Catherine Caudle vs. City of Dunes City

LUBA does not have jurisdiction to review a city ordinance appeal when a local government acts pursuant to its authority to prohibit marijuana businesses within its jurisdictional boundaries.

Petitioner appeals Ordinance No. 245 (Ordinance), a city ordinance that bans marijuana businesses in the city.

On petitioner’s first assignment of error, petitioner argued that growing marijuana constitutes “agriculture” which is permitted in Residential (R-1) zoning. LUBA disagreed with petitioner’s first argument because the city has specific authority to prohibit marijuana operations. LUBA noted that “agriculture” remains a permitted use in the R-1 zoning district and that the city’s prohibition is not an exercise of the city’s planning and zoning responsibilities which did not require the use of the city’s comprehensive plan. Further, petitioner argued that the city should have applied six different policies from the city’s comprehensive plan in adopting the Ordinance. Given that petitioner has not established that the cited comprehensive plan provisions establish standards for this type of decision, it would be inconsistent to require the city to consider the comprehensive plan to adopt an ordinance. LUBA concluded that the only standards that apply to the city’s decision to adopt the Ordinance are not land use standards, which fall outside of LUBA’s jurisdiction.

Petitioner next argued that even if the Ordinance is not a “land use decision,” the Ordinance will have a “significant impact” on present and future land uses. LUBA disagreed with petitioner and found that the Ordinance did not qualify as a significant impact land use decision because it did not satisfy the judicially-created significant impacts test. LUBA will exercise review jurisdiction only if petitioner identifies the non-land-use standards that petitioner believes the city applied to its decision. In addition, the identified non-land-use standards must have some bearing or relationship to the use of land. LUBA found that ORS 475B.968 does not contain any standards that bear a relationship to the use of land or the city’s planning and zoning responsibilities nor require a city to use such standards. For this reason, LUBA concluded that when a local government acts pursuant to the authority given to it by the legislature to prohibit some or all marijuana businesses within its jurisdictional boundaries, review of such a decision by LUBA is not appropriate under the significant impacts test. DISMISSED.