad v. Borough of
<br /> 340 U.S. 474, 477, 71 S.Ct. 456, 95 LEd. 456 Mt. Ephraim, 452 U.S. 61, 68, 101 S.Ct. 2176, 68
<br /> (1951). In short, the governing standard is "highly L.Ed.2d 671 (1981) ("The power of local
<br /> deferential" to the local governmenfs decision but governments to zone and control land use is
<br /> does not amount to a mere mbber stamp. Second undoubtedly broad and its proper exercise is an
<br /> Generation Props., .L.P.v. Town of Pelham, 313 essential aspect of achieving a satisfactory quality
<br /> F.3d 620, 627 (lst Cir.2002). The court must of life...."); Berman v. Parker, 348 U.S. 26, 33, 75
<br /> 'examine the entire record, including evidence S.Ct 98, 99 LEd. 27 (1954) ("The concept of the
<br /> contradictory to the local governmenfs decision, in public welfare is broad and inclusive. The values it
<br /> determining whether substantial evidence supports represents are' spiritual as well as physical, aesthetic
<br /> the decision. See Todd, 244 F.3d at 58; MetroPC$, as well as monetary. It is within the power of the
<br /> 259 F.Supp.2d at 1010. legislature to determine that the comm~lity should
<br /> be beautiful as well as healthy .... "(citation
<br /> In searching for substantial evidence, the omitted)). And under well-established Oregon law,
<br /> government's decision is analyzed under the a city can prohibit a proposed use of property "on
<br /> applicable zoning ordinance; " '[t]he TCA's the sole ground that the use is offensive to aesthetic
<br /> substantial evidence test is a procedural safeguard sensibilities." Oregon City v. Hartke, 240 Or. 35,
<br /> which is centrally directed at whether the local 46, 49, 400 P.2d 255 (1965). Accordingly, in light
<br /> zoning authority's decision is consistent with the of the applicable ordinance's broad language, the
<br /> applicable zoning requirements.'" VoiceStream city had the power to deny plaintiffs permit on
<br /> Minneapolis, Inc. v. St. Croix County, 342 F.3d grounds of "aesthetic considerations." Oregon City,
<br /> 818, 830 (Tth Cir.2003) (quoting ATC Realty, LLC 240 Or. at 49, 400 P.2d 255. The TCA, however,
<br /> v. Town of Kingston, 303 F.3dgl, 94 (lst Cir.2002) requires this court to evaluate the evidence to
<br /> ). The party seeking to. ovemun the local ensure the city's decision was not "irrational or
<br /> government's decision carries the burden of substanceless." S~e Todd, 244 F.3d at 57.
<br />
<br /> Copt. © West 2004 No Claim to Orig. U.S. Govt. Works
<br />
<br /> IV-62
<br />
<br /> http://print'westlaw'c°m/delivery.html?dest=atp&dataid=AO055800000066180001978611... 4/14/2004
<br />
<br />
<br />
|