King v. Deschutes County

Under DCC 18.116.330(B)(10)(a) and (b), the county must find a proposed marijuana production facility will not unreasonably interfere with the neighbor’s use and enjoyment of their property. The finding must be supported by a report from a licensed engineer.

In the first assignment of error, petitioner challenges the board of county commissioners’ finding of substantial evidence in the record to affirm the approval. In the second assignment of error, petitioner contends the county commissioners’ interpretation of Deschutes County Code 18.116.330(B)(10)(b). Petitioner argues the Engineer’s Report did not satisfy the requirement of DCC 18.116.330(B)(10)(b) because it did not include site-specific and system specific demonstrations for containing odor on the 3,500-foot property. LUBA denies both assignments of error in concurrence. LUBA found that the board of county commissioners did not expressly interpret 18.116.330(B)(10)(b) instead the board rejected petitioner’s interpretation of the “report” requirement.

            LUBA determines the relevant question at issue is whether the county commissioner’s conclusion of satisfaction of DCC 18.116.330(B)(10)(b) is satisfied by substantial evidence in the record. The applicable standard requires a showing that odor control is “likely, reasonably certain to succeed”, to prevent “unreasonable interference with neighbor’s enjoyment and use of property.” Meyer v. City of Portland, 67 Or. App. 274, 280, 678 P.2d 741 (1984).

LUBA held the board could reasonably rely on the Engineer’s Report to conclude the proposed marijuana production facility would not unreasonably interfere with petitioner’s use and enjoyment of land. Petitioner’s third, fourth, fifth, and sixth assignments of error were also denied. AFFIRMED