Levy v. Jackson County

ORS 197.825(2)(a) requires petitioners to exhaust all remedies available by right before petitioning LUBA for review. Regardless of whether Jackson County Land Development Ordinance 2.7.5 (D)(1) includes provisions that are permissive or mandatory, they are remedies that must be exhausted before LUBA has jurisdiction.

Petitioner appeals a county planning director’s decision denying petitioner’s application for nonconforming use and verification for a medical marijuana production facility on land zoned Rural Residential-5(A)(RR-5(A)). Respondent moves to dismiss the appeal, claiming LUBA lacks jurisdiction over petitioner’s direct appeal to LUBA from a tentative staff decision by a planning director. Respondent cites the Jackson County Land Development Ordinance (LDO) 2.7.5(D)(1) as providing petitioner with remedies that must be used before appealing to LUBA under ORS 197.825(2)(a). Petitioner argues that the provisions for appeal under LDO 2.7.5(D)(1) are permissive, not mandatory, and therefore petitioner may appeal directly to LUBA. LUBA agrees with respondent, stating that regardless of whether these provisions are permissive or mandatory, these are remedies that must be sought before LUBA may have jurisdiction to hear the appeal.

Moreover, LUBA finds that even if petitioner did exhaust the remedies provided under the Jackson County LDO, petitioner still does not meet the exceptions outlined in ORS 197.830(4). Therefore, because petitioner failed to exhaust the remedies available to him meet the exceptions outlined in ORS 197.830(4), LUBA agrees with respondent that it lacks the jurisdiction required to hear this appeal. DISMISSED.