Waveseer of Oregon, LLC v. Deschutes County

"ORS 215.416(8)(a) generally does not permit a county to develop land use approval standards and criteria through quasi-adjudicative decision-making; the standards must be reasonably discernible from provisions of the code itself." Zirker v. City of Bend, 233 Or App 601, 610, 227 P3d 1174, rev den, 348 Or 415 (2010).

Petitioner sought judicial review of the Land Use Board of Appeals (LUBA)’s reversal of its original decision to allowed Respondent to develop a facility for marijuana production on zoned land designated for exclusive farm use. Respondent’s petition was initially denied because it would be within 1,000 feet of multiple “youth activity centers.” LUBA reversed that decision because the restriction is uncodified and that an applicant would not discern, from the terms of the code, what would be considered a “youth activity center.” because it is not defined in the codes, statutes, or administrative rules and is not listed as permitted zone use.  Petitioner argued the LUBA erred when it stated their interpretation of "youth activity center" was implausible, stated the interpretation violated codification requirements, ignoring Respondents waiver to that arguments, and in reversing its decision under ORS 197.835(10)(a)(A). "ORS 215.416(8)(a) generally does not permit a county to develop land use approval standards and criteria through quasi-adjudicative decision-making; the standards must be reasonably discernible from provisions of the code itself." Zirker v. City of Bend, 233 Or App 601, 610, 227 P3d 1174, rev den, 348 Or 415 (2010). This Court found that Petitioner's application and interpretation of the phrase using a multi-factor check list on a case-by-case basis was largely discretionary and standardless and infringes on the codification requirement in ORS 215.416(8)(a). The Court further noted that LUBA's conclusion about the plausibility of Petitioner's interpretation of the phrase was subject to question and thus concluded that revision of the code is an issue not to be taken up at this time. Affirmed.