I <br />2 <br />3 <br />4 <br />5 <br />6 <br />7 <br />8 <br />9 <br />10 <br />11 <br />12 <br />13 <br />14 <br />15 <br />16 <br />17 <br />18 <br />19 <br />20 <br />21 <br />22 <br />23 <br />24 <br />25 <br />26 <br />CITY OF EUGENE <br />CITY ATTORNEY'5 <br />OFFICE <br />125 E. a Avenue <br />Eugene, OR 97401 <br />Phone (541) 682-8447 <br />Fax(541)682-5414 <br />petition." Rec. 1268-69. <br />The Hearings Official and Planning Commission considered all of the <br />evidence before it, weighed that evidence, and determined that there was no <br />safety concern with the anticipated increased traffic generated from the <br />proposed development. Both the Hearings Official and the Planning <br />Commission determined that the safety concerns voiced by the neighbors <br />were simply not supported by the record. Rec. 485; Rec. 49, cited infra n 11. <br />LUBA is not at liberty to reweigh the evidence. Younger v. City of <br />Portland, 305 Or 346, 358-60, 752 P2d 262 (1988) (In deciding whether a <br />challenged decision is supported by substantial evidence in the whole record; <br />we are required to consider whether evidence supporting the decision is <br />refuted or undermined by other evidence in the record, but we cannot <br />reweigh the evidence.); Harwood v. Lane County, 23 Or LUBA 191, 198 <br />(1992) (Where evidence is conflicting and the contrary evidence does not so <br />undermine the evidence relied upon by the local decision maker that it is <br />unreasonable for the decision maker to rely upon it, the choice between such <br />conflicting believable evidence belongs to the local government decision <br />maker, and LUBA will not disturb that choice.). Quite simply, Intervenor's <br />disagreement with the local government's decision with regard to the alleged <br />'The Hearings Official found: <br />"Although the Hearings Official understands the neighbors' concerns <br />about increased numbers of vehicles using Oaklei h Lane, the strong <br />assertion that an increase in ADT will result in traffic accidents or <br />actual danger to pedestrians and bicyclists is not supported by <br />evidence in the record. Assertion is not evidence, and neither is an <br />explanation of inductive reasoning. Therefore the Hearings Official <br />cannot substitute the neighbors' very strongly held opinions that more <br />cars will necessarily decrease traffic safety for actual evidence." Rec. <br />48 (emphasis in original). <br />Page 11 - BRIEF OF REspONDENT <br />